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 I
 
 CAUSES 
 
 C E L E B R E S 
 
 VOL. IV.
 
 TRIAL 
 
 OF 
 
 AARON BURR 
 
 FOR 
 
 TREASON 
 
 COUNSELLOR AT LAW 
 
 VOL. I 
 
 JERSEY CITY: 
 FREDERICK D. LINN & CO., 
 
 1879.
 
 PREFACE. 
 
 AMONG all the deeds of wonderful projected adventures 
 devised by an astute, sagacious, and practical mind, none 
 that the world had heard of was, perhaps, more strange 
 and romantic than that undertaken by Aaron Burr, for the 
 conquest of Mexico. Aaron Burr was quite an unusual 
 type of adventurer, having been Vice-President of the 
 United States, used to the forms of government, and distin- 
 guished by remarkable talents, but he was possessed of a 
 restless nature and daring ambition. With a mind tor- 
 tured by remorse for his unfortunate duel with Hamilton, 
 sickened by discontentment in political preferment, and 
 disgusted with the pacific measures of Jefferson, he seems 
 \l to have determined to direct his thoughts into scenes of 
 outward conflict, and to bury the disquietudes which were 
 rending his soul by plunging into deeds of romantic 1 and 
 wondrous magnitude. A thousand miles beyond the Mis- 
 sissippi lay a vast and wealthy province of Spain, governed 
 by tyrants whom the people hated, and the riches of that 
 province had long been the theme of travelers. The 
 mines were inexhaustible, -and had flooded Europe with 
 
 Q gold. The capitol was said to be blazoned with jewels, 
 and men dreamed of that magnificent city as Aladdin 
 
 </x dreamed of his palaces or Columbus of Carthay. A bold 
 adventurer could possess himself of the empire, and the 
 time was most favorable for the enterprise. The priest- 
 hood was disaffected, and exercising then, as now, a para- 
 V mount influence over weak and superstitious Mexicans, 
 would gladly lend its aid to a conqueror. More than that, 
 the United States were supposed to be on the eve of a
 
 iv PREFACE. 
 
 Spanish war, and any one who could seize on the glitter- 
 ing prize might realize in this new world a dream as great 
 as that of Napoleon in the old. It was with such feelings 
 that ex-Vice-President Aaron Burr, in the spring of 1805, 
 after the closing of the session of Congress, set out on a 
 journey through the Western States, having in his mind a 
 threefold object. He wanted, first, to ascertain the senti- 
 ment of the people of the West upon the subject of a 
 separation from the Atlantic states; secondly, to enlist re- 
 cruits, and make arrangements for a private expedition 
 against Mexico and the Spanish provinces ; and thirdly, in 
 the event of failure in their measures, to purchase a tract 
 of land on the Washita river, in the territory of Louisiana, 
 where he contemplated the establishment of a colony of 
 intelligent and wealthy individuals, where he might rear 
 around, him a society remarkable for its refinement in civil 
 and social life. Knowing the advantages of wealth and 
 influence in such an undertaking, Burr endeavored to pro- 
 cure the co-operation of the most conspicuous characters in 
 the country. Some previous correspondence had taken 
 place between him and General Wilkinson, who commanded 
 the Western forces at that time, temporarily, at Fort Massac, 
 at the mouth of the Ohio. Burr wished to ascertain with 
 what confidence he could rely on the aid of that officer and 
 his men, in the event of an expedition to Mexico. The 
 result of that interview has never been definitely known, 
 but it is strongly suspected that Wilkinson assured him of 
 his support. What casts a remarkable air of mystery over 
 the whole affair, is that for the purpose of correspondence 
 they adopted three different ciphers, and it is still more 
 strange as almost foreshadowing Burr's daring design long 
 before, that this correspondence commenced about the year 
 1800 or 1801, near the period when Burr ascended the chair 
 of the Vice-Presidency. It is also a significent fact that 
 when the ex-Vice-President arrived in the West, the Gen- 
 eral furnished him with an elegant barge, sails, colors, and 
 ten oars, with a sergeant and ten able hands, to prosecute
 
 PREFACE. v 
 
 his journey. It was now that Burr became acquainted with 
 a gentleman whom he contrived to inveigle into this scheme 
 by glowing descriptions of the prize, and false assurances 
 that he knew the views^of the administration, and that the 
 expulsion of the Spaniards from the American territory 
 then violated by them, or even an invasion of Mexico, would 
 be pleasing to Mr. Jefferson, if either could be effected 
 without a war against Spain, which was now prevented by 
 parsimony, on the one hand, and dread of France on the 
 other. This remarkable future colleague, Mr. Herman 
 Blannerhassett, was an Irish gentleman of high connec- 
 tion, and a member of the Irish Bar. In company with 
 one of his companions he had taken a tour on the conti- 
 nent, and had visited France when she was rocked by the 
 whirlwind of revolution, and the established despotism of 
 her military monarchs had been crumbled to atoms. There 
 were at this time a large number of young Irishmen in 
 France, many of whom entered into the spirit of the revo- 
 lution with great zest, and endeavored to enlist the sympa- 
 thies of their fellow-countrymen against the oppression of 
 England. Two well-educated lawyers, John and Henry 
 Sheares, were executed for treason on their return from the 
 taking of the Bastile, and Blannerhassett, seeing the danger 
 and inconvenience of his situation, and having lately mar- 
 ried a young, intelligent, and beautiful woman, disposed of 
 his lands to a relative, and set sail to this country. In the 
 year 1798 he eventually purchased an island named Backus 
 Island, on the Ohio river, in Western Virginia, and here 
 surrounded himself with so much elegance and refinement 
 as to cause this island home to be known by the title of^ 
 the American Alhambra. It was here that Burr, with elo- 
 quence of expression and power of imagination, infused 
 into him a desire to join his daring expedition; and imme- 
 diately afterwards Burr commenced active preparations. 
 At length President Jefferson issued a proclamation warn- 
 ing and enjoining all engaged in the enterprise to with- 
 draw.
 
 vi PREFACE. 
 
 The proofs of General Wilkinson's complicity with Burr 
 are very numerous. He writes to General Adair: "Burr 
 understood your merits and reckons on you. Prepare to 
 visit me, and I will tell you all. W"e must have a peep into 
 the unknown world beyond me." Burr's design compre- 
 hended the dismemberment of the Western country, and 
 the seizure of New Orleans, in the bank of which were 
 several millions of dollars he intended to appropriate; 
 and he writes to Wilkinson that he will meet him at 
 Natchez, "there to determine whether it will be expedient 
 to seize or pass by Baton Rouge." Being a chief accom- 
 plice, Wilkinson now made Burr his victim, communicated 
 the whole plot to President Jefferson, and succeeded in 
 .fastening upon Burr the entire treason. The President ac- 
 cordingly issued his proclamation, requiring all who had 
 been led into the unlawful enterprise to withdraw without 
 delay, and calling upon the vigilance of all military and 
 civil officers. By virtue of this proclamation the Virginia 
 militia of Wood county was called out, and as they were 
 about to invade Blannerhassett's island home, he and his 
 wife fled. Burr also left the Cumberland, where boats were 
 being constructed for the expedition, and, supplying him- 
 self with lead, tomahawks, &c., proceeded to Palmyra, and 
 thence to Bayou Pierre. Arrived at the Western margin of 
 the Mississippi river, he found that a proclamation had been 
 issued by Cowles Mead, acting governor, to " the Burr con- 
 spirators," from whom he also received a courteous letter. 
 To the charge of designs inimical to the government, Burr 
 replied with a sneer, that any projects or plans he might 
 have formed were now completely frustrated by the con- 
 duct of Wilkinson, and the world must pronounce him a 
 perfidious villain. He was arrested and then escaped, and 
 disguising himself in a boatman's coat proceeded on his 
 tour. 
 
 Late at night,* about the last of February, Burr, with a 
 
 * For this interesting description of the arrest of Aaron Burr, we are in- 
 debted to Pjckett's History of Alabama.
 
 companion, arrived at a small log cabin, in what is now the 
 village of Wakefield, in Washington county, Alabama. 
 
 Without alighting, he called at the door, and inquired oi 
 the inmates if Colonel Hinson resided in the neighborhood? 
 Receiving for answer that he did, they further informed 
 him the house was seven miles distant. 
 
 Near midnight, the glimmering of a light, through the 
 distant trees, directed the travelers to the rude but comfort- 
 able quarters of Colonel Hinson. Having hailed and 
 received no answer, they dismounted and entered the 
 kitchen, where the remaining embers in the fire-place were 
 soon kindled into a comfortable blaze. Seating himself 
 before it, Burr left his companion to take charge of the 
 horses, and had just begun to feel comfortable, when he 
 was interrupted by a stranger, who, he concluded, had rid- 
 den till late to reach desirable lodgings. But in this he 
 was mistaken. The real cause of his appearance at this 
 unseasonable hour originated in Burr's mysterious depart- 
 ure from the inn. As it afterward appeared, Colonel Nicholas 
 Perkins observed, by the light of the fire, as Burr sat upon 
 his horse, that although he was coarsely dressed, yet he 
 possessed a countenance of unusual intelligence ; an eye 
 of sparkling brilliancy, and a demeanor wholly unsuited 
 to the garb he wore. The tidy boot, in particular, which 
 his vanity could not surrender, with his other articles ot 
 finer clothing, attracted Perkins's attention, and led him 10 
 conclude that the gentleman before him was none other 
 than the famous Colonel Burr, described in the proclama- 
 tion of the governor. Perkins immediately started after 
 Theodore Brightwell, the sheriff, who occupied an adja- 
 cent cabin, and awakening him from his slumbers, hurriedly 
 communicated the circumstances of the travelers, appear- 
 ance, conversation, and departure, and requested him to 
 join in pursuit of the parties. Brightwell consented, and 
 the two mounting their horses, took the road to Hinson's. 
 The night was cold and windy, and the moaning of the 
 *ofty pines, along the solitary road, rendered their journey
 
 viii PREFACE. 
 
 gloomy and inauspicious. Still they pressed on, for the 
 object of their pursuit was of no small importance at that 
 particular time to the minions of the government. As 
 they arrived in sight of the illuminated dwelling, Perkins 
 recollecting that the travelers had seen him at the tavern, 
 declined entering, but sent Brightwell, whom he requested 
 to return to him at a certain place in the woods after he 
 had ascertained whether or not the suspicious individual 
 was Aaron Burr. 
 
 As Brightwell called at the door his voice was recog- 
 nized by Mrs. Hinson, who was his relative, and who until 
 now had remained silent in another room, through fear of 
 the strangers, in the absence of her husband. 
 
 She soon prepared something to eat for her unknown 
 guests. As Burr seated himself at the table, he thanked her 
 in the most courteous terms for her kindness, and apolo- 
 gized for the trouble he had imposed upon her. His con- 
 versation was sprightly and agreeable, so much so, indeed, 
 that Mrs. Hinson soon discovered that the gentleman and 
 his attire did not correspond. 
 
 His attention was often directed to Brightwell, who stood 
 before the fire, and at whom he cast the keenest glances, 
 evidently endeavoring to read his thoughts. A momentary 
 separation having taken place during the night between 
 Burr and his companion, at the suggestion of Brightwell, 
 the latter was asked by Mrs. Hinson if she had the honor 
 of entertaining as her guest the celebrated Colonel Burr. 
 Fearing to make the disclosure, the man remained silent, 
 and shortly after left the room. 
 
 Early in the morning, Burr privately communicated to 
 Mrs. Hinson his real name, and regretted the absence of 
 her husband. 
 
 For some unaccountable reason, which has never yet 
 been explained, Brightwell neglected to return to Perkins, 
 whom he left highly excited and shivering in the cold. 
 Having remained at his post until his patience was 
 exhausted, and supposing that Brightwell, probably on
 
 PREFACE. ix 
 
 account of the fascinations of Burr, or the pity which had 
 seized him, in his behalf, had betrayed their plans, Per- 
 kins mounted his horse and rode rapidly to the house ot 
 Joseph Bates, at Nannanhubby Bluff, to avoid the creek 
 which intervened on the main route to Fort Stoddart. 
 
 Here he was furnished with a canoe and a negro to nav- 
 igate it, and descending the Tombigbee, arrived at the mil- 
 itary station early in the morning. The late General 
 Edmund P. Gaines was then lieutenant in command. Per- 
 kins briefly acquainted him with the particulars of the pre- 
 ceding night's adventure, and of his suspicions, which 
 although of slight foundation, had nevertheless impressed 
 him with the solid convictions of truth. 
 
 Placing himself at the head of a file of mounted soldiers, 
 the lieutenant started in pursuit, accompanied by Perkins. 
 They shortly encountered the object of their search, with 
 his traveling companion and the sheriff, Brightwell. The 
 parties having met, Lieutenant Gaines accosted one of the 
 strangers, remarking that he presumed he had the honor of 
 addressing Colonel Burr. 
 
 " I am a traveler," answered Burr, " and in a strange land, 
 and do not recognize your right to ask such a question." 
 
 " 1 arrest you, at the instance of the United States," re- 
 plied Gaines. 
 
 " By what authority do you arrest me, a stranger on the 
 highway, on my own private business ?" 
 
 The lieutenant then informed Burr that he was an officer 
 of the United States army, and held in his hand the procla- 
 mation of the President, as well as that of the Governor 
 of the Mississippi Territory, directing his arrest. 
 
 Burr's manner was firm, his air majestic, and his lan- 
 guage impressive ; but the resolute young officer told him 
 his mind was made up; the prisoner must accompany him 
 to his quarters, where he would be treated with all the re- 
 spect due the ex-Vice-President of the United States, so 
 long as he made no attempt to escape. He was then con- 
 ducted toward Fort Stoddart.
 
 x PREFACE. 
 
 Three weeks had passed away since the arrest of the dis- 
 tinguished prisoner, and still the lieutenant had been unable 
 to convey him to the seat of the general government for 
 trial. The difficulties were great, and, for a time, the tin- 
 taking appeared impracticable. At last Burr left the 
 fort, under guard, and proceeded in a government boat up 
 the Alabama river, into the Fensaw lake, accompanied by 
 Lieutenant Gates, and stopped at the house of John Mills. 
 
 When Burr fled from the authorities in the Mississippi 
 Territory, he had disguised himself in a boatman's dress. 
 His pantaloons were of coarse, copperas-dyed cloth, with 
 a roundabout of inferior drab. His hat, a flapping, widfc- 
 brim beaver, had, in times long past, been white, but now 
 gave evidence of .having encountered much rough weather. 
 Placed upon his fine horse, he bestrode him most elegantly, 
 and flashed his large, dark eyes, as though he were at the 
 head of his New York regiment. On the last of February 
 they set out upon their long and perilous journey. Within 
 a quarter of a mile from the point of departure, the dread- 
 ful massacre at Fort Mimms occurred six years after. 
 
 Pursuing the Indian path, which led from the " Bigby 
 Settlement" to Fort Wilkinson, on the Oconee, they 
 reached a point thirty miles distant the first day. At night 
 the only tent in the company was pitched for the prisoner, 
 who reposed himself upon his blankets. The country 
 abounded in immense pine forests. Here the ex- Vice- 
 President lay the first night, before the blazing fire, which 
 threw a glare over the dismal woods. 
 
 To what an extremity had he now been reduced ! In the 
 boundless wilds of Alabama, under a small and comfortless 
 tent, amid the perils of Indian barbarities, with the cry of 
 the panther, answered by the howl of the hungry wolf, 
 ringing in his ears ; while the moaning of the winds 
 through the tops of the lofty trees added dreariness to the 
 solitude of the night ; with none with whom to hold con- 
 verse ; surrounded by a guard to whom he dared not 
 speak ; a prisoner of the United States, for whose liberties
 
 PREFACE. xi 
 
 he had fought, and whose government he had helped to 
 form ; exiled from the state of his adoption, whose statutes 
 and institutions bore the impress of his mind ; deprive.! by 
 death of his devoted wife ; his only child then on the distant 
 coast of Carolina ; his professional pursuits abandoned and 
 his fortune swept away ; the magnificent scheme of the con- 
 quest of Mexico uprooted and the fragments dispersed ; slan- 
 dered and hunted down, from one end of the Union to the 
 other ; these were considerations sufficient to weigh down an 
 ordinary individual and sink him into an untimely grave. 
 
 But his was no common mind, and the characteristic for- 
 titude and determination which had ever marked his course, 
 still sustained him in the darkest hour. In the morning 
 he arose cheerfully and pursued his journey. Although 
 guarded with vigilance, his few wants were gratified, as far 
 as they could be, and he was treated with respect and kind- 
 ness. The trail being narrow and obscure, Burr rode in 
 the middle, having a part of the guard in fiont, while the 
 rest followed behind in single file. The route lay about 
 eight miles south of the present city of Montgomery, then 
 an Indian town, called Eacoucharte meaning Red Ground. 
 
 When Perkins reached the confines of South Carolina, 
 he watched Burr more closely than ever ; for in this state 
 lived the son-in-law of Burr, Col. Alston, a gentleman of 
 talents, wealth, and influence, and afterward governor of 
 the state. Upon reaching the frontiers of Georgia, he 
 endeavored to convey the prisoner in by-roads, to avoid the 
 towns, lest he should be rescued. The plan was attended 
 with difficulty ; they were often lost, the march impeded, 
 and the highway again resumed. Before entering the town 
 of Chester, in South Carolina, the party halted. Two men 
 were placed before Burr, two on either side, and two 
 behind, and in this manner they passed near a tavern on 
 the street, where many persons were standing ; while music 
 and dancing were heard in the house. Burr conceived it a 
 favorable opportunity to escape, and suddenly dismounting, 
 exclaimed:
 
 xii PREFACE. 
 
 "I am Aaron Burr, under military arrest, and claim the 
 protection of the civil authorities !" 
 
 Perkins leaped from his horse, with several of his men, 
 and ordered him to remount. 
 
 " I will not !" replied Burr. 
 
 Not wishing to shoot him, Perkins threw down his pis- 
 tol, and being a man of prodigious strength, and the pris- 
 oner a small man, seized him around the waist and placed 
 him in his saddle, as though he were a child. Thomas 
 Malone caught the reins of the bridle, slipped them over 
 the horse's head, and led him rapidly on. 
 
 The astonished citizens had seen a party enter their vil- 
 lage with a prisoner ; had heard him appeal to them for pro- 
 tection ; had witnessed the feat of Perkins, and the party had 
 vanished before they had time to recover from their confu- 
 sion ; for when Burr dismounted the guards cocked their 
 pistols, and the people ran within the piazza to escape from 
 danger. 
 
 Burr was still to some extent popular in South Carolina, 
 and any wavering or timidity on the part of Perkins would 
 have lost him his prisoner ; but the celerity of his move- 
 ments gave no time for the people to reflect before he was 
 far in the outskirts of the village. Here the guard halted. 
 Burr was highly excited ; he was in tears ! The kind- 
 hearted Malone also wept at seeing the uncontrollable 
 despondency of him who hitherto had proven almost iron- 
 hearted. It was the first time that any one had ever seen 
 Aaron Burr unmaned. 
 
 The guard being very much alarmed on the subject ol 
 Burr's rescue, Malone and Henry advised the purchase ot 
 a carriage. The former took charge of the guard, while 
 Perkins returned and purchased a gig. The next day Burr 
 was placed in a vehicle, and driven without further inci- 
 dent to Frederick sburg, Virginia. Here Perkins received 
 dispatches from the President, requiring him to convey 
 the prisoner to Richmond. The guard took the stage and 
 soon reached that place. The ladies of the city vied with
 
 PREFACE. xiii 
 
 each other in contributing to the comfort of Burr. Some 
 sent him fruit, some clothes, some wine, some one thing, 
 some another. Perkins and his men went to Washington, 
 were paid for their services, and returned to Alabama by 
 way of Tennessee. 
 
 After Colonel Burr's conveyance to Richmond, Blan- 
 nerhasset, wishing to revisit his island home, started from 
 Natchez in June, 1807, with the intention of doing so. On 
 his arrival, however, at Lexington, he was taken into cus- 
 tody for his endorsement of several of Burr's bills on a 
 civil process; and then learnt for the first time that bills of 
 indictment had been found against Colonel Burr and him- 
 self for high treason and a misdemeanor, and that Burr was 
 in custody. He writes to his wife that Burr's situation 
 might be perilous as well as his own; but that he had no 
 idea of attempting an escape, and adds : " Wilkinson will 
 fall and be disgraced, whatever fate may attend Burr and 
 myself." Before his discharge from the civil process, he 
 was again arrested by the Marshal of the Kentucky Dis- 
 trict, on an affidavit made by Mr. David Meade that he 
 had been indicted for treason, and a true bill found against 
 him at Richmond. He was brought before Judge Todd, 
 and as he wished to be heard by counsel was committed to 
 jail, and ordered to appear next morning, when he read to 
 the court an affidavit which he had drawn up. An immense 
 crowd assembled, and Blannerhasset went into a history ot 
 his arrests and discharges in the Mississippi Territory, and 
 asserted that, being on his journey home, he had hastened 
 to surrender himself to Mr. Bibb, attorney for the United 
 States ; that when he arrived, he had been arrested upon 
 civil process ; that he had met Mr. Clay, to whom he had 
 communicated his wishes, and who had promised to see 
 him upon the subject next morning. Mr. Clay, as counsel, 
 assured the court that his client only wished to be sent on 
 to Richmond for trial, but that he desired that no unneces- 
 sary rigor should be observed, and that he might be for- 
 warded in as delicate a manner as possible. As a citizen,
 
 xiv PREFACE. 
 
 Mr. Clay protested against the mode which had been pur- 
 sued by the Court, and said that he regarded the whole 
 proceedings as unprecedented and illegal. Blannerhasset, 
 made an appeal to the citizens of Lexington, which would 
 have been well received but for the high crimes with which 
 he was charged ; and the judge issued a warrant for his 
 commitment until the district judge could be applied to, 
 who ordered his delivery to the court at Richmond, whither 
 he was conveyed by Deputy Marshal Meade and a guard of 
 five men. 
 
 Some months previously, Colonel Alston, the son-in- 
 law of Burr, finding himself deeply implicated by the pro- 
 clamation of the President, to release himself from suspi- 
 cion had addressed a letter to Governor Pinckney of South 
 Carolina, in which he said that he had never heard, directly 
 or indirectly, of any meditated attack on New Orleans ; that 
 he knew well enough that there were men base enough to 
 connect him with Colonel Burr on mere suspicion, on the 
 ground'of their marriage relation, and concluding with the 
 words : " My residence is well known, and I shall never 
 shrink from investigation. Nay, more, presumption, where 
 I can not repel it by positive prooj ", shall be recorded as good 
 evidence, and the slightest suspicion which I can not satisfac- 
 torily explain shall be admitted as guilt." 
 
 Between Mrs. Blannerhasset and Mrs. Alston, the 
 greatest feminine regard had existed ; but a considerable 
 misunderstanding had prevailed in these troubled times 
 between their husbands, while Mrs. Blannerhasset, in a 
 letter to her husband expressed, her opinion that Colonel 
 Alston was altogether unworthy of such a wife. If Burr, 
 who was accused of being without heart, although pos- 
 sessed of immense intellectual powers, had one redeeming 
 feature in his character, it was in his love for his only 
 daughter. Beautiful and accomplished beyond her sex, 
 she grew up no ordinary woman, and her love for her 
 father partook of the purity of another world, being holy, 
 deep, and unchanging. No sooner did she hear of his
 
 PREFACE. xv 
 
 arrest, than she fled to his side, and even the character of 
 Burr borrows a momentary halo from her. Once, and once 
 only, does he melt when he tells her that he will die worthy 
 of himself. Although Colonel Burr had been arrested in 
 February, and Blannerhasset in July, the trials of these 
 two with their companions, John Smith of Ohio, Comfort 
 Tyler, Israel Smith of New York, and Davis Floyd, were 
 oft postponed. For twelve days the court was engaged in 
 obtaining a jury, and in discussing points of law. Never 
 before in the history of the country was there so grand a 
 display of legal acumen and forensic talent. Upon the 
 bench sat the venerated Marshall, whom it was rumored 
 might shrink from his duty, as in his private character he 
 had ordered or permitted something to be inserted in the 
 " Argus," exculpatory of Colonel Wilkinson. On that 
 point Blannerhasset says in his diary, " I am certain, what- 
 ever dust or insects may have sought the judge's robes 
 while off his back, none will venture to appear upon the 
 ermine that bedecks his person." Calm, dignified, and 
 attentive, the chief justice analyzed the arguments of coun- 
 sel, and noted their relevancy with the nicety of a critic, jus- 
 tifying the reputation which he always had of spotless 
 purity and soundness of judgment without an equal. At 
 the bar was Wirt, whose fervid and soul-thrilling elo- 
 quence, even in this very trial, placed him at once amongst 
 the foremost of American orators. With a brilliancy of 
 imagination which startled his auditors he swayed the minds 
 of the jury with wonderful effect. Then there was Luther 
 Martin, whom Blannerhasset calls, " the rear guard of 
 Burr's forensic army," who had previously distinguished 
 himself in the trial of Judge Chase before the United States 
 Senate, and who on this occasion made a speech of four- 
 teen hours' duration. Every word that he uttered like a 
 two-edged sword pierced the arguments of his opponents at 
 every point. There was the Attorney-General, George Hay, 
 whose insolence to Mr. Pritchard some time before had oc- 
 casioned the latter to throw a plate at his head, which ter-
 
 xvi PREFACE. 
 
 minated the affair, and kept Mr. Attorney forever after 
 within the bounds of civility. Hay was always ready to 
 take advantage of suspicious circumstances, and wield them 
 with tenfold force against the prisoner. There was Ran- 
 dolph, slow, calculating, and careful, building up the vul- 
 nerable points of his case against the attacks of his adversa- 
 ries. There was Botts facetious, and playful ; sometimes 
 descending to the ludicrous, but often rising with convinc- 
 ing argument to the grand. There was Wickham, dignified 
 and commanding, taking up the subject with a master- 
 hand, and holding it to view in every conceivable light. 
 And there was Burr, proudly pre-eminent in point of in- 
 telligence to his brethren 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 in- 
 volved, the former high standing and extraordinary for- 
 tunes of the accused, had excited an interest in the commu- 
 nity such as never before had been known. The witnesses 
 against him were mostly Government officers, with whom, 
 at one time or another, he had been in some way con- 
 nected. On the charge of treason the Court took twenty- 
 six days to complete its inquiry, and the evidence of sixty 
 witnesses had to be taken. There being no suitable quarters 
 in the city, Burr was confined in the Penitentiary, in the 
 suburbs of Richmond, from whence he was marched every 
 day into Court escorted by a body guard of two hundred 
 men, which would have done honor to an Eastern prince. 
 In addition to the charge of treason, there was one of mis- 
 demeanor. The question before the Chief Justice was 
 whether a man once put in jeopardy of life in one district, 
 for treason charged to have been therein committed, and
 
 PREFACE. xvii 
 
 acquitted thereof, may afterwards be put to answer charges 
 of other overt acts of the same treason in another district. 
 On the ist of September the jury returned a verdict-r-that 
 Aaron Burr is not proved to be guilty under the indictment 
 by any evidence submitted to us; we, therefore, find him 
 not guilty. Burr objected to the verdict as being incorrect 
 in point of form, and asked that it might be given in the 
 usual way simply "not guilty." Mr. Hay answered 
 that in fact it was a verdict of acquittal, and that it should 
 be entered in the jury's own words. He said, " There are 
 no precise words by which the jury should be governed." 
 Burr replied, " They have no right to return a written verdict 
 at all ; they have no right to depart from the usual form." 
 He then called for the recital of the common directions 
 given the jury by the clerk. They were read and end as fol- 
 lows : " If you find him guilty, you are to say so : if not 
 guilty, you are to say so, and no more." "The jury can not 
 be indulged," said Burr ; " they have defaced a paper be- 
 longing to the Court, by writing upon it words which they 
 had no right to write. They ought to be sent back." 
 After a short consultation it was agreed that the simple 
 verdict of " not guilty " might be entered on the records of 
 the Court. The question was now about the second in- 
 dictment, and Col. Burr said he was ready to enter an ap- 
 pearance for the misdemeanor, insisting, till he did so, he 
 was not legally in Court on that charge. Wickham and 
 Botts supported their argument with not only English and 
 Federal authorities, but with the doctrines of Attorney- 
 General Hay himself, delivered by him on Chase's trial, 
 which they dressed up in such comments and strictures as 
 exhibited Hay the most bewildered spectacle of confusion 
 and mortiacation. The Chief Justice deferred his opinion 
 to the following day, and on the ninth of September Burr 
 was again arraigned upon an indictment for a misdemeanor 
 which consisted of seven counts, the substance of which was 
 that Aaron Burr did set on foot a military enterprise to 
 be carried on against the territory of a foreign prince, viz.,
 
 xviii PREFACE. 
 
 the province of Mexico, which was within the territory of 
 the King of Spain, with whom the United States were at 
 peace. After the prosecution had examined some of the 
 witnesses, and the Court had decided that the testimony of 
 the others was not relevant, the District Attorney made a 
 motion to discharge the jury. To this motion Burr ob- 
 jected, insisting upon a verdict. This was on the fif- 
 teenth of the month. The court being of opinion that 
 the jury could not at this stage of the case be discharged, 
 a verdict of acquittal was given. 
 
 After his trial at Richmond, Colonel Burr sailed for 
 England, where he made unsuccessful attempts with the 
 government. He was ordered to leave London by Lord 
 Liverpool, and proceeded to Sweden ; after which he 
 travelled through Germany to Paris, where he was refused 
 a passport by the American Minister. Finally, four years 
 after, he returned to New York, and died without any 
 further encouragement being extended from any quarter to 
 his daring project,
 
 THE 
 
 TRIAL OF AARON BURR 
 
 CITY OF RICHMOND, FRIDAY, May 22, 1807. 
 
 Court of the United States for the fifth circuit and 
 district of Virginia. 
 
 PRESENT JOHN MARSHALL, chief justice of the 
 United States ; and CYRUS GRIFFIN, judge of the dis- 
 trict of Virginia. 
 
 Counsel for Aaron Burr : Edmund Randolph, John 
 Wick ham, Benjamin Botts, and John Baker. 
 
 Counsel for the prosecution : George Hay, district- 
 attorney, William Wirt, and Alexander Mac Rae. 
 
 The clerk having called the names of the gentlemen 
 who had been summoned on the grand jury, Mr. Burr's 
 counsel demanded a sight of the panel; which was 
 shown to them ; when Mr. Burr addressed the court to 
 the following effect : 
 
 " May it please the court, 
 
 " Before any further proceeding with regard to swear- 
 ing the jury, I beg leave to remark some irregularity 
 that has taken place in summoning part of the panel. 
 This is the proper time to make the exception. I un- 
 derstand that the marshal acts not under an act of con- 
 gress, but a law of the state of Virginia, by which he 
 is required to summon twenty-four freeholders of the 
 state to compose the grand jury. When he has sum- 
 moned that number, his function is completed. He can- 
 not on any account summon a twenty-fifth. If, there- 
 i. i
 
 2 TRIAL OF AARON BURR. 
 
 fore, it can be made to appear, that the marshal has 
 struck off any part of the original panel, and substituted 
 other persons in their stead, the summons is illegal. 
 Such is the law and the dictate of true policy ; for in im- 
 portant cases, like the present, a different course would 
 produce the most injurious consequences. I consider it 
 proper to ask the marshal and his deputies, what persons 
 they have summoned, and at what periods; whence ,it 
 may be known, whether some have not been substituted 
 in place of others struck off the panel. When we have 
 settled this objection, I shall proceed to exceptions of a 
 different nature." 
 
 Mr. Botts observed, that it was the 2Qth section of the 
 judicial act, which refers to the state law, besides a dis- 
 tinct act, which enumerates other duties; that neither of 
 these laws specified any particular mode by which mar- 
 shals were to summon juries in different districts. By 
 the first section of the Virginia act, the sheriff is to sum- 
 mon twenty-four freeholders, any sixteen of whom ap- 
 pearing are to constitute a grand jury. The first section 
 does not state that he is to make a return, but a distinct 
 section inflicts a penalty, if he violate the duties pre- 
 scribed by the first section; that is, if he fail "to sum- 
 mon a grand jury, and return a panel of their names." 
 Colonel Burr is anxious to have nothing more than a fair 
 trial. The reports circulated, and prejudices excited 
 against him, justify a strict attention to his rights. He 
 therefore asks the strictest scrutiny into past and subse- 
 quent measures. An important interest is involved in 
 the authority of the grand jury. And if there be any 
 irregularity in the marshal's summons, it ought now to 
 be rectified. By the act of Virginia, a sheriff, and by 
 the act of congress a marshal, are mere ministerial officers 
 bound to discharge certain duties. He is to summon 
 twenty-four jurors. When that act is done, it is irrevo- 
 cable, and his duty at an end. This court only possesses 
 the authority to excuse any of those who have been sum- 
 moned, and direct the marshal to substitute others, till 
 the necessary quorum be completed. 
 
 Mr. Botts further observed, that he had no intention 
 of casting the slightest imputation on the marshal for his 
 conduct in this transaction ; that his honorable character
 
 ARGUMENT. 3 
 
 placed him above suspicion, and the fault, if any, must have 
 arisen from official misconceptions; that he did not pro- 
 pose to interrogate Major Scott in any manner that might 
 possibly criminate him ; but that the court had a right 
 to inquire, and if any error was committed, to correct it. 
 That if he was overruled in this motion, he would then 
 crave leave of the court to produce testimony as to the 
 facts ; that he took it for granted, that if a single mo- 
 ment intervened between the summoning of a juror and 
 the meeting of a court, the court alone had the power to 
 discharge him; that with regard to the present panel it 
 would appear, that the marshal after summoning one in- 
 dividual, had notified another to attend ; in other words, 
 he had summoned him according to the legal definition 
 of the term " summons." That this was not the duty of 
 the marshal ; that when the original panel was complete, 
 his duty was at an end, and he must return that very 
 panel precisely, without any addition. What mischiefs 
 might not result from a different practice, particularly in 
 cases of extreme importance, where the government was 
 concerned, since the marshal himself depended on the 
 government for the duration of his commission ? 
 
 Mr. Botts therefore contended, that the ministerial' 
 duties of a marshal ceased with the summons which he 
 gave ; and that, if the jurors did not appear, it was the 
 privilege of the court to supply any deficiency. He 
 cited the decision of the supreme court of the United 
 States in the case of Marbury v. Madison, to show, that 
 when the ministerial duties of an officer were discharged, 
 his power necessarily ceased, and his act was irrevocable. 
 This doctrine was of universal application in law, both in 
 America and England. It was applicable to a sheriff, 
 after he had served a common writ of fieri facias. If 
 he summon a petit juryman, who fails to appear before 
 the court, it is the right of the court alone to fine or to 
 excuse him. Mr. Botts then concluded, that he would 
 ask the marshal who were the twenty-four whom he had 
 first summoned ; for that may constitute the grand jury. 
 Every one beyond that number was illegally summoned. 
 It was the right of Colonel Burr to demand such a pur- 
 gation of the panel. 
 
 Mr. Hay, the district-attorney, observed, that he was
 
 4 TRIAL OF AARON BURR. 
 
 not prepared to make any observations upon this ques- 
 tion, as it was a point which they had never before had 
 any .occasion to consider; that the proposition was, how- 
 ever, of no great importance, since, if any of them were 
 set aside, there would still be a sufficient number to con- 
 stitute a grand jury; or the deficiency might be supplied 
 by a new summons among the bystanders. If there 
 were, in reality, any objection to the regularity of the 
 summons, he was willing to accommodate the opposite 
 counsel ; that he was not certain how far it was strictly 
 proper to interrogate, or examine into the time of slim- 
 moning the different members of the panel, as he had 
 not been very conversant with business of this kind. 
 He was, however, content that the court should decide ; 
 and if it should be their opinion that the marshal should 
 be interrogated, how many jurymen he had summoned, 
 and when he had discharged them, he should feel perfect- 
 ly satisfied. 
 
 Mr. Wickham. Before we go into this inquiry, we 
 declare, that we mean no personal imputation upon the 
 respectable gentleman who is the marshal. His intentions 
 were certainly pure. It is an error of judgment alone 
 to which we object. But in the present case, where 
 such important interests are at stake, and where such 
 unjustifiable means have been used to prejudice the pub- 
 lic mind against Colonel Burr, it is his right to take every 
 advantage which the law. gives him. We are prepared 
 to show, that when a person is bound in a recognizance, 
 he has a right, at this period of the business, to come 
 before the court with his exceptions to the grand jury; 
 and if in any other case, why not in one of such deep 
 importance as the present? In support of this position, 
 Mr. Wickham cited 2 Hawkins's Pleas of the Crown, 
 page 307, sect. 16, and 3 Bacon's Abridgment, page 725. 
 Whether we might afterwards file a plea in abatement 
 for the error committed, is not now to be discussed. It 
 is Colonel Burr's anxious desire, that this whole affair 
 should terminate here, and that this grand jury may 
 determine his case. 
 
 The chief justice called for the law of Virginia. 
 
 Mr. Hay read it Revised code, 100, 2. The con- 
 struction put upon this part of the law seems to me far
 
 ARGUMENT. 
 
 more rigid than sound sense warrants. By this law, the 
 marshal is empowered to select twenty-four freeholders, 
 legally qualified to serve* on the grand jury. The officer, 
 in many cases necessarily ignorant of the situation of an 
 individual, summons him to attend. The person in- 
 forms him, that, for some personal misfortune, some do- 
 mestic calamity, or some indispensable business, it is im- 
 possible for him to attend. We ask, whether the accu- 
 rate construction of this law forbids him to summon 
 another in his place ? Where is the legal authority to 
 prove, that when he has once summoned twenty-four 
 jurymen, his ministerial function is at an end ? The mo- 
 ment it appears in court, that the legal number of jurors 
 is not present, he is to fill up his panel from the bystand- 
 ers. We appeal to the candor of the opposite counsel, 
 to point out the real distinction between the two cases. 
 Why should the marshal have the right to fill up his 
 panel, when it is once ascertained before the court, that 
 some of the jurymen have not actually attended, and 
 yet deny him the right of substituting others in the 
 place of those he has summoned, but who, he is satisfied, 
 before the meeting of the court, can not attend ? In- 
 stead of a difference, the two cases are strikingly paral- 
 lel. What the fact was, Mr. Hay said he knew not, but 
 he believed that some of those who were said to be sub- 
 stituted had not been positively summoned by the mar- 
 shal, but had been merely applied to, to know whether 
 they could attend. 
 
 Mr. Wickham contended, that the counsel for the Uni- 
 ted States had not fairly met the question. There is a 
 doubt whether Colonel Burr has not a right to come for- 
 ward with his exceptions now to the grand jury. As the 
 authorities on this subject are short, he would take the 
 liberty of reading them to the court. (He read those 
 he before cited.) From these authorities it manifestly 
 appears, that a person bound in a recognizance, had a 
 right before the grand jury were sworn, to state his ex- 
 ceptions to the mode of impaneling them. It is for this 
 reason th.it Colonel Burr has, in this stage of the busi- 
 ness, come forward with his objections. Mr. Hay con- 
 tends, that, our construction of the law is more rigid than 
 f ound policy demands. But when the words of the la\tf
 
 6 TRIAL -OF AARON BURR. 
 
 are obvious, why should we resort to a dubious construc- 
 tion ? " Ita lex scripta est." But if we are to wander 
 into the wide field of policy, how completely would 
 it bear against the gentleman's cause ! God forbid, sir, 
 that I should utter the slightest imputation upon the 
 character and official conduct of Major Scott ; they soar 
 above suspicion. But if once the marshal, who holds 
 his commission at the will of the government, were per- 
 mitted to alter the panel as he pleased, the life of every 
 citizen in this state would be held at his pleasure. It is 
 therefore essentially important, that the ministerial of- 
 ficer should rigidly pursue the statute from which he de- 
 rives his authority. And what is his duty in the present 
 instance ? He is to summom twenty-four freeholders to 
 serve on the grand jury, any sixteen of whom may con- 
 stitute a quorum. Mr. Hay had declared, that this provi- 
 sion was mere matter of form ; for if there be not a suffi- 
 cient number present to constitute a quorum, the mar- 
 shal may make up to the full number twenty-four. 
 But this is not the fact. If sixteen jurymen attend, the 
 marshal can not add one more. Let us, then, apply a 
 suppositious case. The marshal, if notified that one of 
 the jury whom he has summoned can not attend, is au- 
 thorized, according to Mr. Hays doctrine, to summon a 
 substitute. It is no impediment to the exercise of this 
 authority, that there be the legal quorum of sixteen re- 
 maining upon the panel ; he may proceed to summon 
 substitutes till he completes the whole number twenty- 
 four. And yet, if the case were to happen in court, the 
 marshal would certainly have no authority to complete 
 the whole number. Why, then, suppose such a difference 
 of authority in and out of court ? Why not rather sup- 
 pose, that the marshal has no authority to do that out 
 of court, which he can not do before the court ? Let us 
 suppose another case. A grand juror has been sum- 
 moned for several weeks before the meeting of the court. 
 The bare authority of the marshal is sufficient, according 
 to this doctrine, to excuse him from serving, and to sub- 
 stitute another in his place, only one hour before the 
 meeting of the court. Mr. WickJtam declared he could 
 mention the case of a man who had been excused from 
 this very panel.
 
 ARGUMENT. 7 
 
 Mr. Scott (the marshal.) Name him, sir ; I demand his 
 name. 
 
 Mr. Wickham declared, that he meant no imputation 
 upon Mr. Scott, but he would not submit to such inter- 
 ruptions. If no sufficient excuse is given by the absent 
 juror, he is subject to a fine. Is it then contended, that 
 the marshal is to judge in the place of the court? not 
 only to relieve the person of the juror, but his property 
 also from the fine? The words of this law are too plain 
 to be mistaken. It admits of no latitude of construc- 
 tion. But if the marshal has really transcended his au- 
 thority, yet I do not hesitate to declare my opinion, that 
 he intended to discharge his duty with fidelity. It was 
 only an error in judgment, to which all men, however 
 well versed in the law, are liable. 
 
 Mr. Hay. Will the court indulge me with a single 
 additional remark ? I stated before, that when the mar- 
 shal found that one of the jury, whom he had before 
 summoned, could not attend, he was authorized to sum- 
 mon a substitute. Mr. Wickham, however, contends, 
 that the marshal can not summon others, after sixteen 
 have appeared. But for what reason ? Because there is, 
 in reality, no occasion for it. The object of the law is 
 already attained. The grand jury is complete, and it is 
 unnecessary to take up further time, when the grand 
 jury is legally full. But before the court convenes, how 
 is it possible for the marshal to know how many of those 
 summoned will attend ? According to the doctrine of 
 the opposite counsel, there maybe no grand jury. 
 
 The chief justice inquired, whether the question had 
 ever come before the state courts? 
 
 Mr. Randolph. Not, sir, to my knowledge. In nearly 
 thirty years' practice (and a considerable part of that 
 time I was attorney-general for the commonwealth) no 
 occasion has occurred for such an objection. I have 
 never seen a case where it was so absolutely necessary to 
 assert every privilege belonging to the accused, as in this. 
 But as to the right itself, abstractedly considered, I have 
 never hesitated a moment about its existence. It is 
 written in broad, intelligible characters. Sir, if we ever 
 submit to these relaxations of the rights of the accused, 
 a time may possibly come, when we may lament the
 
 8 TRIAL OF AARON BURR. 
 
 precedent we have established ; when men less virtuous 
 than the present respectable marshal, shall succeed to 
 his functions. But the question in the present case is, 
 not what has been the practice in the state courts, but 
 what is the right? If this right has never been before 
 asserted, it is because there never was an occasion which 
 so imperiously demanded it as the present ; because 
 there never was such a torrent of prejudice excited 
 against any man, before a court of justice, as against 
 Colonel Burr, and by means which we shall presently 
 unfold. 
 
 Chief Justice. As this question has never been de- 
 cided before the state courts, we must refer to the words 
 of the act of assembly. There can be no doubt that this 
 is the time when the accused has a right to take excep- 
 tions to the jury ; and the only doubt can be, is this a 
 proper exception ? The marshal is authorized by law to 
 summon twenty-four jurymen ; but he is not to summon 
 a twenty-fifth. Of course, the twenty-fifth is not legally 
 summoned, unless he has the power to discharge a person 
 already summoned. He has no such power, unless the 
 jury be composed of bystanders. The twenty-four first 
 summoned must compose the jury, sixteen of whom 
 constitute a quorum. It follows, therefore, that no one 
 can be on the grand jury, unless he be one of the twenty- 
 four first summoned, or one who has been selected from 
 the bystanders by the direction of the court. When the 
 panel has been once completed by the marshal, its 
 deficiencies can be supplied only from the bystanders. 
 
 The chief justice further observed, that he was not 
 well acquainted with the practice in the state courts ; 
 but he believed the practice of sheriffs to be, to excuse a 
 man summoned on the jury, if they are satisfied that his 
 excuse is reasonable. So it may have been with the 
 officer of this court, who acted, he had no doubt, with 
 the most scrupulous regard to what he believed to be 
 the law. That the court, however, thought the marshal 
 had no such dispensing p^ovver. One very obvious reason 
 against the marshal's possessing this power of substitu- 
 tion, is, that if a person summoned should come into 
 court, and prove that he had been actually summoned, 
 he certainly would be on the grand jury, if one of the
 
 ARGUMENT. 9 
 
 twenty-four first summoned. The general principle is, 
 that when a person is put in the panel he stands upon 
 it, and can not be displaced by the marshal. There is 
 an evident distinction between actually summoning a 
 grand juryman, and mere'ly talking to a person about 
 summoning htm. The court is, therefore, of opinion, that 
 a person substituted in the place of one actually sum- 
 moned, can not be considered as being on the panel. 
 
 Mr. Burr. The court having established the principle, 
 we must ask their aid to come at the facts. We wish to 
 know, when certain persons were summoned, when dis- 
 charged, and whether other persons were substituted in 
 their stead. 
 
 The marshal said, that he had not the least objection 
 to. state all the facts necessary to be known on this 
 occasion. A few days ago he had received a letter from 
 Colonel John Taylor, of Caroline, one of those whom he 
 had summoned on the jury, in which he states, that a 
 hurricane of wind had destroyed his carriage-house, and 
 with it his carriages, so that he could not use them ; and 
 that his indisposition prevented his riding to Richmond 
 on horseback. This letter he had laid before both their 
 honors, and the chief justice had deemed his excuse 
 reasonable. He had then summoned Mr. Barbour to 
 serve in Colonel Taylor's place. He had also received a 
 letter from Mr. John Macrae, informing that he was 
 going to leave the state for his health. He had in conse- 
 quence summoned Mr. Foushee in his place. The mar- 
 shal added, that he felt it to be his duty to bring twenty- 
 four jurymen into court, and acted upon this principle. 
 
 The court decided, that Mr. Barbour and Mr. Foushee, 
 the substituted persons, were not on the grand jury. 
 
 Mr. Burr. I understand that the panel is now 
 reduced to sixteen, and that this is the proper time to 
 make any other exceptions to the panel. It is with 
 regret, that I shall now proceed to exercise the privil- 
 ege of challenging for favor. In exercising this right, I 
 shall perhaps appeal to the authority of the court to try 
 these jurors. Lest it may be contested, it is better to 
 settle the principle first. 
 
 Mr. Hay, without directly contesting, called for the 
 law to justify the application.
 
 TO TRIAL OF AARON BURR. 
 
 Mr. Burr. Let it be distinctly understood, that I 
 claim the same right of challenging u for favor,"' the 
 grand jury, that I have of challenging the petit jury. I 
 admit, that it is not a peremptory challenge, but that I 
 must show good cause to support the challenge. It will 
 be of course necessary to appoint triers to decide, and 
 before whom the party and the witnesses to prove or 
 disprove the favor, must appear. 
 
 Mr. Botts. There can be no question, that a person 
 standing in the situation of Colonel Burr, may challenge 
 the jury for favor. In civil cases, any individual may 
 challenge a jury for favor or partiality to his antagonist ; 
 a fortiori, it must exist in criminal cases. Mr. Botts here 
 cited authority in support of his principle, and admitted, 
 that the cause of challenge must be proved by testimony ; 
 that it was necessary to prevent such impurity from creep- 
 ing into the commencement of his trial, as must contami- 
 nate all its subsequent stages; that no reflection against 
 the integrity of the present jurors was intended; but in 
 principles of plain common sense it was proper to remove 
 every cause that might defeat the purposes of justice. 
 
 Mr. Hay disavowed the intention of opposing substan- 
 tial exceptions, and admitted the law to be as stated by 
 the opposite counsel. 
 
 Mr. Burr. I shall, then, proceed to name the persons 
 and causes of challenge. The first I shall mention is 
 William B. Giles, against whom there are two causes of 
 challenge. The first is a matter of some notoriety, be- 
 cause dependent on certain documents or records; the 
 second is a matter of fact, which must be substantiated 
 by witnesses. As to the first, Mr. Giles, when in the 
 senate of the United States, had occasion to pronounce 
 his opinion on certain documents, by which I was con- 
 sidered to be particularly implicated. Upon those docu- 
 ments he advocated the propriety of suspending the writ 
 of habeas corpus. The constitution, however, forbids 
 such suspension, except in cases of invasion ^or insurrec- 
 tion, when the public safety requires it. It was, therefore, 
 to be inferred, that Mr. Giles did suppose that there was 
 a rebellion or insurrection, and a public danger of no 
 common kind. It is hardly necessary to observe, that 
 with this rebellion, and this supposed danger, I, myself,
 
 CHALLENGING THE JURY. n 
 
 had been supposed to be connected. Perhaps this may 
 be a sufficient reason to set aside Mr. Giles. But if not, 
 I shall endeavor to establish by evidence, that he has 
 confirmed these opinions by public declarations; that he 
 has declared that these documents, involving me, con- 
 tained guilt of the highest grade. 
 
 Mr. Botts. There is no necessity of adding any- 
 thing to the observations of Colonel Burr. If the right 
 of challenge exists, the right to try the challenge exists 
 also. But while I am up, I will declare that no reflection 
 is intended to be made on the character or conduct of 
 Mr. Giles. That gentleman will be candid enough to 
 admit, that there is not the least design to wound his 
 feelings. It is with the utmost reluctance that Colonel 
 Burr has prevailed upon himself to advance this excep- 
 tion. I have authorities, however, to prove that these 
 two causes are sufficient to disqualify Mr. Giles. The 
 first relates to his public, the second to his individual 
 conduct. 
 
 Mr. Hay. How many of the panel does the counsel 
 mean to object to ? 
 
 Mr. Botts. Only two. 
 
 Mr. Hay. I was about to make a proposition which 
 m-ight relieve us from all this useless embarrassment, and 
 which might gratify the views of the accused. If the 
 gentlemen who are challenged on the jury will consent to 
 withdraw themselves, I can have no objection. I am 
 content that every one who has made declarations ex- 
 pressive of decisive opinion, should be withdrawn' from 
 the jury. I am not disposed to spend time on such 
 points as these. 
 
 Mr. Burr. It will certainly save time, and I assent to 
 the proposition. 
 
 Mr. Giles consented to withdraw. 
 
 Chief Jiistice. The court thinks that if any gentleman 
 has made up and declared his mind, it would be best for 
 him to withdraw. 
 
 Mr. Burr. The other gentleman whom J shall chal- 
 lenge is Wilson Gary Nicholas. The objection is, that he 
 has entertained a bitter personal animosity against me; 
 and therefore I can not expect from him that pure im- 
 partiality of mind which is necessary to a correct decision.
 
 i2 TRIAL OF AARON BURR. 
 
 I feel the delicacy of my situation ; but if the gentleman 
 will consent to withdraw, I will waive any further inquiry. ' 
 
 Mr. Nicholas consented to withdraw. 
 
 The court established the following, as being the proper 
 questions to be put to the jurors: First. Have you 
 made up your mind on the case, or on the guilt or inno- 
 cence of Colonel Burr, from the statements you have 
 seen in the papers, or otherwise? and, finally, have you 
 formed and expressed (or delivered) an opinion on the 
 guilt or innocence of Colonel Burr (or the accused)? 
 
 The panel was here called over, and fourteen only ap- 
 peared, upon which the marshal requested the clerk to 
 add thereto the names of John Randolph and William 
 Foushee. The court then instructed the clerk to place 
 Mr. Randolph as foreman, who, being called on to take 
 the foreman's oath, addressed the court thus : 
 " May it please the court, 
 
 " I wish to be excused from serving. I will state the 
 reasons of that wish. I have formed an opinion, not on 
 the case now before the court, because I know not what 
 . the case is, but concerning the nature and tendency of 
 certain transactions imputed to the gentleman now before 
 you. I do trust, that without arrogating to myself any 
 thing more than becomes a man, I would divest myself 
 of this prepossession upon evid'ence. But I should be 
 wanting in candor to the court and the party accused, il 
 I did not say, that I had a strong prepossession. 
 
 Mr. Burr. Really, I am afraid that we shall not be 
 able to find any man without this prepossession. 
 
 Chief Justice. The rule is, that a man must not only 
 have formed but declared an opinion, in order to exclude 
 him from serving on the jury. 
 
 Mr. Randolph. I do not recollect to have declared 
 one. 
 
 Upon which Mr. Randolph was sworn as foreman, and 
 the rest of the panel called to the book, until it was Dr. 
 Foushee's turn. He stated to the court that he felt some 
 difficulty about the propriety of serving on the jury. 
 
 After some observations by Messrs. Wickham, Ran- 
 dolph and Hay, the chief justice observed that the 
 difference seemed to be, that Dr. Foushee had made up 
 an opinion both as to law and fact ; whereas other gen-
 
 MOTION TO INSTRUCT JURY. 13 
 
 tlemen had formed an opinion only as to certain facts. 
 Consequently Dr. Foushee was permitted to withdraw. 
 
 The grand- jury were then sworn, and were as follows : 
 
 John Randolph, junior, foreman. Joseph Eggleston, 
 Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, 
 James Pleasants, John Brockenbrough, William Daniel, 
 James M. Garnett, John Mercer, Edward Pegram, Mun- 
 ford Beverly, John Ambler, Thomas Harrison, Alexander 
 Shephard, and James Barbour. 
 
 The chief justice then delivered an appropriate charge 
 to the grand jury, in which he particularly dwelt upon 
 the definition and nature of treason, and the testimony 
 requisite to prove it. After which they retired. 
 
 Colonel Burr then addressed the court, and stated his 
 wish that the court should instruct the grand jury on 
 certain leading points, as to the admissibility of certain 
 evidence which he supposed would be laid before the 
 grand jury by the attorney for the United States. 
 
 Mr. Hay hoped that the court would proceed as they 
 had always done before, and that they would not grant 
 particular indulgences to Colonel Burr, who stood on the 
 same footing with every other man charged with a crime. 
 That they had already charged the jury on certain. mate- 
 rial principles, and he trusted that the court would not 
 depart from established rules, or adopt a new precedent, 
 to oblige the accused. 
 
 Mr. Burr. Would to God that I did stand on the 
 same ground with every other man. This is the first 
 time I have ever been permitted to enjoy the rights of a 
 citizen. How have I been brought hither ? 
 
 The chief justice said it was improper to go into these 
 digressions. 
 
 Mr. Burr said that the attorney for the United States 
 had mistaken his meaning, if he supposed that he wished 
 to be considered as standing there on a different footing 
 from other citizens ; that he viewed himself as only en- 
 titled to the same privileges and rights which belonged 
 to every other citizen ; that how much soever he may 
 have disapproved of certain principles laid down by the 
 supreme court in their late decisions-, he should not at 
 present insist on his objections to them ; that there were 
 many points on which the best informed jurymen might
 
 14 TRIAL OF AARON BURR. 
 
 be ignorant, or entertain doubts. All he wished the court 
 to do now was, to instruct the jury on certain points 
 relating to the testimony; for instance, as to the article 
 of papers. 
 
 Mr. Hay pledged himself that no attempt should be 
 made to send up any testimony to the jury without the 
 knowledge of the court. 
 
 Mr. Randolph obseryed, that it was not on particular 
 parts, but on certain principles of testimony, that he 
 wished instructions from the court to the jury ; for in- 
 stance, to instruct them how many witnesses were 
 necessary to satisfy them that an overt act was committed ; 
 how far facts committed in different districts should be 
 suffered to bear upon a single act committed in one dis- 
 trict ; how far facts done in one district, ought to be ad- 
 mitted as evidence to confirm the commission of other 
 facts in another district; and what, in short, was proper 
 evidence to be laid before them. 
 
 Mr. //tfj objected to this proceeding as extraordinary ; 
 that the opposite counsel would require from the court a 
 dissertation on the whole criminal law, upon every point 
 which might possibly occur ; that the jury were the 
 proper judges, and if they had doubts let them apply to 
 the court for instructions. 
 
 Mr. Wickham observed that this was not an ordinary 
 case, as had been said ; that the man who thought so 
 must have shut his eyes against the host of prejudices 
 raised against his client ; that the attorney for the United 
 States had said, that there was no man who had not 
 formed an opinion on it ; that he did not require a dissei- 
 tation on criminal law in general, but merely that the 
 court would instruct the jury on certain points of law 
 and evidence ; that the necessity of instructing arose 
 from the peculiarity of this case ; that there might be 
 witnesses from different parts of the United States, who 
 would state facts not connected with Colonel Burr ; thac 
 there were witnesses to show what was done in the west- 
 ern country when he was hundreds of miles distant ; that 
 the jury ought to know from the court how much of this 
 vast mass of testimony ought to have a legal application. 
 
 Mr. Hay enforced his former objection, that if the law 
 was to be laid down by the court, they would certainly
 
 MOTION TO INSTRUCT JURY. 15 
 
 wish to have it explained by both sides; that the gentle- 
 men on the other side wished the court to decide without 
 argument, on matters the most important ; that as the 
 jury were very intelligent, and the court had already 
 given a general definition of principles, the correct course 
 was to proceed in the usual way, without wasting time 
 in unnecessary argument. 
 
 Mr. Botts said that in a case of such unexampled im- 
 portance, which was sufficiently attested by the busy 
 crowd around them, the noise in the country, the curios- 
 ity of the people, and the activity of the government, 
 no reasonable objection could be made to even wasting 
 a few minutes; that it was a case where the prisoner 
 required, and ought to receive, the benefit of every legal 
 right which the court could furnish. 
 
 Chief justice observed, that there would certainly be a 
 difficulty in the court's giving dissertations on criminal 
 or penal laws ; that he was not prepared at present to 
 say, whether the same evidence was necessary before the 
 grand jury as before the petit jury ; whether two wit- 
 nesses to'an overt act were required to satisfy a grand 
 jury ; this was a point which he would have to consider. 
 That he had not made up his mind on the evidence of 
 facts said to be done in different districts, how far the 
 one could be adduced as evidence in proof or confirma- 
 tion of the other ; but his present impression was, that 
 facts done without the district, may be brought in to 
 prove the material fact said to be done within the district, 
 when the fact was charged. 
 
 The question was postponed for further discussion, on 
 Mr. Hay pledging himself, that no evidence should be 
 laid before the grand jury, without notice being first 
 given to Colonel Burr and his counsel. 
 
 MONDAY, MAY 25, 1807. 
 
 The court met according to adjournment. 
 
 The grand jury appeared in court, and on its being 
 stated by their foreman, that they had been two days 
 confined to their chambers, and had no presentment to 
 make or bill before them, Mr. Hay observed, that he had 
 two bills prepared, but wished to postpone the delivery of 
 them till the witnesses were present, and it was ascer-
 
 1 6 TRIAL OF AARON BURR. 
 
 tained that all the evidence relied on by the counsel for 
 the prosecution could be had. He thought it probable 
 that in the course of a week he should hear of General 
 Wilkinson, who was still absent, and whose testimony 
 was deemed very important. 
 
 A further conversation took place, as to the propriety 
 of adjourning the grand jury to a distant day of the term, 
 and Monday next was mentioned as the time when they 
 would probably be required to attend. 
 
 The chief justice observed, that from the researches 
 which he had been able to make, he was still inclined to 
 favor the opinion, that there was no necessity for calling 
 the grand jury every day. This opinion was the result of 
 his reflection upon principle, not formed from any posi- 
 tive authority on the subject. 
 
 Mr. Wick ham having stated, that as a number of wit- 
 nesses were attending at a considerable distance, on the 
 part of Mr. Burr, it might be important to know when 
 the grand jury would be again called. 
 
 Mr. Hay observed, that a motion might be made, 
 which would render their presence necessary, even on 
 that day. 
 
 Mr. Wick ham then requested, that before any order 
 should be taken in relation to the adjournment of the 
 grand jury, the counsel for the United States might state 
 the nature and object of his motion. 
 
 Mr. Hay. The object of my motion is to commit Mr. 
 Burr, on a charge of high treason against the United States. 
 On his examination there was no evidence of an overt 
 act, and he was committed for misdemeanor only. The 
 evidence is different now. 
 
 Mr. Wickham hoped, that the application might be 
 made and counsel heard. 
 
 Mr. Hay. Gentlemen may be assured that they will 
 be apprised of the application ; but it is their wish that 
 it should be made, and the subject discussed in presence 
 of the grand jury ? 
 
 Mr. Burr. The gentleman has mistaken the object of 
 my counsel, as far as it is comprehended in my motion. 
 The design was not that the grand jury might hear, but 
 that the impropriety of mentioning the subject in 
 presence of the grand jury, might be made more manifest-
 
 MOTION TO COMMIT. 17 
 
 I think it may be demonstrated, that while there is a 
 grand jury attending, before whom a question may be 
 determined, there is an obvious impropriety in submit- 
 ting it to any other tribunal for any other purpose. 
 
 The grand jury were requested to withdraw. 
 
 Mr. Hay renewed his application, stating more at 
 large the grounds on which it was made; and moved the 
 court to commit Mr. Burr on a charge of high treason 
 against the United States, on the evidence formally intro- 
 duced, and on additional testimony to be now brought 
 forward. 
 
 Mr. Wickham inquired what sort of evidence was 
 intended to be introduced : whether that of witnesses to 
 be examined viva voce, or affidavits in writing ? Mr. 
 Hay answered, that where the witnesses were present he 
 intended to examine them viva voce ; but where they 
 were absent to make use of their affidavits regularly taken 
 and certified. 
 
 Mr. Botts. We may have cause of much regret that 
 the attorney of the United States has not given us some 
 previous notice of this application. From the engage- 
 ments between the prosecuting and defending counsel, 
 to interchange information of the points intended to be . 
 discussed, we had a right to expect, that upon a subject 
 like this, involving questions ne*v and important, we 
 should not have been taken by surprise. Indeed, from 
 the common courtesy and candor of the attorney of the 
 United States, we might have reasonably calculated on 
 a previous communication. This interchange of civility 
 and information, usual even in cases of inferior import- 
 ance, was more necessary in this case, because the appli- 
 cation is as unfortified by precedents as it is unexpected; 
 and because it involves questions of deep consideration 
 and weighty importance. 
 
 Mr. Hay interrupted Mr. Botts. Since the gentle- 
 man complains of being taken by surprise, I am willing 
 to postpone the motion till to-morrow. 
 
 Mr. Botts. Not a moment's postponement. Al- 
 though we sustain considerable inconvenience by being 
 thus suddenly and unexpectedly called upon, without 
 reflection or authorities, yet we should experience great- 
 er by a day's delay. I shall therefore beg leave to make 
 i. 2
 
 i8 TRIAL OF AARON BURR. 
 
 a few remarks on this extraordinary application, and the 
 pernicious effects such an extraordinary measure, if gen- 
 erally practiced, would inevitably produce. The organ 
 particularly appropriated for the consideration of the 
 evidence which this 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 
 jurors' oath is to inquire into all crimes and misdemean- 
 ors committed within the district of the state of which 
 they are freeholders. Their office is to perform that 
 Avhich the court is now called upon to perform. To 
 them belongs the exclusive duty of inquiring and exam- 
 ining into all species of evidence, which may lead to a 
 conviction of the crime 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. He is 
 obliged, previously, without a full hearing of both sides 
 of the case, to commit himself upon the case of the ac- 
 cused. Every one will agree, that a judge should, if 
 possible, come to the office of trial as free from prepos- 
 session, as if he had never heard of the case before. It is 
 true, that when a grand jury is not embodied, in order 
 to avoid a failure of justice, and to prevent the guilty 
 from escaping, the measure which the gentleman now 
 proposes, would not only be proper but necessary. The 
 examining and committing office of the judge is, in such 
 cases, justified by the necessity of the case ; but then it 
 is because the appropriate body of inquest is not impan- 
 eled to perform the office. The necessity does not exist 
 here. This novel mode of proceeding would give the 
 attorney for the United States the chance of procuring 
 an opinion from the court unfavorable to 'the accused. 
 Failing in that chance, he would then resort to his only 
 legal one before the grand jury. Why should this 
 court step out of its ordinary course to forestall or 
 influence the deliberations of the grand jury and the 
 public ? The motion is without precedent, or reason to 
 warrant such a precedent ; it is oppressive and against 
 all principle ; it is unreasonable and oppressive, that the
 
 ARGUMENT. 19 
 
 functions of the grand jury should be suspended, in order 
 that the court should assume them. Although in the 
 absence of the grand jury, it would be proper in the court 
 to determine a question of commitment, yet the history 
 of our criminal jurisprudence yields no instance of such 
 a motion during the session of the grand jury. I did 
 expect, that some solitary reason would have been given, 
 by the gentleman for the prosecution, in support of his 
 motion ; I did expecf, sir, that all the books of England 
 would have been ransacked ; I did suppose, sir, that the 
 musty pages of folios and quartos would have been 
 opened to support his argument ; I did expect, at least, sir, 
 that one case of state practice would have been produced. 
 In this expectation I am disappointed. I say then, sir, 
 that the motion before the court is without precedent, 
 unreasonable in its nature, inconvenient in its effects, 
 and oppressive in its end ; of a piece with the long 
 course of oppression which has been practiced against 
 Colonel Burr, but has been hitherto unknown in this 
 country ; unheard of in any country which enjoys the 
 blessings of freedom, and which, I trust, will never again 
 be repeated in these states. 
 
 Colonel Burr appears in this court ready to go on with 
 his trial ; he wishes no delay ; he is orjposed to every 
 measure which may occasion delay or procrastinate the 
 business. His great object is to satisfy his country, the 
 minds of his fellow-citizens, and even his prosecutors, 
 that he is innocent. We have suffered already two or 
 three days to pass away in idle discussion, or without 
 doing anything : and yet we are told, at last, after the 
 lapse of several months ; after a grand jury have been 
 convened and gone into their room ; after attending 
 with great inconvenience to themselves and expense to 
 the state ; after all this, we are told, that the business of 
 commitment is again to be gone over; that the evidence 
 which ought to be given to the grand jury, the only pro- 
 per tribunal at this time for its consideration, is to be 
 submitted to the court. We have, sir, made enough of 
 sacrifices ; we have been deprived of our legal rights ; 
 our person and papers have been seized ; we have been 
 subjected to a military persecution unparalleled in this 
 country ; given into the custody of the satellites of mili-
 
 to TRIAL OF AARON BURR. 
 
 tary despotism, and guarded by the rigid forms of mili- 
 tary law ; surely our wrongs ought now to end. It was 
 rumored that he would not appear; but he has appeared. 
 We come to ask a legal trial ; an examination into the 
 charges which have been preferred against us. The 
 government has had the time and necessary means of 
 preparation, and they ought to be prepared. Our 
 pleasure was, to await the pleasure of the prosecution, 
 unless that pleasure should be found to be oppressive. 
 But we are told now, that the indictment can not go up ; 
 but in the mean time an inquisition must be held. Per- 
 mit me to advert for a solitary moment, to one circum- 
 stance. If we had sought every legal advantage, our 
 motion would have preceded theirs; our motion would 
 have been, that, if they were not ready to present their 
 evidence before the grand jury, Colonel Burr should be 
 discharged from the recognizance already given. 
 
 The laws of congress have adopted our rules and prac- 
 tice in the states, in proceedings, upon indictments for 
 misdemeanors. You were of opinion, you well remem- 
 ber, sir, that nothing more than . probable cause of 
 suspecting a misdemeanor appeared against Colonel 
 Burr. Even after an indictment in Virginia for a mis- 
 demeanor, notking more than a summons can go against 
 a person indicted. No court in the commonwealth, ever 
 permitted a capias to go in the first instance, unless the 
 case passed siib silentio. Now, arrest and bail are utterly 
 incompatible with a summons ; and surely, if an indictee 
 can not be arrested, one merely suspected can not be 
 held to bail. The conduct of Judge Chase, in award- 
 ing a capias against Callender, was the subject of one of 
 the charges in his impeachment. Mr. Hay, vehemently 
 and ably contended, that a summons only ought to have 
 issued against him. 
 
 I know that the court may have an impression that I 
 am wandering from the subject. I will soon show what 
 application the recognizance already taken has to the 
 motion to examine witnesses, in order to commit for 
 treason. 
 
 Notwithstanding, Colonel Burr was committed upon 
 a charge of misdemeanor, when, according to the state 
 laws, he would not have been committed, a public preju-
 
 ARGUMENT. 21 
 
 dice has been excited against the lenity of the measure; 
 and attempts have been made, through newspapers and 
 a popular clamor, to intimidate every officer who might 
 have any concern in the trial. This p-ublic prejudice 
 would be increased by the present motion rather than 
 allayed, if the necessary explanation should not be made. 
 The multitude around^us must hear what is passing, and 
 we can not submit to a course which would further in- 
 vest the public mind with poison already too plentifully 
 infused. I do not charge the attorney of the United 
 States with a design to excite or increase this public 
 prejudice; but I know it will be increased, unless care 
 be taken to show that the public clamor has been 
 groundless. I take it for granted, that after this view of 
 the subject, whatever motive dictated the application, it 
 will now be abandoned, and that the gentleman will with- 
 draw his motion. I will not weary out the patience of 
 the court ; but conclude by saying, that I sit down in 
 anxious hope, that the success of this motion may not 
 add to the catalogue of Colonel Burr's grievances. 
 
 The chief justice inquired whether the counsel for the 
 prosecution intended to open the case more fully? 
 
 Mr. Hay 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. That the general power of the court to 
 commit, could not be questioned; and if gentlemen 
 contended, that it ought not to be exercised in the 
 present case, it was incumbent on them to show it. 
 That Mr. Botts, himself, had not denied it. That his 
 whole argument turned on the question, not whether the 
 court had the right, but whether it was expedient now 
 to exercise it. Its expediency depended on the evi- 
 dence ; if that was sufficient, there could be no doubt of 
 the power. That if the court once admitted, as an ex- 
 ception to this principle, that the grand jury was in 
 session, they would establish a precedent fraught with 
 the most injurious consequences. 
 
 Mr. Wickham. It certainly would have been an ac- 
 commodation to us, if the gentlemen had given us notice 
 rf their intended motion. We come into this discussion
 
 22 TRIAL OF AARON BURR. 
 
 completely off our guard, completely unprepared ; and it 
 may be presume'd, that it was merely an omission in the 
 opposite counsel, not to have given us notice of the mo- 
 tion which they intended to bring forward. Because it 
 was distinctly understood between us (by an argument 
 made, I believe, in the hearing of the court), that if any 
 specific motion was to be made oji either side, timely 
 notice of its nature and object was to be given. I am 
 sorry that they have departed from their agreement in 
 the present instance ; but if I have not forgotten every 
 principle of law which I ever learnt, every principle of 
 common justice, this motion can not be supported. 
 
 Mr. Hay. The gentleman will permit me to set him 
 right. He might have relied on my candor, that when I 
 was about to lay my indictments before the grand jury, 
 I would have given him timely notice of my intention. 
 They might then have moved for the instruction to the 
 jury, which they are so anxious to obtain. This was the 
 only understanding between us on the subject ; our 
 agreement extended no further ; much less to the par- 
 ticular case before the court. On the other hand, there 
 was a very strong reason against our making this com- 
 munication. I feel no hesitation, sir, in assigning this 
 reason ; and I hope that it will wound neither the feel- 
 ings of the prisoner nor of his counsel. I did not intend 
 to have laid it before the court, but I now conceive my- 
 self called upon to be thus explicit. The fact is this : Mr. 
 Wilkinson is known to be a material witness in this pros- 
 ecution ; his arrival in Virginia, might be announced in 
 this city, before he himself reached it. I do not pretend 
 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 
 this communication to the opposite counsel, because it 
 might have defeated the very end for which it was in- 
 tended. I have said, that the only pledge I gave, merely 
 related to the indictments to be sent up to the grand jury.
 
 ARGUMENT. 23 
 
 Mr. Wickham observed that after this explanation, he 
 must suppose, that he had misapprehended the extent 
 of their agreement. He knew the gentleman too well 
 to think that he had intentionally misled him ; but what 
 could he think of the motion he had made? It was a 
 strange episode which he weaved into his tale ; it may be 
 good poetry, indeed, but it was not certainly proper 
 matter of argument. Every man who hears me, every 
 man who has ever read on the subject, must know what 
 are the feelings which dictate these suspicions of Colonel 
 Burr. Some mortification was felt by his enemies (not 
 that the attorney for the United States, himself, ever 
 felt it), that he returned here for trial. But here Colonel 
 Burr is, and always will be ready to meet every charge 
 they may think proper to bring against him ; and to face 
 every man who dares say anything against him. The 
 gentleman will not open his case, and why? Because 
 when he has heard our arguments against his motion, he 
 may come out with the adverse arguments against us. 
 If they do not choose to open their case, we hope the 
 court will grant us the right of concluding the argument. 
 
 Here a desultory conversation ensued upon the order 
 of proceeding. 
 
 Mr. Edmund Randolph observed, that the power of 
 the court to commit, was not denied ; but that the expe- 
 diency of committing, while a grand jury was in session, 
 was denied ; that it was improper that an inquiry which 
 belonged exclusively to that body, should be transferred 
 to the court. 
 
 Mr. Hay said that it made no difference in law, 
 whether the grand jury were in session or not ; that the 
 grand jury being in session could not deprive the court 
 of the power with which they were vested. Let me 
 state a case, said Mr. Hay. Suppose Colonel Burr had 
 only arrived in Richmond this morning, instead of 
 having been brought at the period of his first examina- 
 tion, would his counsel contend that the court would 
 not think it proper to commit him, instead of bringing 
 the question immediately before the grand jury, when 
 the prosecutor was not furnished with the necessary 
 evidence ? This is precisely the case at present. From 
 additional evidence, which has come into my possession
 
 2 4 TRIAL OF AARON BURR. 
 
 since his examination, it appears to me, that upon a dis- 
 closure of it to the court, they will see proper that he 
 should be committed on the charge of treason ; but to 
 complete this evidence still more, the testimony of Gen- 
 eral Wilkinson is essential; and until his arrival, it would 
 be improper to submit jt to the grand jury ; although it 
 is necessary for the reasons I have stated, that it should 
 be submitted at present to the court. 
 
 Mr. Wickham meant to support bis arguments on the 
 grounds of law and precedent : he read the revised code 
 of Virginia, page 103, 10,' which he contended were 
 plainly in his favor. He observed, that the present 
 motion was unprecedented in a system of criminal juris- 
 prudence, which was upwards of one hundred years old. 
 If this motion be a proper one, there must be some pre- 
 cedents in this country or in England. If there be none 
 such, their motion can not be supported ; and as the 
 gentlemen have not produced them, it is fair to infer, 
 that there are none such. It is therefore obvious that 
 the present motion is contrary to the acts of Virginia, as 
 well as to the common law. The attorney for the 
 United States says, that he can take no final measures 
 till General Wilkinson is present. His deposition is 
 greatly relied upon. Now, sir, I refer to you as well as 
 to the supreme court of the United States, where you 
 presided, that the facts contained in that deposition did 
 not amount to treason, but to a probable proof of a mis- 
 deameanor only. As to General Eaton's, it is not relied 
 on ; the sole reliance of the prosecution is on Wilkin- 
 son's; of course, if Wilkinson himself were present, he 
 would prove nothing new. But if General Wilkinson be 
 so material a witness, why are they not prepared 'to go 
 with him before the grand jury? Why is he not here? 
 He is a military officer, bound implicitly to obey the 
 head of the government. In the war of Europe, a 
 general has been known to march the same distance at 
 the head of his army, in a shorter time than General 
 Wilkinson has had to pass from New Orleans to this 
 place. He is bound to go wherever the government 
 directs him; to march to Mexico ; to invade the Floridas ; 
 or to come to this city. Perhaps there are other reasons 
 for his not coming, but let us not press this subject.
 
 ARGUMENT. ?5 
 
 What, sir, is the tendency of this application ? What 
 is the motive ? I have no doubt the gentle men 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 repu- 
 tation of my client. I do not charge the government 
 with this attempt ; but the thing is actually done. At- 
 tempts have been made. The press, from one end of 
 the continent to the other, has been enlisted on their 
 side to excite prejudices against Colonel Burr. Preju- 
 dices ? 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 misrepresen- 
 tations? to shut out every effort to excite further preju- 
 dices, until the case is decided by a sworn jury? not by the 
 floating rumors of the day, but by the evidence of sworn 
 witnesses? The attorney for the United States offers 
 to produce his testimony; no doubt, the most violent ; 
 no doubt, the least impartial which he can select ; testi- 
 mony, which is, perhaps, to be met and overthrown by 
 superior evidence. Do they, besides, wish that the 
 multitude around us should be prejudiced by garbled 
 evidence ? Do precedents justify such a course as this ? 
 Produce your witnesses, they may say. No, sir, Colonel 
 Burr is ready for a trial ; but he wishes that trial to come 
 before a jury. I do not pretend to understand the 
 motives which led to those things; it is enough, that 
 they produce these mischievous effects upon ourselves. 
 Should government, hereafter, wish to oppress any 
 individual ; to drag him from one end of the country to 
 the other by a military force ; to enlist the prejudices of 
 the country against him ; they will pursue the very 
 same course which has now been taken against Colonel 
 Burr. He is here ready for trial. They admit that their 
 testimony is not sufficient to bring him before the grand 
 jury, and of course, to find an indictment against him. 
 Why, then, is this partial evidence to be exhibited on a 
 motion for commitment ? It is to nourish and keep 
 alive the prejudices already circulated against him. WilJ
 
 26 TRIAL OF AARON BURR. 
 
 they, then, press a motion like this? Be it so. I hope 
 the motion will be rejected, and that the court will stand 
 between the innocent and his pursuers ; for every man 
 is presumed to be innocent, before he is found guilty. 
 
 Mr. Wirt. May it please your honors, 
 
 The attorney for the United States, believing himself 
 possessed of sufficient testimony to justify the commit- 
 ment of Aaron Burr for high treason, has moved the 
 court to that effect. In making this motion, he has 
 merely done his duty. It would have been unpardon- 
 able in him to omit it ; yet the counsel for the defense 
 complain of the motion and the want of notice. As to 
 the latter objection, it must be palpable, that the nature 
 and object of the motion rendered notice improper. 
 The gentlemen would have the attorney to announce to 
 the party accused, that he was, at length, in possession 
 of sufficient evidence to justify his commitment for 
 high treason ; and, that being apprehensive he might not 
 be disposed to stand this charge, he intended, as soon as 
 the accused came into court next morning, to move his 
 commitment ! This would really be carrying politeness 
 beyond its ordinary pitch. It would not have deserved 
 the name of candor, sir ; it would, in fact, have been an 
 invitation to the accused to make his escape. But, as 
 gentlemen seem to doubt, at least with an air of some 
 earnestness, the propriety of this motion at this time, 
 and express their regret that they have not had time to 
 examine its legality, the attorney has offered to waive 
 the motion until to-morrow, to give gentlemen the 
 opportunity which they profess to desire ; but no, sir, 
 they will not even have what they say they want, when 
 offered by the attorney. Another gentleman, after hav- 
 ing demanded why this motion was made, and by that 
 demand drawn from the attorney an explanation of his 
 motives, has been pleased to speak of the attorney's 
 statement, of his apprehensions, as an episode, which 
 " though good poetry," he says, " had better have been 
 let alone, when such serious matters of fact were in dis- 
 cussion." It may be an episode, sir ; if the gentleman 
 pleases, he is at liberty to consider the whole trial as a 
 piece of epic action, and to look forward to the appro- 
 priate catastrophe. But it does not appear to me to be
 
 ARGUMENT. 27 
 
 very fair, sir, after having drawn from the attorney an 
 explanation of his motives, to complain of that ex- 
 planation : if a wound has been inflicted by the expla- 
 nation, the gentlemen who produced it, should blame 
 only themselves. But, sir, where is the crime of con- 
 sidering Aaron Burr as subject to the ordinary operation 
 of the human passions? Towards any other man, it 
 seems, the attorney would have been justifiable in using 
 precautions against alarms and escapes ; it is only im- 
 proper when applied to this man. Really, sir, I recol- 
 lect 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 genera' principles, and to take care that 
 justice be had against every person accused, by whatever 
 name he may be called, or by whatever previous reputa- 
 tion 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, this power of the court is suspended; and 
 the commitment can not 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, comes im- 
 properly 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 re- 
 ported 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 unreason- 
 able and destructive of the principles of justice; for if 
 the doctrine be true at all, that the presence of a grand 
 jury suspends the power to hear and commit by any other 
 authority, it must be uniformly and universally true in 
 every other case as well as this, and in every case Which ,
 
 28 TRIAL OF AARON BURR. 
 
 can be proposed while a grand jury is sitting. Now, sir, 
 let us suppose, that immediately on the' swearing of this 
 grand jury, and their retiring to their chamber, Aaron 
 Burr had for the first time been brought to this town ; 
 the members of the evidence scattered over the conti- 
 nent ; the attorney, however, in possession of enough 
 to justify the arrest and commitment of the accused 
 for high treason, but not enough to authorize a grand 
 jury to find a true bill. What is to be done? The 
 court disclaims any power to hear and commit, because 
 there is a grand jury ; the grand jury can not find a true 
 bill, because the evidence is not sufficient to warrant 
 such a finding ; the natural and unavoidable conse- 
 quence would be, that the man must be discharged, and 
 then, according to Mr. Wickham's principles of ethics, 
 that every man must be supposed to intend the natural 
 consequences of his own acts, the gentlemen who 
 advocate this doctrine intend that Aaron Burr shall be 
 discharged without a trial. 
 
 I beg you, sir, to recollect what was said by gentle- 
 men the other day, when you were called upon to give 
 an additional charge to the grand jury. You were told 
 that a grand jury should require the same evidence to 
 find a true bill, which a petit jury would require to con- 
 vict the prisoner. Connect this principle with the doc- 
 trine in question : the sitting of the grand jury suspends 
 all power to convict by any other body, and the grand 
 jury can not find a true bill, unless on evidence on which 
 they would convict as a petit jury: connect these two 
 principles, and consider the immaturity of evidence, 
 which always exists at the period of arrest and commit- 
 ment : and the sitting of the grand jury, instead of being 
 a season of admonition and alarm, becomes a perfect 
 jubilee to. the guilty. But it is said, that this is " an at- 
 tempt to divest the constitutional organ of its justand pro- 
 per power." I believe, sir, it was never before heard, that 
 an application to commit for safe keeping, was an encroach- 
 ment on the power of the grand jury. Would the gen- 
 tlemen have us to address this motion to the grand jury? 
 they might as well propose, that we should submit the 
 bill of indictment to the court, and desire them to say, 
 whether it is a true bill or not ? This would be indeed,
 
 ARGUMENT. 29 
 
 
 
 the " shifting of powers," of which the gentleman com- 
 plains. As it is, sir, there is no manner of collision 
 between the power which we call upon the court to 
 exercise, and the proper power of the grand jury. The 
 justices arrest and commit, for safe keeping; then comes 
 the function of the grand jury, to decide on the truth of 
 the indictment exhibited against the prisoner. The two 
 offices are distinct in point of time, and totally different 
 in their nature and objects. But it is said, that " there 
 is a great inconvenience in submitting a great law officer 
 to the necessity of expressing an opinion on the crime, 
 on a motion like this that the judge like the juror, 
 should come to the trial " with his mind pure and un- 
 biassed." This argument does not apply to the legality 
 of the power, which we call upon the court to exercise ; 
 it goes merely to the expediency of exercising it ; and if 
 the argument be true, the court ought never to commit, 
 whether the the grand jury be sitting or not. This, how- 
 ever, sir, is a matter for legislative, not for judicial con- 
 sideration. Whenever the legislature shall decide, by 
 the force of this argument, that the court which commits 
 shall not sit on the trial in chief, a motion like this will 
 become improper. At present however,- the legislature 
 has left this power with the court, and we claim its exer- 
 cise for considerations of the most serious importance to 
 truth and justice. 
 
 But, sir, we are told that this investigation is cal- 
 culated to keep alive the public prejudices; and we hear 
 great complaints about these public prejudices. The 
 country is represented as being filled with misrepresenta- 
 tions 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 pro- 
 cedure. But if the motion is likely to have this effect, 
 we can not help it. No human institution is free from 
 inconveniences; the course we hold is a legal one, a 
 necessary one: we think it a duty. It is no answer to 
 us to say, that it may produce inconveniences to the 
 prisoner. But let us consider this mournful tale~of pre- 
 judices, and the likelihood of their being excited by this 
 motion. Sir, if Aaron Burr be innocent, instead of
 
 3 o TRIAL OF AARON BURR. 
 
 resisting this motion, he ought to hail it with triumph 
 and exultation. What is it that we propose to intro- 
 duce? not the rumors that are floating through the 
 world, nor the bulk of the multitude, nor the specula- 
 tions 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 inflamed 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. Who- 
 .ever before heard of such an apprehension as that which 
 is professed on the other side? prejudice excited by evi- 
 dence! Evidence, sir, is the great corrector of preju- 
 dice. 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 this evi- 
 dence ; evidence can be promotive 'only of truth. I 
 repeat it, then, sir, why does he shrink from evidence? 
 The gentlemen on the other side can give the answer. 
 On our part, we are ready to produce that evidence. 
 Permit me now, sir, to turn to the act of assembly which 
 has been read by Mr. Wickham. Into what embarrass- 
 ments must the ingenious and vigorous mind of that 
 gentleman have been driven, before he would have taken 
 refuge under this act of assembly? It is but to read it 
 to see that it has no manner of application whatever to 
 this motion ; that it applies to the case of a person 
 already committed ; declaring that such a person shall 
 be bailed, if not indicted at the first term after his com- 
 mitment, and discharged if not indicted at the second 
 term. Revised code, page 103, 10. It begins thus : 
 " When any person committed for treason." Now. sir, 
 is Aaron Burr committed for treason ? If not, it is 
 obvious that the clause has no manner of application to 
 him. Why, sir, the object of this motion is to commit 
 him ; gentlemen must have been in strange confusion 
 when they resorted, to this law. Mr. Wickham asks if 
 General Wilkinson be a material witness, why he is not
 
 ARGUMENT. 31 
 
 here ? Who is General Wilkinson ? says that gentle- 
 man. Is he not the instrument of the government, 
 bound to a blind obedience? I am sorry for this and 
 many other declamatory remarks which have been un- 
 necessarily and improperly introduced ; but the gentle- 
 man 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. Colorfel 
 Burr indeed has been harassed by a military tyrant, who 
 is " the instrument of the government bound to a 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 under- 
 stood, 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 ears, 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 preju- 
 dices ; they would convert this judicial inquiiy into a 
 political question ; they would make it a question be- 
 tween 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 defense. Besides, sir, this is not our 
 business ; at present we have at\ 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. Let us return to Aaron Burr. " Why is not 
 General Wilkinson here?" Because it was impossible in 
 the nature of things for him to be here by this time. It 
 was on the first of April that you decided on the com- 
 mitment of Aaron Burr for the misdemeanor; until that
 
 32 TRIAL OF AARON BURR. 
 
 decision was known, the necessity of summoning wit* 
 nesses could not be ascertained. General Wilkinson is 
 the commander-in-chief of the American troops, in a 
 quarter where his presence is rendered important by the 
 temper of the neighborhood; to summon him on the 
 mere possibility of commitment would have afforded a 
 ground of clamor, perhaps a just one, against the admin- 
 istration. The certainty that Aaron^Burr would be put 
 upon his trial, could not have been known at Washing- 
 ton till the 5th or 6th of April. Now, sir, let the gentle- 
 men on the other side make a slight calculation. Or- 
 leans is said to be 1500 or 1600 miles from this place. 
 Suppose the United States' mail traveling by a frequent 
 change of horses and riders, a hundred miles per day, 
 shpuld reach Orleans in 17 days from the federal city, it 
 would be the 24th or 25th of April (putting all accidents 
 out of the question) before General Wilkinson could have 
 received his orders to come on. Since that time until 
 this, he has had thirty days to reach Richmond. Could 
 a journey of 1500 or 1600 miles be reasonably performed 
 in thirty days? Who can bear a journey of 50 miles per 
 day for thirty days together? But, sir, General Wilkin- 
 son is not here ; due means have been used to bring him 
 hither ; his materiality is ascertained by his affidavit, 
 and the attorney does not choose to send up the indict- 
 ment in his absence. But we admit, it seems, that we 
 are not ready to make good our charge. In my opinion 
 there is evidence enough to prove the treason indepen- 
 dently of General Wilkinson. But it is important in 
 every point of view, that that gentleman should be here. 
 It is important to his own reputation ; it is important to 
 the people of the United States that he should be here ; 
 and on the part of the grand jury, sir, there is no calcu- 
 lating what inferences unfavorable to the prosecution 
 might be drawn from the mere circumstance of his 
 absence. The attorney is therefore, in my opinion, very 
 right not to hazard the justice and the fair trial of this 
 case, by sending 'up the indictment in General Wilkin- 
 son's absence. 
 
 But it seems that Wilkinson's affidavit has been 
 already decided to have no relation to the charge of 
 treason. To what General Wilkinson's affidavit tended
 
 ARGUMENT. 33 
 
 while it was inomalated, insulated, or connected only 
 with that of General Eton, is no proof of what its ten- 
 dency may be now, in connection with the great mass 
 of additional testimony which we have collected. Sir, > 
 we say that it is the key-stone which binds the great 
 arch of evidence now in our possession. As to sending 
 up the indictment, it is out of the question ; truth and 
 justice require that it should not now be sent up. But 
 we hope, sir, that the motion to commit Aaron Burr 
 will be received, because we think it not only a legal, 
 but also a just and necessary measure of precaution.. 
 
 Mr. Hay. On this occasion, I beg leave to make one 
 or two preliminary remarks. I stand here engaged in 
 the performance of a very serious duty. The duty I 
 have to perform is, indeed, most serious and important. 
 The subject now before us is one which deeply affects 
 the character of the government ; and the charge is 
 the most solemn and interesting that can be exhibited 
 against any individual. The motion I have to make is, 
 that Aaron Burr may be committed on a charge of 
 treason against the United States ! 
 
 Sir, it was natural to suppose, that such a serious 
 charge would have made a most serious impression 
 upon Aaron Burr's mind ; that he would have roused 
 all the energies of his understanding in his service, in 
 vindicating himself, and not in casting imputations upon 
 the government. Why, then, does he turn from defend- 
 ing himself to attack the administration ? Why these 
 complaints of persecution which have fatigued our ears ? 
 I most solemnly deny the charge. I most confidently 
 avow, that there is not a tittle of evidence to support it. 
 None can be produced, unless it be a persecution, that 
 the government brings him before a legal tribunal, 
 where his guilt or innocence will be impartially estab- 
 lished. Aaron Burr stands accused of the 'highest 
 crimes and misdemeanors; he stands charged with a 
 deliberate design of involving his country in all the 
 horrors of a civil insurrection, or of entangling her in a 
 war with a foreign nation. This is the true question 
 before the court ; and instead of meeting this charge 
 with the energy and firmness which became him ; in- 
 stead of confronting it with his evidence, he complains 
 x. 3
 
 34 TRIAL OF AARON BURR. 
 
 forsooth of persecution ! And where, sir, is this tre- 
 mendous persecution ? " Because he was sent here by 
 a military authority ?" But Aaron Burr has been tried 
 in the country where he was arrested ? Was Blanner- 
 hasset's island in the Mississippi territory? Or ought he 
 not to have been conveyed to that judicial district, 
 which possessed a competent jurisdiction ? But if Aaron 
 Burr ought to have been sent hither, by what number 
 of men should he have been escorted ? Was it by one 
 man only; from whom he could have been so easily 
 rescued, and whose vigilance he could most probably have 
 eluded ? Or ought he to have been conveyed, as he 
 really was. by the energy of men, like Perkins, whose un- 
 shrinking firmness, and whose humanity (in the presence 
 of Aaron Burr, himself, I avow it, let him deny it if he 
 can), had completely qualified him for the safe trans- 
 portation of his prisoner? But, sir, when this cry and 
 yell of persecution is once excited,, it is not easy to set 
 bounds to its fury. Not contended with inveighing 
 against the pretended persecution of the government, 
 a government which never did persecute, a govern- 
 ment which can not persecute, and which will forever 
 stand firm in the affections of the people, from the 
 integrity and intelligence which mark its measures. 
 Not contented with lavishing their complaints against 
 the government, the counsel for the prisoner have even 
 turned against the humble instruments who conduct 
 the prosecution. They seriously complain, that we 
 have given them no previous notice of this motion ; and 
 these are the very men who have so often offered mo- 
 tions to this court, without the slightest intimation to 
 ourselves. Sir, I most positively assert, that no notice 
 in the present case ought to have been given. I shall 
 not pretend to assert that Aaron Burr was disposed, 
 under the present state of things, to effect his escape. 
 But I say that supposing such to have been the fact, 
 and supposing that, availing himself of the information 
 which we had imparted, he should have taken flight ; I 
 appeal to the candor of every impartial man ; I appeal 
 to the candor of the opposite counsel themselves, 
 whether I should not have been guilty of a most gross 
 violation of my duties?
 
 ARGUMENT. 35 
 
 But they say he ought not to be committed, because 
 the presence of the grand jury suspends the authority of 
 this court. But where are the precedents which justify 
 this position ? I have not made many researches into 
 this case, because I did not suppose that there was a 
 single skeptic at this bar who would deny the universality 
 of the proposition that we have laid down that it was 
 the right of the court to commit in every case where 
 they deemed it proper. They say that in this case, the 
 power of the grand jury and the court are concurrent. 
 Strange that they should forget the immense difference 
 between their powers ! the evidence which is sufficient 
 before the latter, is widely different from that which is 
 necessary to be produced to the former. The testimony 
 requisite to induce the court to commit the person 
 accused is less than we are bound to submit to the grand 
 jury, and much less than that which alone is admissible be- 
 fore the petit jury. I will quote the authority of the gen- 
 tlemen against themselves. They say that stronger 
 evidence is necessary before the grand jury than before a 
 court for the examination of a prisoner. I think differ- 
 ently myself; but certain it is, that affidavits are not 
 admissible to be sent to the grand jury; although they 
 may be used to convince the court that it is proper to 
 commit. For my part, I think we are already in pos- 
 session of viva voce evidence not only sufficient to com- 
 mit Colonel Burr, but to induce the grand jury to find 
 in favor of both the indictments ; but I will boldly in- 
 quire, whether I should discharge my honest duty, were 
 I to submit my indictments before the grand jury at 
 this moment, when I have not all the material evidence 
 which we may possess ? Sir, these gentlemen may cast 
 their groundless censures upon me; but in vain; all 
 their clamors will never move me from my purpose. 
 The course which I am pursuing is sufficient to satisfy 
 my own conscience; and it is indifferent to me whether 
 ten or ten thousand men should join in my condem- 
 nation. 
 
 Mr. Botts asserts that we have produced no authori- 
 ties to prove our position ; and that we have none to 
 produce. But is it right to be continually recurring to 
 precedents ? Is there no allowance to be made for the
 
 36 TRIAL OF AARON BURR. 
 
 operations of common sense, in any case ? Where cases of 
 doubt and difficulty occur, a reference of this kind is cer- 
 tainly propeY to enlighten and fortify our own judgments. 
 But even admitting the propriety of introducing prece- 
 dents in the whole extent for which gentlemen contend, 
 it is their business and not ours to comply with the 
 -requisition for precedents. We stand upon the broad, 
 general principle, that courts have the power to commit. 
 If gentlemen confess this principle in the present case, 
 why do they not introduce their countervailing author- 
 ities? 
 
 I regret that my duty did not permit me to give my 
 friend Mr. Wickham notice of this motion, that he might 
 have more seriously meditated upon the subject before 
 he urged his objections. If he understood it with his 
 usual correctness, he never would have troubled the 
 court with the law of Virginia : for this law has not the 
 slightest bearing upon the specific proposition before 
 you. 
 
 Mr. Wickham inquires why we do not at once send up 
 our indictments before the grand jury? Suppose, sir, 
 we should pursue the course which he recommends; 
 suppose we should send up our indictments on the evi- 
 dence which is now in our possession ; several days 
 might elapse before they would be able to investigate 
 this body of evidence. In the meantime, some of those 
 numerous persons, who are prying into every hole and 
 corner of this city, might probably catch some distant 
 hint of the probable decision of the jury. They have 
 certainly too much discretion not to keep their own 
 counsel; but it is absolutely impossible to exclude com- 
 pletely the busy eye of curiosity. Some vague insinua- 
 tions may probably escape; something which might 
 justify a suspicion of their determination. Suppose, then, 
 that Aaron Burr were to be actuated by these considera- 
 tions ; suppose that his fears, (if fears he can feel) should 
 prompt him to escape, what, sir, would become of our 
 indictment? Mr. Burr may quit the United States ; he 
 may flee forever beyond the jurisdiction of this coun- 
 try ; and in that case, the whole world would ridicule us 
 for the course we had pursued. Or let us even suppose 
 that we were to withdraw this motion, where would be
 
 ARGUMENT. 37 
 
 our security? Must we trust to the indulgence of Mr. 
 Burr himself for remaining in this city and standing his 
 trial ? 
 
 We expect General Wilkinson here in a few days. 
 We have an affidavit which positively states, that an ex- 
 press to New Orleans, to command his presence on this 
 trial, was met on the frontiers of the Mississippi Terri- 
 tory ; we have also letters from the attorney-general of 
 the United States, explicitly stating that General Wil- 
 kinson has been officially authorized to leave the army 
 of the United States, and select whatever mode of trans- 
 portation he might think proper. [Here Mr. Hay read 
 the affidavit, showing that the express to General Wil- 
 kinson had been seen in Athens, in the state of Georgia.] 
 In the meantime, what is Colonel Burr's situation ? It 
 is completely optional with him, whether to stay here 
 and face his accusers, or to avail himself of his liberty 
 and leave the United States. We call upon this court 
 to exercise the authority with which they are invested ; 
 and by binding over Colonel Burr, as well on the charge 
 of high treason, as of a misdemeanor, to detain him here 
 for a satisfactory trial. 
 
 We scarcely expected to have been asked, why Gen- 
 eral Wilkinson was not here? The gentleman himself 
 has said that he is a general. Can he then leave his army 
 at any time, and without the permission of the govern- 
 ment ? Make, however, a computation of time. The 
 attorney-general left this city on the 4th or 5th of April. 
 He reached Washington on the 7th or 8th. Allow then 
 a reasonable time for an express from Washington to 
 New Orleans ; and for a man of General Wilkinson's age 
 and bulk to travel to this city, and is it probable that 
 he could have arrived here before this period ? If he 
 availed himself of the liberty and means to come by 
 water, the gales have been lately very severe. And 
 even two of the grand jury have assured me, that if Gen- 
 eral Wilkinson was exposed to the late tempestuous 
 weather, he will probably never see the United States. 
 Mr. Wickham has expatiated upon the attempts made to 
 prejudice the public opinion through the medium of the 
 press. Sir, a great deal has been said in the newspapers 
 :apon this transaction, and a great deal will yet be said
 
 38 TRIAL OF AARON BURR. 
 
 But are the presses shut against Colonel Burr, when even 
 in this very city certain presses have been found to vin- 
 dicate his motive and designs? But what of all this? 
 The public mind is hostile to any encroachment upon 
 the liberty of the press ; and it ought to be so. Where 
 a crime of such gigantic enormity as that attributed to 
 Aaron Burr arises in this country, the printers will speak, 
 and they ought to speak; the purest motives will com- 
 mand them to speak. If there have been publications 
 against Colonel Burr, innumerable communications have 
 also appeared in his favor; and if the publications against 
 him have contained the severest strictures, they have 
 resulted from his own character and conduct ; and he has 
 no right to complain. 
 
 He stands on the fairest ground which his conduct and 
 character can reach. But if in truth prejudices have 
 been improperly excited against him, why does he wish 
 to close the only door to his own vindication, by exclud- 
 ing the evidence ? His counsel exclaim : " Send the 
 evidence to the grand jury." Surely, if Colonel Burr 
 wishes to have the evidence before the jury, he should 
 be much more anxious to have it before the court. The 
 jury will have one side of the evidence only before them ; 
 and that will be completely against himself. Both, how- 
 ever, will go before the court. Why, then, does he 
 shrink from the evidence? If an unjust prejudice assails 
 him, the light of truth and evidence will dissipate it. 
 Why does he shrink ? 
 
 The gentlemen on the other side, continued Mr. Hay, 
 do not do us justice. They charge us with persecution 
 and oppression. Sir, I never contemplated or wished to 
 hurt Aaron Burr. I scorn it. I look not to him. I 
 look only to the duties which I am solemnly bound to 
 perform. One remark more, sir, and I have done : 
 Gentlemen on the other side, insist upon the insuffi- 
 ciency of our evidence ; because we have withheld our 
 indictments from the grand jury, they have hastily in- 
 ferred, that we feel our evidence to be too feeble to sAjsi;B 
 the jury. They are mistaken, sir. I assure themthaB }A} \\ 
 are mistaken. I conscientiously believe, that we have 
 evidence enough, even throwing out the depositions 
 themselves, to satisfy the grand jury of the guilt of Aaron
 
 ARGUMENT. 39 
 
 Burr. But, sir, puerile indeed would it be for us, under 
 the present state of things, to submit our case before the 
 grand jury, on the evidence before us, when we are every 
 moment expecting better. 
 
 Mr. Edmund Randolph addressed the court to the fol- 
 lowing effect : 
 
 Sir, it would have been impossible for us, even had we 
 received due notice of this notion, to have availed our- 
 selves of the time that was allowed to us. That would 
 have been impossible, because the enormity of the 
 proposition itself, would have baffled all our consider- 
 ation, and all our researches. Mark the course, sir, 
 which has been pursued towards my unfortunate client. 
 First, he was was brought here under a military escort. 
 Then that little folio of depositions and affidavits, was 
 laid before your honor; then the charge of treason ; and 
 then that little cock-boat which was destined to attend 
 this great ship, on a foreign expedition. You heard it 
 all, sir, and what did you say? You bound Colonel 
 Burr to bail, simply on the charge of a misdemeanor, to 
 appear here at the opening of court ; but not contented 
 with this security, you superadded, that he was not to 
 leave the court until it had discharged him. You opened 
 the door, too, for an ulterior prosecution ; you declared 
 that if the attorney for the United States should obtain 
 any additional evidence, the judgment which you then 
 rendered, would not prevent his indicting Colonel Burr 
 on the charge of treason. 
 
 Sir, thus stands the case, as it was understood by 
 the whole universe. On Friday, we came here to meet 
 the whole world ; Friday, however, passes away, and 
 nothing is done. On Saturday, we came here again ; 
 Saturday, also, passes away, and nothing is done. But 
 on Sunday, sir (for it seems that day, which, to the gener- 
 ality of mankind, is a day of rest, is a day of activity to 
 some), is broached this new-fangled doctrine, which now 
 excites our astonishment. They demand precedents, 
 sir, for our conduct ; and who are they that require it? 
 Why, sir, they that take things out of the ordinary course 
 of the law. For thirty years, I have never seen such a 
 proceeding ; I have never read of such an one in the 
 English books ; and yet, these gentlemen call upon us 
 
 \
 
 40 TRIAL OF AARON BURR. 
 
 for precedents. If we were asked for our reasons, sir, we 
 should have enough to offer ; and first, a judge in the 
 federal court, sitting in the capacity which your honor 
 now fulfills, is in the same relation to the accused, as an 
 examining judge is in the state courts. But, sir, who 
 ever invited a single magistrate, or a state court to aug- 
 ment the bail of any individual in the situation of 
 Colonel Burr? If a man was bound, in a distant county, 
 to answer to misdemeanor, and another crime was to be 
 brought against him, to be predicated on the very same 
 evidence, have you, sir, ever known the trying court to 
 increase his bail ? There never was such an example, 
 sir. 
 
 Mr. Botts' remark, sir, is not to be answered. You 
 are changing the constitutional organ of justice. You 
 are completely blotting out the functions of a grand 
 jury. The witnesses will be all produced before you ; 
 but no, improper as this proceeding will be, it is still less 
 so, than that which they will actually pursue. None of 
 the United States' witnesses will be brought before you, 
 but those whom they may think it politic to introduce ; 
 and depend upon it, that such testimony will be garbled 
 for the ears of this court, as may be expected to bias 
 their judgment. Well, sir, and what will be the conse- 
 quence ? When the grand jury are about to retire to 
 their own chamber, they will be told that you have de- 
 manded additional bail. Are you then, sir, to be a 
 pioneer of blood for the grand jury? Is not this 
 precedent outrageous, sir? The boasted principle, that 
 no man is to be condemned but upon the verdict of 
 twenty-four of his peers, is gone. Throughout this town, 
 it will be universally reported, that you have solemnly 
 declared Aaron Burr to be guilty of high treason against 
 the United States; and some of those to whom the 
 rumor may extend, may hereafter be impaneled on the 
 petit jury. And will they feel themselves altogether 
 unbiassed by your judgment? Why, sir, let it be de- 
 clared at once, that the grand jury is to be struck out 
 as an intermediate organ of justice. 
 
 Do not, I pray you, sir, let us suffer for the delays and 
 negligence of other people. I can not blame the United 
 States' attorney. It is his business to obey the instruc-
 
 ARGUMENT. 41 
 
 tions of the government ; and if the witnesses are not 
 here, it is certainly no fault of his ; but surely there is 
 time enough to travel from New Orleans to this city in 
 seventeen days ; even with the gigantic " bulk " of 
 General Wilkinson himself. 
 
 Mr. Hay says our tone is changed. And how, sir? 
 We demand a trial now. We demand a fair trial. But 
 must we not, therefore, protest against a measure, which 
 is calculated to defeat this object? Certainly, sir. You 
 are called upon to prejudice the minds of the grand 
 jury. But, sir, in this interesting case, where liberty and 
 life themselves are endangered, i trust that some hard- 
 mouthed precedents, from old black-letter books, will be 
 found in opposition to this procedure. We have come 
 here to answer to every charge which may be urged 
 against us ; we come here to answer in a precedented 
 and constitutional manner ; but little did we expect that 
 the court would decide in the first instance, instead of 
 the grand jury ; that the sentiments of the grand jury 
 were to be prejudicated by an unconstitutional decision; 
 and that the court itself was to commit its opinion on 
 certain points, which would be regularly brought before 
 them for argument and for decision at some of the 
 ulterior stages of the prosecution. " Why," said Mr. 
 Wirt, "do you shrink?" Sir, trace the course of the 
 prosecution, and see who it is that retires from the con- 
 test. On Friday the United States' attorney was not 
 ready; on Saturday, he was not ready; and now, indeed, 
 he we will not probably be ready before Monday next. 
 Sir, who is it that shrinks? and yet does the attorney 
 positively aver, that he has evidence enough ! 
 
 We are charged, sir, with addressing the multitude. 
 Mr. Wirt says that he could, but would not imitate the 
 example ; but neither he nor Mr. Hay hath spared the 
 theme. -Sir, I will not deny the justness of his eulogiums 
 upon the administration ; but permit me only to remark, 
 that there has been a certain conduct observed towards 
 Colonel Burr which excites my deepest astonishment. 
 When I look at the first man in the government, I be- 
 hold an individual whom I have long known, and whose 
 public services have commanded my admiration. When 
 I look at the second, sir, he has my whole heart. But,
 
 42 TRIAL OF AARON BURR. 
 
 sir, the inquiry which is now before us relates not so 
 much to the intention as to the effect. An order has 
 been given to treat Colonel Burr as an outlaw, and to 
 I burn and destroy him and his property. And, sir, again: 
 when the house of representatives demanded certain in- 
 formation, as it was their right and their duty to do, the 
 president granted it, and would to God, sir, that he had 
 stopped here, as an executive officer ought to have done. 
 He proceeded, however, to say that Colonel Burr was 
 guilty of a crime, and consequently to express an opinion, 
 which was calculated to operate judically upon the 
 judges and the juries. Such was the substratum of all 
 the censures which have been heaped upon Colonel 
 Burr. 
 
 Mr. Randolph proceeded to touch upon a subject to 
 which Mr. Hay had referred. Colonel Burr was arrested 
 in the Mississippi Territory. Was there no court there? 
 was there no judge of integrity to try him ? arrested too 
 after he had been acquitted by a grand jury ! Well ! 
 he was transported thence (with humanity it has been 
 said), dragged on by eight musketeers, who were ready 
 to shoot him at a moment's warning; refused any appeal 
 to the judicial authority; denied even the melancholy 
 satisfaction of writing to his only child. Was all this 
 humanity? Dragged before this court, which derives its 
 only jurisdiction from a little speck of land on the Ohio. 
 Yes, sir; but for that little spot of an island, Virginia 
 never would have enjoyed this honor ! What is all this, 
 sir, but oppressive and bitter inhumanity? I trust, sir, 
 from what I have said, that no one will think with Mr. 
 Wirt, that I am shifting the question from Colonel Burr 
 to Mr. Jefferson. I should not have made the obser- 
 vations which have escaped me, but to show that my 
 client is justified 'by his situation in stating every objec- 
 tion that he can to the present measure. . 
 
 Mr. Randolph observed that at least one disadvantage 
 would result from this inquiry; that it was not clear, as 
 Mr. Hay had asserted, that the affidavits would be laid 
 before the court only, and not before the grand and petit 
 juries, for the grand jury would soon be possessed of the 
 substance of them, and that it was next to imposible for 
 them to separate the impressions thus illegally to be pro-
 
 ARG UMENT. 43 
 
 duced on their minds, from the weight of the legal viva 
 voce testimony. 
 
 Mr. Randolph said that he did not understand Mr. 
 Hay's expressions about certain persons in holes and 
 corners ; that if, however, he meant spies, there were none 
 such employed by Colonel Burr ; but, although the govern- 
 ment certainly had employed no spies, yet it has excited 
 so much prejudice against Colonel Burr, that it was suf- 
 ficient to make every man in the country desirous of 
 contributing his full quota of information against him. 
 Mr. Randolph concluded with remarking, that the 
 present argument had perhaps been permitted to em- 
 brace too wide a field of discussion, and that there were 
 two great questions which he should submit to the con- 
 sideration of the court: 1st, Whether there were any 
 precedents in favor of the present motion ? and 2d, If a 
 proposition like this, and of such great importance, was 
 adopted without any precedent to support it, whether it 
 would not expose every man in the country to the danger 
 of oppression ? 
 
 Mr. Randolph contended that this was a charge which 
 the judge had already decided, on a former examination ; 
 that it was not a supplemental crime, but the old one ; 
 that, perhaps, there might be some little affidavit to 
 splice out some defect in the former evidence ; but what 
 would be the consequence of this proceeding? Day 
 after day, another and another affidavit would be 
 brought forth. Facts, like polypi, are easily cut into 
 two or three pieces, each of which may be made to form 
 a new and entire body, and each of those atoms is to 
 require a new recognizance. For one affidavit there 
 must be a bail of 1,000 dollars: another affidavit, another 
 1,000 dollars : until the burden of bail is so oppressive as 
 to leave no other resource but in the four walls of a prison. 
 
 Mr. Hay observed that he should simply notice one 
 remark of Mr. Randolph's. That gentleman had used 
 the expression of " pioneer of blood ; " but surely it 
 would not have escaped him, had he but for one moment 
 seriously reflected upon the court whom he addressed, 
 upon the counsel he opposed, or the government. Satis- 
 fied of this, Mr. Hay said he should pass the observation 
 by without further notice.
 
 44 TRIAL OF AARON BURR. 
 
 Mr. Randolph had stated that no similar case had oc- 
 curred in his thirty years' practice. It was not won- 
 derful that such a case had not occurred in the time 
 when that gentleman was attorney for the common- 
 wealth. A great change has taken place in the system 
 of our government. At that time no federal court ex- 
 isted. The mode of proceeding in the state courts is 
 different from that here. In the system of penal law 
 established in the commonwealth of Virginia, there is an 
 examining court, intervening between the arrest and 
 commitment of a prisoner, and his being charged before 
 the grand jury ; but this court has the power to examine 
 as well as to commit. Moreover, the United States are 
 a most extensive country, compared to that of Virginia; 
 a most material .witness may now be 1,500 miles from 
 the court before which he is to appear ; and may be at 
 the same time at the head of an army ; in all which cir- 
 cumstances, the federal and the state sovereignties are 
 different. So that this difference altogether defeats the 
 application of Mr. Randolph's experience to this subject^ 
 even if that experience had been admitted as a good 
 authority in the state courts. But even that gentleman 
 would admit, that had a similar case occurred before the 
 state courts, the accused would have been committed. 
 Mr. Randolph asserts that this motion is made to draw 
 forth the opinion of the court, and thus to prejudicate 
 the minds of the grand jury. But Mr. Randolph has 
 certainly forgotten that this intelligent and impartial 
 jury are on their oaths and their consciences ; and surely 
 this court will not pay so little compliment to their 
 independence, as to admit that its own opinion will be 
 sufficient to bias their judgment; more particularly, too, 
 when the point before the court is so different from that 
 before the jury. It is the business of the court to com- 
 mit, and of the jury to indict; and it is certainly the 
 privilege of the court to decide upon written testimony, 
 although that point may not be perfectly established 
 and settled as it relates to the grand jury. How the 
 court would decide upon this point, Mr. Hay said, he 
 could not pretend to know. There is another consider- 
 ation, which should be weighed by the opposite counsel. 
 The grand jury is now already embodied. They are
 
 ARGUMENT. 45 
 
 ready to proceed with any business which may be 
 brought before them ; but my great object, said Mr. Hay, 
 is to prosecute Colonel Burr on the charge of treason. 
 I make this declaration, because I believe him to have 
 been guilty of it. Let us suppose, however, that the 
 grand jury were to discharge Colonel Burr from the mis- 
 demeanor; and then that I were to bring the present 
 motion before the court, what resource then would Mr. 
 Randolph have ? From the present proceeding, how- 
 ever, Mr. Burr would derive the advantage of an imme- 
 diate trial ; whereas, according to the other mode of 
 proceeding, weeks and months might escape before he 
 would be brought to trial ; and certainly it is, in every 
 point of view, more desirable, both for the government 
 and himself, to terminate this business at once, than to 
 impose upon us the necessity of moving for an adjourned 
 trial. 
 
 Mr. Randolph says, " We are ready; we were ready 
 on Friday ; we were ready on Saturday, &c." Sir, there 
 are two sorts of readiness : one in point of fact, and 
 one under certain circumstances. Now, these gentle- 
 men will scarcely persuade me that they could be ready 
 to resist the weight of evidence, if it were ready to be 
 laid before them ; but there is certainly no difficulty in 
 believing that they are now ready to proceed to trial, 
 when the whole evidence, and particularly General Wil- 
 kinson's, is not present. One more, remark : Mr. Ran- 
 dolph has expressed a reverence for Mr. Jefferson, which 
 is not certainly derived from trifling considerations. I 
 will make but one remark, and that gentleman will agree 
 with me in the opinion : Survey the many-peopled 
 globe, through all ages and nations, and you will not 
 find a man more anxiously bent upon promoting the 
 liberty of the people. This was certainly the idea which 
 Mr. Randolph intended to convey. Mr. Randolph next 
 proceeded to Mr. Madison, upon whom he has not hesi- 
 tated to lavish the most unreserved encomiums. Surely, 
 then, after this solemn declaration of the oldest counsel 
 for the prisoner, we shall hear no more about persecu- 
 tion. Sir,. it is a state of things, which it is impossible 
 to reconcile with the amiable character ascribed to the 
 first two officers in the government.
 
 46 TRIAL OF AARON BURR. 
 
 Mr. Peckhain observed that he should offer a few 
 remarks on the supplementary arguments of Mr. Hay. 
 That in this case Colonel Burr's counsel had called, they 
 had a right to call, for precedents; that Mr. Randolph, 
 who had so ably represented this commonwealth, as a 
 criminal prosecutor for many years, had never known a 
 single one to justify this motion ; that however true it 
 might be, that the state of Virginia was now of smaller 
 extent than the whole of the United States, yet it wa? 
 then cut up into as small judicial districts as the United 
 States at present are, and that the witnesses in a crimi- 
 nal prosecution might have been scattered over those 
 districts, as they are said to be in the present circum- 
 stances ; that Mr. Randolph had represented not one of 
 those districts, but the whole ; not only on this side 
 of the mountains, but beyond them ; and even the un- 
 cultivated region of Kentucky, where traveling was at 
 that time liable to so many difficulties, and from which 
 it was so extremely laborious to transport the witnesses 
 to this side of the mountains; that it was not until Ken- 
 tucky had been more thickly populated, that a particular 
 court had been established there. And what is the case 
 in England and her dependencies ? Certainly that island 
 is not equally extensive with the United States ; but her 
 subjects may, at all events, be scattered over the world. 
 Why, then, is there no precedent in that country ? Is it 
 not probable that a man might happen to be as far from 
 the court of king's bench, as General Wilkinson is from 
 this court ? and yet there is no precedent to justify this 
 motion. What is the crime ? Is it of so little impor- 
 tance that this court, upon the production of every little 
 affidavit, should consent to hear new motions for a com- 
 mitment ? This crime is treason ! it is " a levying ot 
 war" against the United States ! and where is the proot 
 of it ? where were Colonel Burr's forces ? was his army 
 like that of Bayes, kept in disguise? Wilkinson's testi- 
 mony can not establish this fact ; for it is the opinion of the 
 chief justice, that his affidavit does not at all bear upon 
 this subject ; and yet two months have since elapsed, 
 and no testimony has been collected. Wilkinson's depo- 
 sition contains an improbable, mysterious tale, about a 
 key and cypher. Mr. Wickham said that he would not
 
 AR G UMENT. 47 
 
 at present expose this transaction ; but does this myster- 
 ious tale constitute treason? " You, sir, have already 
 decided that there is no treason in Wilkinson's deposi- 
 tion ; but were the man himself in court, what could he 
 establish further than his deposition can do?" Mr. Hay 
 is satisfied that he has sufficient evidence to convict 
 Colonel Burr. No man doubts his ability, or his inclina- 
 tion to discharge his duty. Why, then, does he not lay 
 his indictments before the jury? Because there happens 
 to be a man in New Orleans, and one, perhaps, in the 
 Eas-t Indies; and therefore, "to make assurance double 
 sure," he must wait for their appearance ; and all this, 
 too, whilst the gentleman most seriously protests against 
 oppression and delay. Though the gentleman may not 
 be conscious of such a sentiment, as that of wishing to 
 oppress Colonel Burr, there must still be something like it 
 in his heart: but whatever the motive may be, the result 
 to ourselves is the same. It produces delay, and all its 
 consequent oppressions. No court should sanction this 
 proceeding. This case is like that of a man whose cause 
 stands for trial. When subpoenas after subpoenas have 
 been issued ; when sums after sums have been expended ; 
 he moves for a continuance of his suit, and at the very 
 same time, he insists upon the sufficiency of his evi- 
 dence. Surely the court would rule him to trial. Why 
 is not the attorney for the United States ready for trial ? 
 He has, indeed, made a computation of time to show that 
 Wilkinson could not have been here before this period ; 
 and he has besides introduced an affidavit to show that 
 an express was on his way to New Orleans, to give him an 
 early summons. There is, however, nothing in proof 
 that the drawer of this affidavit was not imposed on by 
 this express ; or that the express himself was not mis- 
 taken, as to the contents of his dispatches. And how 
 stands the computation of time ? The post goes from 
 Washington to New Orleans in seventeen days. Mr. 
 Rodney left this city in the last of March. The express 
 must, therefore, have reached New Orleans about the 
 2Oth of April; and yet, where is Wilkinson? Though 
 the Mississippi runs down to New Orleans, and opposes 
 a strong current to those who ascend it, yet it is surely a 
 reasonable proposition, that on land it requires no longer
 
 48 TRIAL OF AARON BURR. 
 
 time to come than to go, and yet General Wilkinson is 
 not here! 
 
 Mr. Hay says it is of no consequence whether the 
 grand jury is present or not. But is this consonant with 
 the sound principles of law? Is it constitutional, sir, 
 where there is a particular body set apart for the investi- 
 gation of facts, for the court to step in and rudely take 
 this power from them ? He says that perhaps he shall 
 not send up his biljs before the present grand jury. But 
 I trust in God, sir, that this determination will be over- 
 ruled by the court; and that if this prosecution is ever 
 to be closed, we may see the curtain dropped upon it 
 now and forever! If, sir, the counsel for the prosecu- 
 tion obtain a postponement of this trial, and for want of 
 evidence on their part, we might probably contend, that 
 Colonel Burr, if bound to bail at all, should be held in a 
 smaller recognizance than at present. But we shall 
 waive this right. It is not our wish to discharge the 
 grand jury, but to set this question at rest forever. 
 
 We have said that we were ready for trial. We are so, 
 sir, in fact, as well as in the abstract. The prosecutors 
 say that we do not believe them to be ready : but how 
 can the gentleman suppose that we mean to pay so poor 
 a compliment to his veracity, as to believe that he acts 
 upon his own facts, as if he himself did not believe 
 them to be true? 
 
 The gentleman, sir, has warmly eulogized the present 
 administration. As a private citizen, sir, no man has 
 less to say with the politics of this country than myself. 
 That gentleman has drawn a picture of our national pros- 
 perity ; and I am happy to hope that it is true to life in 
 everything, one feature only excepted. What, how- 
 ever, will he say of the persecution of my client ? Sir, 
 let that gentleman draw the most animated picture of 
 our happiness, which his imagination can supply; let.it 
 be howsoever cheering, or howsoever just, it will be 
 but little alleviation to the wounds of my persecuted 
 client, that he is the only man in the nation whose rights 
 are not secure from violation. 
 
 Mr. Burr then rose and addressed the court. 
 
 I am not, I hope, sir, wasting the time of the court 
 upon the present occasion. The motion proposed, is
 
 
 ARGUMENT. 49 
 
 admitted on all hands to be important ; and it is cer- 
 tainly a new one. Perhaps it was to have been ex- 
 pected, that on a point so novel, some precedents would 
 have been produced ; but, in this expectation we have 
 been disappointed. Its novelty will, however, be produc- ' 
 tive of another effect. It will still better qualify it for 
 making another small feature in a picture of oppressions 
 and grievances, which have never been paralleled in 
 the records of criminal law. 
 
 The case is this : no man denies the authority of the 
 court to commit for a crime ; but no commitment ought 
 to be made, except on probable cause. This authority 
 is necessary ; because policy requires that there should 
 be some power to bind an accused individual for his per- 
 sonal appearance, until there shall have been sufficient 
 time to obtain witnesses for his trial ; but this power 
 ought to be controlled as much as possible. 
 
 The question in the present case is, whether there is 
 probable cause of guilt : and whether time ought to be 
 allowed to collect testimony against me ? This time 
 ought generally to be limited ; but there is no precise 
 standard on the subject ; and much is of course left to 
 the sound discretion of the court. Two months ago, 
 however, you declared that there had been time enough 
 to collect the evidence necessary to commit on probable 
 cause ; and surely, if this argument was good then, it is 
 still better now. 
 
 As soon as a prosecutor has notice of a crime, he gen- 
 erally looks out for witnesses. It is his object to obtain 
 probable cause for committing the accused. Five 
 months ago, a high authority declared that there was a 
 crime ; that I was at the head of it ; and it mentioned 
 the very place, too, where the crime was in a state of 
 preparation. The principal witness against me, is said to 
 be Mr. Wilkinson. Now, from what period is the time 
 to be computed ? If from the time I was suspected, 
 five months ; if from the time when I was siezed, three 
 months ; or is it to be only computed from the time 
 when I was committed ? So that it is near forty days 
 since the notice must have arrived at New Orleans. 
 But a vessel navigates the coast, from New Orleans to 
 Norfolk, in three weeks. I contend, however that wit- 
 
 I. 4
 
 50 TRIAL OF AARON BURR. 
 
 nesses ought to be procured, from the very time when 
 the crimes are said to be committed. There is, then, 
 no apology for the delay of the prosecution, as far as 
 it respects the only person for whom an apology is 
 attempted to be made. 
 
 There are other serious objections to my situation. 
 Must I be ready to proceed to trial? True, sir, but then 
 it must be in their own way. Are we then on equal 
 terms here ? Certainly not. And again, as to affidavits. 
 The United States can have compulsory process to ob- 
 tain them ; but I have no such advantage. An ex parte 
 evidence, then, is brought before this court, on a motion 
 for commitment. The evidence on one side only is ex- 
 hibited ;- but if I had mine also to adduce, it would 
 probably contradict and counteract the evidence of the 
 United States. Well, sir, and these affidavits are put 
 into the newspapers, and they fall into the hands of the 
 grand jury. I have no such means as these, sir; and 
 where, then, is the equality between the government 
 and myself. 
 
 The opinion of the court, too, is to be committed 
 against me. Is this no evil? 
 
 A sufficient answer, sir, has been given to the argument 
 about my delay ; and its disadvantages to myself have 
 been ably developed. But my counsel have been charged 
 with declamation against the government of the United 
 States. I certainly, sir, shall not be charged with 
 declamation ; but surely it is an established principle, 
 sir, that no government is so high as to be beyond the 
 reach of criticism ; and it is more particularly laid down, 
 that this vigilance is more peculiarly necessary, when 
 any government institutes a prosecution ; and one reason 
 is, on account of the vast disproportion of means which 
 exist between it and the accused. But, if ever there was 
 a case which justified this vigilance, it is certainly the 
 present one, when the government has displayed such 
 uncommon activity. If, then, this government has been 
 so peculiarly active against me, it is not improper to 
 make the assertion here for the purpose of increasing 
 the circumspection of the court. 
 
 Mr. Burr observed that he meant by persecution, the 
 harassing of any individual, contrary to the forms of
 
 ARGUMENT. 51 
 
 law ; and that his case, unfortunately, presented too 
 many instances of this description. He would merely 
 state a few of them. He said that his friends had been 
 every where seized by the military authority ; a practice 
 truly consonant with European despotisms. He said 
 that persons had been dragged by compulsory process 
 before particular tribunals, and compelled to give testi- 
 mony against him. His papers, too, had been seized. 
 And yet, in England, where we say they know nothing 
 of liberty, a gentleman, who had been seized and de- 
 tained two hours, in a back parlor, had obtained dama- 
 ges to the amount of one thousand guineas. He said 
 that an order had been issued to kill him, as he was de- 
 scending the Mississippi, and seize his property. And 
 yet, they could only have killed his person, if he had 
 been formally condemned for treason. He said that 
 even post-offices had been broken open, and robbed of 
 his papers ; that, in the Mississippi Territory, even an 
 indictment was about to be laid against the postmaster ; 
 that he had always taken this for a felony ; but that 
 nothing seemed too extravagant to be forgiven by the 
 amiable morality of this government. All this, said Mr. 
 Burr, may only prove that my case is a solitary excep- 
 tion from the general rule. The government may be 
 tender, mild, and humane to everyone but me. If so, to 
 be sure, it is of little consequence to any body but myself. 
 But surely I may be excused if I complain a little of 
 such proceedings. Mr. Burr said there seemed to be 
 something mingled in those proceedings, which mani- 
 fested a more than usual inclination to attain the ends of 
 justice ; as far as it related to himself, perhaps, these 
 things were of no account ; but what was then to be said 
 of those and other measures, such as the suspension ot 
 the habeas corpus act, which concerned the whole nation ? 
 If in the island of Great Britain such a measure was cal- 
 culated to produce so much disturbance, what kind of 
 sensation ought it to produce in this country. 
 
 Our president, said Mr. Burr, is a lawyer, and a great 
 one too. He certainly ought to know what it is that 
 constitutes a war. Six months ago, he proclaimed that 
 there was a civil war. And yet, for six months have 
 they been hunting for it, and still can not find one spot
 
 52 TRIAL OF AARON BURR. 
 
 where it existed. There was, to be sure, a most terrible 
 war in the newspapers ; but nowhere else. When I 
 appeared before the grand jury in Kentucky, they had 
 no charge to bring against me, and I was consequently 
 dismissed. When I appeared for a second time, before 
 a grand jury, in the Mississippi Territory, there was 
 nothing to appear against me ; and the judge even told 
 the United States attorney that if he did not send up 
 his bill before the grand jury, he himself would proceed 
 to name as many witnesses as he could, and bring it 
 before the court. Still there was no proof of war. At 
 length, however, the Spaniards invaded our territory, 
 and yet there was no war. But, sir, if there was a war, 
 certainly no man can pretend to say that the government 
 is able to find it out. The scene to which they have 
 now hunted it, is only three hundred miles distant, and 
 still there is no evidence to prove this war. 
 
 Mr. Burr requested the court to consider the conse- 
 quence which would now result from a commitment for 
 treason ; that if he were bound now, the law of Virginia 
 declared that he should so remain until the next term ; 
 that this delay was the very inconvenience he would 
 wish to avoid ; and that he presumed he was to remain 
 in prison six months, until they could find out this war. 
 
 TUESDAY, MAY 26, 1807. 
 
 TJie following Opinion was delivered by the Chief Justice 
 
 of the United States, on Mr. Hays motion to commit 
 
 Colonel Burr. 
 
 In considering the question which was argued yester- 
 day, it appears to be necessary to decide : 
 
 1st. Whether the court, sitting as a court, possesses 
 the power to commit any person charged with an offense 
 against the United States. 
 
 2d. If this power be possessed, whether circumstances 
 exist in this case which ought to restrain its exercise. 
 
 The first point was not made in the argument, and 
 would, if decided against the attorney for the United 
 States, only change the mode of proceeding. If a doubt 
 can exist respecting it, that doubt arises from the omis-
 
 OPINION ON MOTION TO COMMIT. 53 
 
 sion in the laws of the United States to invest their 
 courts, sitting as courts, with the power in question. 
 It is expressly given to every justice and judge, but not 
 to a court. 
 
 This objection was not made on the part of Colonel 
 Burr, and is now mentioned, not because it is believed 
 to present any intrinsic difficulty, but to show that it has 
 been considered. 
 
 This power is necessarily exercised by courts in dis- 
 charge of their functions, and seems not to have been 
 expressly given ; because it is implied in the duties which 
 a court must perform, and the judical act contemplates 
 it in this light. They have cognizance of all crimes 
 against the United States; they are composed of the 
 persons who can commit for those crimes ; and it is ob- 
 viously understood, by the legislature, that the judges 
 may exercise collectively the power which they possess 
 individually, so far as is necessary to enable them to re- 
 tain a person charged with an offense in order to receive 
 the judgment which may finally be rendered in his case. 
 The court say this is obviously understood by the legis- 
 lature ; because there is no clause expressly giving to 
 the court the power to bail or to commit a person, who 
 appears in discharge of his recognizance, and against 
 whom the attorney for the United States does not choose 
 to proceed ; and yet the thirty-third section of the 
 judical act evinces a clear understanding in the legisla- 
 lature, that the power to take bail is in the possession of 
 the court. 
 
 If a person shall appear in conformity with his recog- 
 nizance, and the court passes away without taking any 
 order respecting him, he is discharged. A new recog- 
 nizance, therefore, or a commitment on the failure to 
 enter into one, is in the nature of an original commit- 
 ment, and this power has been uniformly exercised. 
 
 It is believed to be a correct position, that the power 
 to^commit for offenses of which it has cognizance, is ex- 
 ercised by every court of criminal jurisdiction, and that 
 courts as well as individual magistrates are conservators 
 of the peace. 
 
 Were it otherwise, the consequence would only be 
 Jhat it would become the duty of the judge to descend
 
 54 TRIAL OF AARON BURR. 
 
 from the bench, and, in his character as an individual 
 magistrate, to do that which the court is asked to do. 
 
 If the court possesses the power, it is certainly its duty 
 to hear the motion which has been made on the part of 
 the United States ; for, in cases of the character of that 
 under consideration, its duty and its power are coexten- 
 sive with each other. It was observed when the motion 
 was made, and the observation may now be repeated, 
 that the arguments urged on the part of the accused 
 rather prove the motion on the part of the United 
 States unnecessary, or that inconveniences may result 
 from it, than the want of a legal right to make it. 
 
 The first is, that the grand jury being now in session 
 ready to receive an indictment, the attorney for the 
 United States ought to proceed by bill instead of ap- 
 plying to the court, since the only purpose of a commit- 
 ment is to bring the accused before a grand jury. This 
 statement contains an intrinsic error which destroys its 
 operation. The commitment is not made for the sole 
 purpose of bringing the accused before a grand jury ; it 
 is made for the purpose of subjecting him personally to 
 the judgment of the law, and the grand jury is only the 
 first step towards that judgment. If, as has been argued, 
 the commitment was simply to detain the person until 
 a grand jury could be obtained, then its operation 
 would cease on the assembling of a grand jury; but 
 such is not the fact. The order of commitment retains 
 'its force while the jury is in session, and if the prosecutor 
 does not proceed, the court is accustomed to retain a 
 prisoner in confinement, or to renew his recognizance to 
 a subsequent term. 
 
 The arguments drawn from the general policy of our 
 laws ; from the attention which should be bestowed on 
 prosecutions, instituted by special order of the execu- 
 tive ; from the peculiar inconveniences and hardships of 
 this peculiar case ; from the improper effects which 
 inevitably result from this examination, are some of 
 them subjects for the consideration of those who make 
 the motion, rather than of the court ; and others go to 
 the circumspection with which the testimony in support 
 of the motion ought to be weighed, rather than to the 
 duty of hearing it.
 
 OPINION ON MOTION TO COMMIT. 55 
 
 It has been said that Colonel Burr already stands 
 charged with treason, and that, therefore, a motion to 
 commit him for the same offense is improper. But the 
 fact is not so understood by the court. The application 
 to charge him with treason was rejected by the judge 
 to whom it was made, because the testimony offered in 
 support of the charge did not furnish probable cause for 
 the opinion that the crime had been committed. After 
 this rejection, Colonel Burr stood, so far as respected his 
 legal liability to have the charge repeated, in precisely 
 the same situation as if it never had been made. He 
 appears in court now as if the crime of treason had never 
 before been alleged against him. That it has been alleged 
 that the government had had time to collect testimony for 
 the establishment of the fact that an immense crowd of 
 witnesses are attending for the purpose, that the prose- 
 cutor in his own judgment has testimony to support the 
 indictment, are circumstances which may have their in- 
 fluence on the motion for a commitment, or on a con- 
 tinuance, but which can not deprive the attorney for the 
 United States of the right to make his motion. If he 
 was about to send up a bill to the grand jury, he might 
 move that the person he designed to accuse, should be 
 ordered into custody, and it would be in the discretion 
 of the court to grant or to reject the motion. 
 
 The court perceives and regrets that the result of this 
 motion may be publications unfavorable to the justice, 
 and to the right decision of the case ; but if this conse- 
 quence is to be prevented, it must be by other means 
 than by refusing to hear the motion. No man, feeling a 
 correct sense of the importance which ought to be 
 attached by all to a fair and impartial administration of 
 justice, especially in criminal prosecutions, can view 
 without extreme solicitude, any attempt which may be 
 made to prejudice the public judgment, and to try any 
 person, not by the laws of his country and the testimony 
 exhibited against him, but by public feelings, which may 
 be, and often are, artifically excited against the innocent, 
 as well as the guilty. But the remedy, for a practice 
 not less dangerous than it is criminal, is not to be 
 obtained by suppressing motions, which either party may 
 have a legal right to make.
 
 56 TRIAL OF AARON BURR. 
 
 If it is the choice of the prosecutor on the part of the 
 United States to proceed with this motion, it is the 
 opinion of the court that he may open his testimony. 
 
 Mr. Hay then rose, and observed that he was struck 
 with the observations of the court relative to " publica- 
 tions." and he would attempt, if possible, to make some 
 arrangements with the counsel on the other side to 
 obviate that inconvenience ; and he understood they 
 were to do the same. 
 
 The counsel on both sides then retired by permission 
 of the court for this purpose. They returned in a short 
 time ; and Mr. Hay informed the court that the counsel 
 for the. United States, and for Mr. Burr, not having yet 
 been able to agree upon any arrangement which would 
 attain his object, namely, that of having Mr. Burr recog- 
 nized in a sum sufficiently large to insure his appearance 
 to answer the charge of high treason against the United 
 States, without incurring the inconvenience resulting 
 from a public disclosure of the evidence at this early 
 stage of the proceedings, wished to have further time for 
 that desirable purpose. This was granted by the court, 
 and it then adjourned till next day. 
 
 WEDNESDAY, MAY 27, 1807. 
 
 Mr. Hay informed the court that all hopes of the 
 arrangement which he had mentioned yesterday were at 
 an end : for he had received a letter from Mr. Burr's 
 counsel, positively refusing to give additional bail. 
 He therefore deemed it his duty to go on with the 
 examination of the witnesses in support of his motion to 
 commit Mr. Burr. He observed that he regretted 
 extremely that it became necessary in his judgment to 
 pursue this course. He felt the full force of the objec- 
 tions to a disclosure of the evidence, and to the neces- 
 sity of the court's declaring its opinion before the case 
 was- laid before a jury ; but those considerations must 
 yield to a sense of what his engagements to the United 
 States imperiously demanded of him : that in adducing 
 the evidence, he should observe something like chrono- 
 logical order. He should first read the depositions of 
 the witnesses who were absent, and afterwards bring for-
 
 ARGUMENT OF MR. HAY, 57 
 
 ward those who were present, so as to disclose all the 
 events as they successively happened. 
 
 Mr. Wickham stated that there were two distinct 
 charges against Mr. Burr. The first was for a misde- 
 meanor, for which he had already entered into recogni- 
 zance ; the second was a charge of high treason against 
 the United States, which was once proposed without 
 success, and is now again repeated. On this charge the 
 United States must substantiate two essential points: 
 1st. That there was an overt act committed ; and 2d. 
 That Colonel Burr was concerned in it. Everything 
 that does not bear upon these points is of course inad- 
 missible ; the course therefore laid down by the attorney 
 for the United States is obviously improper. He pro- 
 poses to examine his witnesses in a kind of chronolo- 
 gical order. 
 
 Mr. Burr requires that the evidence should be taken 
 in strict legal order. The court and even the opposite 
 counsel will see the propriety of observing this order. 
 If the attorney for the United States has affidavits to 
 produce, let him first demonstrate that they have a 
 right to produce them. We first call upon him to prove, 
 by strict legal evidence, that an overt act of treason has 
 been committed. If he can not establish that one point, 
 all the evidence which he can ptoduce, is nugatory and 
 unavailing. 
 
 Mr. Hay had no doubt that the gentleman would, if 
 he could, suppress all the evidence ; that although that 
 gentleman had been so good as to prescribe for him the 
 course he ought to pursue, he should still pursue his 
 own course ; and he would assure that gentleman that 
 he was almost the last person in the world whose advice 
 on the present occasion he would pursue. Mr. Hay 
 observed that he could not consent to such a separation 
 of the evidence as that gentleman required ; that he 
 should lay all his evidence before the court, and that the 
 court must separate for themselves. 
 
 The two charges which are brought against Aaron 
 Burr are naturally and intimately blended. They form 
 distinct parts of one great design. What that great 
 design was in all its bearings and ramifications, I am not 
 absolutely certain ; but I have always conceived, that
 
 5 8 TRIAL OF AARON BURR. 
 
 before Mexico was invaded, New Orleans was to be 
 taken. How, then, is it possible to separate these two 
 great allegations? This monstrous design consists of 
 two great plots ; both going on together ; and both so 
 strongly connected, that accomplishing the one is pre- 
 paratory to accomplishing the other. If Aaron Burr's 
 object was to plant his standard in Mexico, he was first 
 to have seized the shipping and banks of New Orleans. 
 We ask, then, how can we separate line by line, and 
 word by word, the evidence produced to prove these 
 two distinct allegations? The designs are connected, 
 and the evidence is connected. 
 
 Mr. Burr rose to speak, when Mr. Hay proceeded to 
 the following effect : I have a little more yet to say. If, 
 sir, exceptions are thus to be continually taken to the 
 most common measures ; if in this way every inch of 
 ground is to be disputed, contrary to every practice that 
 has prevailed in our country ; instead of ten hours, or 
 ten days, this trial will take up ten years. What an 
 extraordinary proceeding is this, sir ! Why, sir, we are 
 not to steer our course even five inches without encount- 
 ering some unusual difficulty or other ! and yet these 
 gentlemen talk of precedents. And where, sir, are pre- 
 cedents for this, that the counsel before an examining 
 court is to be instructed how to bring out his evidence? 
 I never saw such a thing done before ; such a thing 
 ought not to be done. It is novel in itself, it is impos- 
 sible to be supported. Gentlemen, may make motions 
 as they please ; but they will not drive me from my pur- 
 pose. I will or I will not produce my evidence, whether 
 it pleases them or not. And, sir, it is a poor compliment 
 indeed that these gentlemen offer to the bench whom 
 they address ! If a deposition states anything,' or a 
 witness says anything which is irrevelant to the case, 
 can not the court be trusted with these distinctions? 
 Can not they decide whether this evidence is to be 
 weighed, or that to be rejected ? Do they distrust the 
 judgment of the court ? No, sir, they do not ; but they 
 wish to hamper us with every trifling difficulty which 
 they can throw into our path. The present, sir, is a most 
 serious allegation. It affects the life and character of 
 the accused. He has come forward with assertions cf
 
 ARGUMENT OF MR. WICK HAM. 59 
 
 his own innocence ; and he charges us with persecution. 
 But, sir, does it evince any consciousness of innocence, 
 thus to be going against every precedent established in 
 this or any other country ? Sir, I trust that the court 
 will go on in spite of all opposition. 
 
 Mr. Wickkam stated that having taken the liberty of 
 suggesting this course of proceeding, he should advance 
 a few observations on it ; and he did this the more 
 readily, because it had been insinuated that no man, 
 standing like himself as a professional man, would have 
 made a motion of this sort. [Mr. Hay declared he had 
 said no such thing.] Mr. Wickham said he had rights as 
 counsel for his client, and he had rights belonging to 
 himself. No man is heard for himself; but so long as 
 they employed professional men to defend them, these 
 had a right to pursue the best course they could devise 
 for the benefit of their client. He would therefore go 
 on. 
 
 Mr. Hay speaks of two distinct charges; the invasion 
 of Mexico, and the seizing of New Orleans : but he 
 declares them to be necessarily blended. How so ? 
 Could not a man " levy war " against the United States 
 without an invasion of Mexico? In Pennsylvania we 
 have seen an insurrection against the United States, but 
 no invasion of Mexico. Much is said of the loss of 
 time, and of certain difficulties thrown in the way of the 
 prosecution. 
 
 As to the first, sir, let the world decide whether he or 
 we have most pleaded for delay ; at all events, we can 
 not entertain any fear that this court will be impatient. 
 As to the difficulties in their way, we will say this : let 
 the gentlemen pursue a regular course ; let them bring 
 this business before the grand jury, and we shall make 
 no objections. But, sir, if they pursue this course over 
 and over again ; if they are continually throwing diffi- 
 culties in our way ; we Shall mete out to them the same 
 measure which they mete to us. Who has ever known 
 a proceeding like the present ? Who has ever heard of 
 the practice of coming out at such a stage as this with a 
 distinct substantive charge, not growing out of the evi- 
 dence before the court, but from other sources ! Surely 
 these gentlemen do not cry out for mercy : they stand
 
 60 TRIAL OF AARON BURR. 
 
 upon the law ; and law they shall have. Gentlemen 
 -say that no such exception as this was ever taken before 
 an examining magistrate. But, sir, where are the re- 
 porters that attend private magistrates, to record their 
 precedents ? Magistrates are to go by law ; and what 
 law? They must observe the rules of evidence. Would 
 gentlemen introduce their witnesses without swearing 
 them ? But the court must have all the evidence before 
 them; and they "must separate " the good from the 
 bad: but is this consistent with common sense; is it 
 consistent with the books ? The practice has always 
 been, when an attorney introduces a writing into court, 
 for the court to ask what he is to prove by it ; when he 
 introduces a paper, to show the general contents of that 
 paper. This was the practice on the memorable trials 
 of Hardy and Tooke in England. In chancery business, 
 indeed, a practice has crept in for the judge himself to 
 read the papers without knowing anything of their gen- 
 eral contents ; but this is done merely for the sake of 
 convenience, and will not certainly apply to criminal 
 prosecution. 
 
 It is asked, "Are we afraid to trust the court" with 
 this evidence ? No, sir, we are afraid to trust the court 
 with nothing ; but we do fear to prejudicate the mind 
 of the grand jury, by this premature and illegal ex- 
 hibition of evidence. Let the time come, when Colonel 
 Burr is to come regularly before the jury, and we shall 
 then see who shrinks from the testimony. A number of 
 other remarks have been made, sir, about Colonel Burr's 
 apprehensions. All propriety and decorum have been 
 set at naught ; every idle tale which is set afloat has 
 been eagerly caught at. The people here are interested 
 by them ; and they circulate all over the country. Sir, 
 if the attorney for the United States shall choose to 
 send up his bills before the grand jury, then I hope the 
 whole evidence will be laid before the world, and we 
 shall hear no more of rumors and prejudices. 
 
 These gentlemen say : " Shall you pretend to order 
 us ; shall you dictate ?" No, sir, the law must dictate. 
 The gentlemen, indeed, have produced a series of irrele- 
 vant writings and papers ; and they must, forsooth, 
 pursue a chronological order. No, sir, away with such
 
 EVIDENCE AS TO OVERT ACTS. 6r 
 
 informalities. Let gentlemen prove an assemblage of 
 men of war. Let them prove the overt act. If they do 
 not, I confidently hope that Colonel Burr will be dis- 
 charged. Mr. Wickham here read a quotation from 
 Foster's Discourses on High Treason. 
 
 Mr. Burr did not expect an opinion of the court, since 
 no motion had been made. Mr. Wickham had only 
 given notice to the opposite side that they should fol- 
 low the strictest rules of law. If it was for a suit of io 
 only, he should ask for the laws of evidence. 
 
 The chief justice said it would certainly be better, if 
 evidence was produced, to prove the facts first, and the 
 evidence to show their coloring ; for no evidence cer- 
 tainly has any bearing upon the present case, unless the 
 overt act be proved. However, if the attorney for the 
 United States thinks the chronological order the best, 
 he may pursue his own course; but the court trusts to 
 him, that he will produce nothing which does not bear 
 upon the case. 
 
 Mr.' Wirt. We coincide with the opinion of the court 
 that an overt act ought to be proved, and that we ought 
 to produce no evidence at all, unless we had enough to 
 prove the overt act. We do believe that we have suf- 
 ficient evidence for this purpose ; but we think it best to 
 pursue something like a chronological order, to take this 
 conspiracy in its germ, to go on step by step, and to 
 trace out every event as it subsequently arose. 
 
 Mr. Hay observed that it would be necessary to give 
 evidence to show the temper of the mind of the accused ; 
 as, for instance, Mr. Stoddert would show his hostility to 
 the administration, and even to the government. To 
 show this disposition of mind might lead to treasonable 
 designs, to plans, and thence to overt acts. This was 
 the natural order of things, and of the evidence. He 
 hoped that in drawing out this evidence, the court would 
 rely upon his candor and humanity, that he would pro- 
 duce none which he did not believe to bear upon the 
 fact. 
 
 Mr. Randolph said that however he might respect 
 that gentleman's humanity, he knew too well the temper 
 cf any prosecution to expect much from it. They 
 y.icr for strict law, and so are we. In England, before
 
 62 TRIAL OF AARON BURR. 
 
 a witness is heard, it must be stated in general terms 
 what he intends to prove. The same practice ought 
 to prevail here. Let the attorney for the United States 
 state the substance of each part of the testimony he 
 is to produce, and the court will then perceive whether 
 it is calculated to bear upon the case itself, or whether 
 it is only intended to inflame the public prejudice 
 against Colonel Burr. We demand that the overt 
 act be first proved ; without that, the accessorial evi- 
 dence is of no kind of use. Let that be established, 
 and the accessory facts will then have their weight. I 
 hope, sir, if the attorney for the United States does not 
 introduce his evidence on that point, we shall be at 
 liberty to suppress all the irrelevant testimony. 
 
 Mr. Botts said he should leave it to the court. 
 
 Mr. Hay. Agreed. 
 
 The chief justice decided that the attorney for the 
 United States might pursue whatever course he thought 
 best. 
 
 Mr. Botts. Send us the written testimony before you 
 submit it to the court. 
 
 Mr. Hay. As I said before, I shall take up the depo- 
 sitions first, and then the viva voce testimony in 
 chronological o'rder. I shall first introduce General 
 Wilkinson's deposition. 
 
 Some desultory conversation then ensued between 
 Mr. Hay and Mr. Botts, on the latter demanding the 
 liberty of examining the deposition. At length, Mr. 
 Hay handed the paper to him. Mr. Botts then addressed 
 the court. 
 
 Mr. Botts. In my objections to General Wilkinson's 
 affidavit, I may be compelled to question the correctness 
 of principles, in favor of which the court has expressed 
 an impression. It has been our misfortune to have been 
 drawn out into a desultory discussion of some of the 
 propositions, fixing limits to the examination ; when 
 these propositions had such relation to each other, 
 and among themselves, as to render it difficult to fortify 
 one effectually against assault, without the support of 
 the others. And although the subject was not wantirgj 
 in novelty or importance to fit it for solemn argument, 
 yet the complaints of the prosecutor, so often, so loudly,
 
 ARGUMENT OF MR. BOTTS. 63 
 
 and so causelessy repeated, have forced from the court a 
 premature intimation of judgment. I feel the perplex- 
 ity of my situation most sensibly, and shall hope for the 
 indulgence of the oourt, if I should unwarily stray into 
 the seeming indecorum of resisting now and then an 
 inclination of the mind of the bench. Whenever I ven- 
 ture into a scene so delicate, I shall present to the court 
 authorities not to be resisted. 
 
 The opinion of the supreme court overruling the 
 objection, that the oath administered to General Wil- 
 kinson was extrajudicial, fixes the law for this court. 
 The best evidence that the nature of the case will admit 
 of, should be produced. This rule applies to every stage 
 of every case in every court. The failure to produce the 
 best evidence that the nature of the case admits of, fur- 
 nishes a presumption that the higher evidence left be- 
 hind, would, if produced, make against the party offer- 
 ing the weaker. All this is familiar in civil cases, where 
 4Os. may be the quantum of interest in litigation. The 
 benefit of this common law, and common sense, ought 
 not to be lost when the liberty of a citizen is concerned ; 
 when a six months' imprisonment in a dungeon may be 
 the object of the motion. The supreme court con- 
 sidered an affidavit as the best evidence the case then 
 admitted of. The- accusation was fresh, and neither 
 time nor means had been allowed for procuring a per- 
 sonal attendance. Now, the accusation is old, and the 
 government has had all the necessary means of bringing 
 the witness here. The circumstances do, therefore, now 
 admit of higher evidence than an ex parte affidavit. 
 
 The viva voce testimony of General Wilkinson is the 
 right of my client. No man should be deprived of the 
 benefit of a cross-examination, without necessity. You 
 have in another place, said, sir, that it was to be made 
 out only by inference from General Wilkinson's affida- 
 vit, that Colonel Burr was the writer of the letter in 
 cypher. If the witness was here, he would impugn that 
 inference, by swearing that it was not in Colonel Burr's 
 handwriting. If General Wilkinson was present, would 
 you admit his affidavit? If he ought to have been pres- 
 ent, and the government would not get him, shall the 
 prosecution be favored for its negligence ?
 
 64 TRIAL OF AARON BURR. 
 
 But the present charge is confined to high treason, in 
 levying war against the United States ; and the great 
 question is, whether Wilkinson's evidence is in any form 
 pertinent to the charge ? I do not mean to urge the 
 objection, that if it develops any criminal purpose, it is 
 not a treasonable purpose ; for this construction has 
 been settled by the supreme court. Admitting for the 
 time, that it contained evidence of a treasonable pur- 
 pose, and that the opinion of the supreme court is to be 
 overruled, still the evidence would be most impertinent 
 upon the present charge of actual treason. 
 
 I have alluded to legal propositions intended to be 
 pressed, as forming legal restrictions upon the task in 
 which we are engaged. I will first combine them, that 
 their fitness to each other, and their collective effects 
 may be seen. My second process will be to disunite 
 them, and by an analytical comparison of them with 
 the known principles of our treason laws, to ascertain 
 their legality. 
 
 No evidence of any matter ought to be given until 
 proof shall be adduced that there was an actual war 
 levied in the district of Virginia ; and until it is proved 
 that an overt act of treason, in that war, was done by 
 Mr. Burr, which proofs shall be by two witnesses at 
 least. First, It must be proved that there was an actual 
 war. A war consists wholly in acts and not in intentions. 
 The acts must be in themselves acts of war; and if they 
 be not so intrinsically, words or intentions can not make 
 them so. In England, when conspiring the death of the 
 king was treason, the quo animo formed the essence of 
 the offense ; but in America, the national convention has 
 confined treason to the act. We can not have a con- 
 structive war within -the meaning of the constitution. 
 An intention to levy war is not evidence that a war was 
 levied. Intentions are always mutable and variable ; 
 the continuance of guilty intentions is not to be pre- 
 sumed. If this were not the case, the avowal of a pur- 
 pose to levy war would fix the crime. For a proved 
 intention might be attached to the next innocent act of 
 the person who formed it ; and so, preparations of emi- 
 gration be turned into a levying of war. It has been 
 eloquently declared that war can not exist in a closet, or
 
 ARGUMENT OF MR. BOTTS. 65 
 
 a corner ; but when levied, it must be in the face of the 
 world. This can not be true, if the recesses of the 
 bosom are to be explored for any of the ingredients in 
 the composition of the crime of levying war. The 
 guilty intention must be made manifest from the act 
 alone. General Wilkinson professes to know nothing 
 but of intentions, which are not evidence of acts. 
 
 Secondly, The war must not only have been levied, 
 but Mr. Burr must be proved to have committed an 
 overt act of treason in that war. A treasonable inten- 
 tion to co-operate is no evidence of actual co-operation. 
 The acts of others, even if in pursuance of his plan, 
 would be no evidence against him. It might not be 
 necessary that he should be present, perhaps; but he 
 must be, at the time of levying the war, co-operating by 
 acts, or, in the language of the constitution, be commit- 
 ting overt acts. The acts of associates, in a treasonable 
 plan, in countries where the doctrine of constructive war 
 prevails, can never be given in evidence against the ac- 
 cused, until after the plan has been proved on the latter, 
 and until such acts shall appear to have been within the 
 limits of that plan. I East's Crown Law, 96, 97. Part 
 of the proof in this affidavit is of the declarations of a 
 supposed associate, as to what the plan itself was. But 
 in this country, as there can not be a constructive trea- 
 sonable war, plans and acts of associates can only come 
 in when the former have been executed, and the latter 
 have been visibly and publicly assisted. Tucker's Black, 
 vol. 4, Appendix B. 
 
 Thirdly, The overt act by the accused, in an actual 
 war, must not only be proved, but it must be proved to 
 have been committed within this district. The fifth 
 article of the constitution of the United States, and the 
 eighth article of the amendments to the constitution, 
 require that the trial shall be by a jury of the district 
 where the offense was committed. The oath of the 
 grand jury is, accordingly, to inquire of offenses within 
 the district. . The jurisdiction of this court is also 
 limited, by express law, to offenses within the district ; 
 and it is obviously true, that the court's jurisdiction 
 can not be broader in an incipient inquiry than it would 
 be in its connection with a jury on a final trial. Doctor 
 i 5
 
 66 TRIAL OF AARON BURR. 
 
 Blackstone, in the fourth volume of his Commentaries 
 303, refers to the oath of the grand jury, " to inquire 
 into offenses committed within the body of the county, 
 and denies the right of the grand jury to inquire into 
 facts out of the county. In preparing a work for the 
 grand jury, the court can not disregard the limits of their 
 power. The crime to be committed in the district must 
 be wholly committed there. At the common law, if the 
 stroke was given in one county, and the person striken 
 died in another, the murderer could not be prosecuted 
 in either. To remedy this defect, and to provide for 
 others similar to it, many provisions have been made by 
 the English parliament. 4 Black. 303-5. But the 
 English parliament never did alter the common law, as 
 it respected the crime of levying an actual treasonable 
 xvar. Kelyng, 15. The constitution and act of congress 
 have both adopted the rule of location. Tucker's Black- 
 stone, vol 4, Appendix B, 49, 50, 51. Granting, then, 
 that intention may make that war, which would not other- 
 wise be so, still, as a formed intention is no proof of its own 
 continuance or execution, the intention must be proved 
 to have been cotemporaneous and homogeneous with 
 the act in the district. In this view, the intention forms 
 a constituent part of the offense. If one constituent 
 part of the offense can be brought from without the dis- 
 trict, and coupled with others in the district, any one 
 constituent part, or number of constituent parts of the 
 crime may be brought from without the district. Then 
 one component part only happening in Virginia, out of 
 one hundred necessary to its completion, would give this 
 court jurisdiction : and thence one, out of one hundred 
 parts of a crime, would be a crime within the meaning 
 of the constitution. Let us view the consequences of this 
 logic. 
 
 Upon proof against Mr. Burr touching a crime, part 
 of which was committed in this district, he may be tried 
 and acquitted. In Ohio he may be indicted, and evi- 
 dence may be prepared touching the same crime. Can 
 he plead autrefois acquit in bar, by averring that the 
 crimes charged in the two states was one and the same ? 
 His averment would be against the record of the indict- 
 ment charging a complete separate crime in each dis-
 
 ARGUMENT OF MR. BOTTS. 67 
 
 trict. Will you, sir, put upon the constitution such a 
 construction as will subject a citizen to be hunted down, 
 by trial after trial, in state after state, as long as the per- 
 secuting spirit of a wicked executive may last? Do not 
 understand me to allude in this to the present adminis- 
 tration, the characters of which I have been in the habit 
 of admiring ; but the construction now to be fixed must 
 go down to posterity, and may be made instrumental in 
 effecting the worst of state oppressions. 
 
 Remember that Mr. Burr has forborn to avail himself 
 of this legal principle in Kentucky and in the Mississippi 
 Territory, in order that the merits of his case might . 
 come before the inquests ; but it ought now to be agreed 
 that he should protect himself from being harassed fur- 
 ther; by calling into exercise the great principles of the 
 constitution, declaring that no man shall be twice put in 
 jeopardy of his life for the same offense. See amend- 
 ments to constitution. Now, what part of the affidavit 
 speaks of a fact within the district ? 
 
 Fourthly, The overt act of treason by Mr. Burr 
 within the district must be proved by two witnesses. 
 The constitution and act of congress require two wit- 
 nesses, not only' to the act, but to the treasonable 
 quality of the act. After full time has been afforded to 
 collect all the witnesses in the power of the government, 
 the accused ought not to be deprived of his liberty, 
 unless it was believed that the evidence collected would 
 convict him : imprisonment is only intended for trial 
 and not for punishment. By what does General Wilkin- 
 son's affidavit make out intentions? The answer is, by the 
 confessions of the accused or of his supposed associates. 
 The confessions of the accused, by the express words 
 of the constitution, are not evidence, unless made in 
 open court. Confessions are often admitted from neces- 
 sity, to get at crimes that deal in secrecy, as larceny, for- 
 gery, and robbery ; but the safety of the people requires 
 that crimes which deal in publicity, as does the crime of 
 a treasonable war, should not be proved by evidence so 
 incapable of exculpatory proof. When an honorable 
 gentleman (Mr. Giles) was challenged the other day 
 upon a suggestion of his having expressed himself upon 
 the case of the accused, he said he was indisposed to
 
 68 TRIAL OF AARON BURR. 
 
 hear evidence of unguarded expressions, in which the 
 witness might have mistaken his meaning; have misun- 
 derstood what he said, or not have heard all that he 
 said ; or have substituted his own inferences for the 
 words of the speaker. Blackstone and Foster have 
 characterized it to be the most dangerous species of 
 evidence, ever liable to misconstruction and abuse. But 
 if the constitution has prescribed it, why now question 
 its exclusion ? If the confessions of the accused out of 
 court could not be evidence against him, could the con- 
 fessions of real accomplices be evidence against him ? 
 Yet the evidence of Wilkinson relates, in part, to the 
 confession of pretended accomplices, no way proved to 
 have been authorized by Mr. Burr to say or to do any- 
 thing. 
 
 But why, it may be asked, is Mr. Burr afraid to 
 hear illegal evidence, if he is consciously innocent ? 
 
 We see witnesses from different and distant parts of 
 the United States, whose names, faces, and characters, 
 are alike unknown to Mr. Burr. He can not ascertain 
 upon what parts of his life or conduct they are expected 
 to speak, or upon what information their evidence may 
 rest. His character has long been on public torture; 
 and wherever that happens, with either a good or a bad 
 man, the impulses to false testimony are numerous. 
 Sometimes men emerge from the sinks of vice and ob- 
 scurity into patronage and distinction by circulating 
 interesting tales, as all those of the marvelous kind are. 
 Others, from expectations of office and reward, volun- 
 teer; while timidity, in a third class, seeks to guard 
 against the apprehended danger, by magnifying trifling 
 stories of alarm. These works of exaggeration and prop- 
 agation are frequently the subjects of idle amusement. 
 The authors, until they commit themselves, have no 
 just conception of the mischiefs they are hatching; but 
 when they are afterwards called to give testimony, per- 
 jury will not appall them, if it be necessary to save their 
 reputations for consistency or veracity. If the evidence 
 be restricted within the legal limits, the purest of char- 
 acters, under accusation of treason, will have hazard 
 enough to run. A judge, whose experience of these dan- 
 gers was great, thus speaks on the subject : " The rule of
 
 ARGUMENT OF MR. WICKHAM. 69 
 
 rejecting all manner of evidence in criminal prosecutions, 
 that is foreign to the point at issue, is founded on sound 
 sense and common justice. For no man is bound, at the 
 peril of life and liberty, fortune or reputation, to answer, 
 at once, and unprepared, for every action of his life." 
 Few, even of the best of men, would choose to be put to 
 it. And had not those concerned in the state prosecu- 
 tions, out of their zeal for the public service, sometimes 
 stepped over this rule in the case of treason, it would, 
 perhaps, have been needless to have made an express 
 provision against it in that case. Foster's C. L. 246. 
 
 Mr. Wickham regretted that so much time had been 
 consumed ; but hoped the court would acquit them of 
 any intention to waste it. When any illegal motion was 
 introduced by the opposite counsel, he felt it as a serious 
 duty due to his client to resist it with firmness. That 
 for his own part he should not forget that he was before 
 the circuit court of the United States, nor should he so 
 far lose his respect for their discernment as to bring 
 forward motions which he believed to be illegal, only 
 to waste the time of the court ; that he hoped none but 
 legal evidence would be suffered to be introduced ; none 
 but competent witnesses to be heard ; and if this rule 
 was not rigidly adhered to, what was to prevent the 
 counsel on the other side from producing any and every 
 kind of evidence that they pleased ? 
 
 It can not be supposed (said Mr. Wickham) that we 
 are afraid of this affidavit. What is in it, which has not 
 been already known and scattered in every loose sheet 
 of a newspaper throughout the United States? It is not 
 that we resist it in point of fact; but on the ground 
 of principle. We wish two points to be settled ; are 
 affidavits to be read at all on such a motion, and at 
 such a crisis of the prosecution as this? and if so, ought 
 they to be read if the witnesses themselves were present ? 
 Would it be right, if they were in the next street or the 
 next county ? Would it in fact be right if there was time 
 enough to produce the " viva voce " testimony itself? 
 Mr. Burr had a right to be confronted with General 
 Wilkinson. He had a right to cross-question and ex- 
 amine him on all the statements which he has made. 
 The government had power to bring him here. Why is
 
 70 TRIAL OF AARON BURR 
 
 he not here? Ought not some satisfactory excuse to be 
 made for him ? He is an officer of this government ; 
 and the government might have procured his attend- 
 ance, as well by a special order as by a civi 1 . process. 
 Has any subpoena been taken out? inquired Mr. Wick- 
 ham, addressing himself to the clerk. 
 
 The clerk replied that no subpoena filled up with Gene- 
 ral Wilkinson's name had issued from his office ; but that 
 blank subpoenas had been taken out. 
 
 Mr. Wickham. No one knows, sir. There was time 
 enough to have him here. The mail travels from Wash- 
 ington to New Orleans in seventeen days. He might 
 have come ; but if he has not, why is not some satis- 
 factory excuse brought forward? We want, sir, to see 
 this gentleman cross-examined. We want to see him 
 confronted with other witnesses. This is one ground on 
 which we object to the production of this affidavit. 
 
 Another ground is that according to the decision of the 
 supreme court of the United States, this affidavit does not 
 bear upon the present motion. Mr. Swartwout, who was 
 said to be connected with Mr. Burr, was discharged by 
 them, because this affidavit did not apply to the charge 
 of treason. Are counsel, then, to be suffered to produce 
 testimony on any subject that they please? A third 
 objection is, that General Wilkinson does not relate a 
 single act committed in the district of Virginia. In Vir- 
 ginia ? no, nor anywhere else. The attorney for the 
 United States says that he. will prove the overt act 
 hereafter. But, sir, I repeat it that the rules of evidence 
 apply not only to the admissibility of evidence, but to 
 the order in which it is to be produced. Let them first 
 prove an overt act, if they can ; and then they are at 
 full liberty to prove the color of it. 
 
 Again, sir, this deposition is not the best evidence 
 which could be produced, and which the laws require. 
 General Wilkinson speaks of a cyphered letter, and of 
 its contents, as well as he can make them out. Now, sir. 
 where is this letter, and where is the key to it ? Why 
 are they not here ? Why are they not produced before 
 you ? For these reasons, Mr. Wickham hoped that the 
 court would not suffer the affidavit to be read in evi- 
 dence.
 
 ARGUMENT OF MR, RANDOLPH. 71 
 
 Mr. Hay. We shall not, sir, be carried from our 
 course by speeches, however long or animated they. may 
 be. But, sir, permit me to give those gentlemen a little 
 information. Why talk of the affidavit before you ? 
 Do these gentlemen know that we can positively prove 
 the astonishment, the regret, and the denunciation which 
 escaped from Mr. Burr, when he first heard of the publi- 
 cation of his cyphered letter ! Let them first know what 
 we can prove, before they abondon themselves to their 
 triumph. General Wilkinson's affidavit is the first in the 
 series of our proofs, and it is for this reason that we 
 wish to commence with it. 
 
 Mr. Edmund Randolph. Sir, we do not know what 
 those gentlemen expect to prove ; but we do object to 
 the production of General Wilkinson's affidavit from 
 what is already known ; we know it to be perfectly in- 
 applicable to the present question. Sir, this species of 
 evidence is directly in the face of our bill of rights, and 
 of the constitution of the United States. " In all crimi- 
 nal prosecutions, the accused shall enjoy the right to a 
 speedy and public trial, by an impartial jury of the state 
 and district wherein the crime shall have been committed ; 
 which district shall have been previously ascertained 
 by law ; and to be informed of the nature and cause of 
 the accusation ; to be confronted with the witnesses 
 against him, 1 ' &c. Mr. Burr, then, sir, has a gene- 
 ral constitutional right to be confronted with the 
 witnesses against him. Let gentlemen show any excep- 
 tion to it, if they can. And what have they done ? 
 Why, they have shown here an obsolete and evaporated 
 affidavit, for which there is no necessity and no law. 
 The law positively declares that the best evidence is 
 always to be had ; that when a witness is attainable, his 
 affidavit is not to be admitted as testimony. We stand, 
 therefore, sir, upon the bill of rights. Gentlemen may, 
 indeed, attempt to evade its provisions by saying that 
 they can hereafter prove the material act ; but I hope 
 that this court will never countenance such illegal pro- 
 ceedings. 
 
 The chief justice stated that the supreme court of the 
 United States had already decided that an* affidavit 
 might be admitted under certain circumstances ; but
 
 72 TRIAL OF AARON BURR. 
 
 they had also determined that General Wilkirr* ..*. 3 
 affidavit did not contain any proof of an overt act; that 
 he was certainly extremely willing to permit the attor- 
 ney for the United States to pursue his own course in 
 the order of drawing out his evidence, under a full con- 
 fidence that he would not waste the time of the court by 
 producing any extraneous matter ; but where was the 
 necessity of producing General Wilkinson's affidavit 
 first? If there was no other evidence to prove the overt 
 act, Wilkinson^s affidavit goes for nothing ; for the su- 
 preme court of the United States have already decided, 
 and by that decision he should have conceived himself 
 bound, even if he had dissented from it. Why, then, 
 produce this affidavit ? 
 
 Mr: Hay observed that there was a great difference 
 between the course prescribed by the court, and the one 
 which he would have pursued ; and that he seriously 
 believed, if he had been left to himself, he would at least 
 have satisfied the court itself that his own course was 
 the best. That as to General Wilkinson's affidavit, it 
 might even now be confronted with witnesses ; as 
 Messrs. Bollman and Swartwout were present, and would 
 say whether such and such conversations were ever held, 
 as are detailed in this affidavit. That he was now before 
 an examining court, and not before the petit jury; why, 
 then, the same strictness of evidence now as would be 
 required on the trial in chief? That he really believed 
 it was the intention of the opposite counsel, by dint of 
 long speeches, to attempt to drive him into their course; 
 but that they ought to know he never consulted the 
 counsel opposite to him ; and that they would be the 
 last persons in the world whose opinions he would con- 
 sult on the present occasion. That he seriously believed 
 that the evidence which he possessed would, beyond 
 the possibility of a doubt, convince the mind of the 
 court, not only of the existence of a traitorous design, 
 but of an overt act; and that all that he asked, was the 
 liberty of producing this evidence in the order which he 
 thought best. Is no part of this deposition, then, ad- 
 missible ? Not a word. 
 
 The chief justice observed that he thought no part of 
 it admissible at this time; that General Wilkinson's
 
 MOTION TO EXCLUDE EVIDENCE. 73 
 
 affidavit either contained proof of the treasonable de- 
 sign, which was no proof of the overt act, or it related to 
 conversations, which, however strongly they might bear 
 upon those who held them, did not bear upon Mr. 
 Burr. 1 
 
 Mr. Hay asked how the court was to be satisfied of 
 the contents of any paper before it was read to them ? 
 An affidavit might contain both the proof of the overt 
 act, and a traitorous design. Was such a paper as this 
 to be read under the decision of the court? or how was 
 the court to know whether a paper might not contain 
 some proof of the overt act satisfactory to them, unless 
 they had an opportunity of inspecting that paper ? 
 
 Mr. Wickham. These gentlemen talk of delay ; and 
 yet they would produce to this court whole masses of 
 evidence that are perfectly irrevelant to the present 
 question. They declare that they will not pursue our 
 advice ; and that we are the last persons whom they 
 would take for counsellors. Sir, we do not ask them ; 
 all that we want is, that they would pursue the strict 
 principles of law and legal evidence. One of the best 
 rules of evidence is the order of evidence. If a man is 
 charged with a crime, must not the deed itself exist 
 before any testimony is produced as to the intention 
 with which it is done ? I hope that no testimony will 
 be suffered to be introduced before the act itself shall be 
 produced ; and I call upon this court to inforce the 
 strict order of evidence. 
 
 Mr. Burr observed that in point of fact, it was very 
 immaterial to him whether this affidavit was read or not; 
 that what he particularly wanted was, that the great 
 principles of evidence should be laid down, which would 
 be equally applicable to this and to all other affidavits. 
 He consented that the court might have this deposition 
 read if they thought proper. 
 
 Mr. Hay. This deposition will prove that it was one 
 of Aaron Burr's objects to seize upon Mexico. Then, if 
 
 1 The chief justice observed in a subsequent stage of this business, that an 
 idea had since struck his mind, which he thought it material to state ; that 
 he had not recollected that these conversations were said to be held by per- 
 sons who were said to be authorized by Mr. Burr ; and of course that their 
 conversations would bear upon him.
 
 74 TRIAL OF AARON BURR. 
 
 we can have by some other evidence, that this object 
 was connected with an attack upon the United States, 
 is not this deposition of material importance in that 
 point of view ? If both must be proved, does it make 
 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 
 custody, or required to give security for his appearance 
 while his examination is depending. The amount of the 
 security to be required must depend, however, upon the 
 weight of the testimony against him. On a former 
 occasion Mr. Burr was held to bail for his daily appear- 
 ance in the sum of five thousand dollars only, because 
 there was no evidence before the judge to prove the pro- 
 bability of his having been guilty of treason. When the 
 examination was completed, the sum of ten thousand 
 dollars was considered sufficient to bind him to answer 
 the charge of a misdemeanor only, because the constitu- 
 tion requires that excessive bail should not be taken ; 
 but that recognizance had no application to the charge 
 of treason. Yet, whether additional security ought to 
 be required in the present stage of this business, before 
 any evidence has appeared to make the charge of treason 
 probable, is a question of some difficulty. It woultl 
 seem that evidence sufficient to furnish probable cause 
 must first be examined before the accused can be 
 deprived of his liberty, or any security can be required 
 of him. Yet, before this could be done, he might escape 
 and defeat the very end of the examination. . In com- 
 mon cases, where a person charged with a crime is 
 arrested and brought before a magistrate, the arrest 
 itself is preceded by an affidavit which furnishes 
 grounds of probable cause. The prisoner therefore is 
 continued in custody, or bailed until the examination is 
 finished : but here there has been no arrest for treason, 
 and Mr. Burr is not in custody for that offense. The 
 evidence then must be heard to determine whether he 
 ought to be taken into custody ; but as the present pub- 
 lic and solemn examination is very different from that 
 before a single magistrate ; as very improper effects on 
 |-he public mind may be produced by it ; I wish that the
 
 86 TRIAL OF AARON BURR. 
 
 court could be relieved from the embarrassing situation 
 in which it is placed, and exempted from the necessity of 
 giving any opinion upon the case previously to its being 
 acted upon by the grand jury. It is the wish of the 
 court that the personal appearance of.Mr. Burr could be 
 secured without the necessity of proceeding in this in- 
 quiry. 
 
 Mr. Burr rose, and observed that he denied the 
 right of the court to hold hhn to bail in this stage of the 
 proceedings; that the constitution of the United States 
 was against it ; declaring that no person shall be ar- 
 rested without probable cause made out by oath or af- 
 firmation. But if the court were embarrassed, he would 
 relieve them by consenting to give bail ; provided it 
 should be understood that no opinion on the question 
 even of probable cause was pronounced by the court, 
 the circumstance of his giving bail. 
 
 The chief justice said that such was the meaning of 
 the court. 
 
 Mr. Martin said, for his part, he should prefer that all 
 the evidence should be fully gone into. Instead of fear- 
 ing that public prejudice would thereby be excited 
 against Mr. Burr, he believed it would remove all the 
 prejudices of that sort which now prevailed. 
 . The Chief Justice: As a bill will probably be sent up 
 to the grand jury, the court wished to declare no opinion 
 either way. 
 
 Some conversation then occurred relative to the quan- 
 tum of bail ; and Mr. Burr mentioned that he would 
 propose that the sum should be ten thousand dollars, if 
 he should be able to find security to that amount, of 
 which he expressed himself to be doubtful. Mr. Hay 
 contended that fifty thousand dollars would not be too 
 much. But the court finally accepted the offer made by 
 Mr. Burr ; who after a short interval, entered into a re- 
 cognizance with four securities, to wit, Messrs. Wm. 
 Langburn, Thomas Taylor, John G. Gamble, and Luther 
 Martin ; himself in the sum of ten thousand dollars, and 
 each security in the sum of two thousand five hundred 
 dollars, conditioned that he would not depart without 
 leave of the court.
 
 MOTION TO ADJOURN. 87 
 
 MONDAY, JUNE i, 1807. 
 
 The grand jury having been called over, Mr. Hay ob- 
 served tjiat he felt great embarrassment and difficulty as 
 to the course which ought -to be pursued ; he had con- 
 fidently expected the arrival of General Wilkinson, and 
 was disappointed. He was, therefore, unwilling to sub- 
 ject the grand jury to the inconvenience of further 
 attendance ; but he thought it proper to inform the 
 court that he had this morning received a number of 
 affidavits of witnesses, residing in the neighborhood of 
 Chillicothe, and of Blannerhasset's island, which bore 
 directly upon the charge of treason against Mr. Burr. 
 Those affidavits, however, had been taken in such a man- 
 ner, that according to the opinion lately given by the 
 court, concerning the affidavit of Jacob Dunbaugh, they 
 were not admissible as evidence, and would not be per- 
 mitted to be read. He expected to hear from General 
 Wilkinson (if he should not appear in person) by the 
 Lynchburgh mail, which he understood would arrive on 
 Wednesday morning. He, therefore, hoped that the 
 grand jury would not be unwilling to make a further 
 sacrifice of a portion of their time for the public good, 
 and would consent to wait with patience. 
 
 WEDNESDAY, JUNE 3, 1807. 
 
 The names of the grand jury being called over, they 
 retired to their chamber. A few minutes after, the at- 
 torney for the United States entered, and observed that 
 he had a proposition to submit to the court, which he 
 wished the grand jury to hear. He requested, therefore, 
 that they might be called in. 
 
 The chief justice directed the marshal to call the jury 
 into court. 
 
 Some minutes intervened before they appeared. In 
 the mean time, Mr. Hay informed the court that he 
 only wished to know from the grand jury, at what time 
 it would be most convenient for them to attend the 
 court, if they were adjourned to some distant day, should 
 such an adjournment equally suit the arrangements of 
 the opposite counsel ; that he had just made a calcula-
 
 88 TRIAL OF AARON BURR. 
 
 tion with his friend the marshal, which satisfied him that 
 General Wilkinson had not, perhaps, sufficient time to 
 reach this city. The distance from New Orleans, on the 
 map, was about 1,370 miles; if he came by land, he must 
 travel on horseback ; but judging him by himself, he 
 could not probably ride more than thirty miles per day ; 
 by these data he would require about forty-five days 
 (besides a fragment of a few miles) to travel from New 
 Orleans to this city. This calculation would bring him 
 to the I4th or I5th of this month. He was, therefore, 
 willing, if it suited the wishes of the opposite counsel, to 
 have the grand jury adjourned for about ten days; that 
 General Wilkinson's situation called upon the court to 
 make this arrangement ; he need not expatiate upon the 
 importance of his official duties, nor the perilous con- 
 dition of that part of the country, where the head of an 
 army ought always to be present ; that General Wilkin- 
 son should be detained here as short a time as possible ; 
 and, that it would be particularly inconvenient for him 
 to stay here until the meeting of an intermediate court 
 for the present trial ; that it was, therefore, the interest 
 of the United States to have the trial concluded during 
 the present term ; and, that he had no doubt the very 
 same considerations would lead every member of the 
 grand jury cheerfully to submit to any private incon- 
 venience which they might sustain, but punctually to re- 
 turn at the time appointed by the court. 
 
 The chief justice observed that there could be no dif- 
 ficulty on the part of the court. 
 
 Mr. Hay. General Wilkinson's situation, as a com- 
 mander-in-chief of the forces of the United States, is a 
 very delicate one. His -official duties may require him 
 to return immediately after his arrival at this place. 
 Our affairs in that part of the union are also in a very 
 unsettled state. If he should be compelled to return 
 after the adjournment of the court, it may not be in his 
 power to be here either at a special court, or at the next 
 term. He hoped that the proposition to adjourn the 
 grand jury to a distant day would meet with the approba- 
 tion of Mr. Burr and his counsel. 
 
 Mr. Wick ham owned that this communication some- 
 what surprised him, as Mr. Hay had, but a few days
 
 MOTION TO ADJOURN. 89 
 
 before, announced to the court, from a letter of the 
 secretary of war that General Wilkinson would be here 
 between the 28th and 3Oth of May. 
 
 Mr. Hay observed that the letter from General Dearborn 
 admitted of an easy explanation; that according to Mr. 
 Minnikin's affidavit, the express could not have reached 
 New Orleans before the 3d or 4th of May, and that this 
 exceeded the time which General Dearborn had allowed. 
 His opinion was founded on the circumstance of the 
 messenger leaving Washington on a certain day, and of 
 course his reaching New Orleans on a certain day. That 
 Mr. Minnikin's affidavit had shown the calculation to be 
 not altogether, correct ; that Mr. Minnikin had, therefore, 
 given him some information, which General Dearborn 
 could not have possessed. Mr. Hay was sorry he could 
 not inform the court how General Wilkinson traveled, 
 and of course how to make any calculation about the 
 time of his arrival. 
 
 The chief justice said that before the grand jury came 
 in, he could not but express his regret at the great in- 
 convenience which they were likely to sustain ; but he 
 believed that less of it would arise from the course 
 pointed out by the United States' attorney than from 
 any other. The court would continue to sit as usual ; 
 its ordinary business would go on ; and no further steps 
 would be taken in the prosecution, until the return of 
 the grand jury. The court would observe that it seemed 
 desirable, in every point . of view, that this business 
 should be closed during the present term ; that a number 
 of witnesses were now present, all of whom would not 
 probably attend at any other term, and that it would be 
 more convenient for the court itself to wait a fortnight 
 longer after its usual period of adjournment, than to 
 hold an intermediate court for this purpose. 
 
 Mr. Wick ham had no doubt himself, that if General Wil- 
 kinson had intended to have come at all, he would have 
 been here before this time ; certainly the government 
 had not failed in its duty in taking every necessary 
 measure to have him here. If the grand jury was ad- 
 journed to some distant day, the great difficulty would 
 be to collect them all again at the end of the time ap- 
 pointed ; and that if General Wilkinson was to come at all,
 
 9 o TRIAL OF AARON BURR. 
 
 he may be expected here every day ; and that of course 
 it was better to adjourn the grand jury only from day to 
 day. 
 
 Mr. Hay stated that a large allowance ought to be 
 made for the distance and uncertainty of the journey ; 
 and that he should remind the court of a corresponding 
 fact. Mr. Perkins, who escorted Mr. Burr, left Fort 
 Stoddert about the 23d or 24th of March ; but he him- 
 self did not reach this city before the thirty-third or 
 thirty-sixth day. Now, Mr. Perkins certainly traveled 
 with greater advantages then General Wilkinson would ; 
 as he pressed or purchased horses to expedite his jour- 
 ney. Admit, then, Mr. Perkins used due diligence (and 
 he has been even charged with too much), how can Gen- 
 eral Wilkinson be certainly expected ? Gentlemen 
 ought not to be so confident in their hopes. General 
 Wilkinson will be here as sure as he is a living man. 
 Nothing but death will prevent him. 
 
 The chief justice observed that a large calculation 
 ought certainly to be made, as the distance was very 
 considerable, and it was very uncertain when General 
 Wilkinson set out, or how he traveled. 
 
 At this moment the grand jury returned into court. 
 
 Mr. Hay addressed them in the following terms : 
 
 Gentlemen of the Grand Jury, I have already 
 stated to the court and the opposite counsel, that this 
 business should be concluded if possible during your 
 present session. I have moved the court that you be 
 called again at the end of ten days or a fortnight. My 
 calculation is, that General Wilkinson can not be here 
 before the I4th or i$th of this month. I am sorry to 
 detain you here a single moment ; but I flatter myself 
 that you will still continue to display the same praise- 
 worthy patience which has hitherto marked your con- 
 duct. I am therefore anxious to consult your own con- 
 venience as much as possible ; and I wish- to know at 
 what time it will be most convenient for you to return 
 to this place,- if you are adjourned to a distant day. 
 
 Mr. John Randolph (the foreman). Any time, may it 
 please the court, shall be most convenient to ourselves, 
 that is most convenient to the court and the parties. 
 We should, however, prefer a distant day.
 
 MOTION TO ADJOURN. 91 
 
 Mr. Burr observed that there were manifest incon- 
 veniences in the measure proposed. He had, for in- 
 stance, a number of witnesses here from a distance ; 
 would it not be inconvenient for them to be kept here ? 
 Certainly, however, they must be detained ; but, why an 
 adjournment to a distant day? Mr. Wilkinson may be 
 expected here every day. The attorney's estimate of 
 the time is not perhaps correct. Perkins came about the 
 same distance as Mr. Wilkinson is to come ; but he per- 
 formed his journey in thirty-one days. What we want, 
 however, is some data from the government on this sub- 
 juct ; such, for instance, as the time when the express 
 left Washington. As to Minnikin's affidavit, what 
 great reliance can be placed in it ? Did he certainly 
 identify the express? But suppose that the express 
 reached New Orleans about the time mentioned ; Mr. 
 Wilkinson may come by water, and is to be expected 
 here every day. Mr. Burr hoped that this measure 
 would not be adopted ; particularly as it was uncertain 
 whether eight or ten days hence all of the grand jury 
 would meet here again. Mr. Wilkinson may be near to 
 this place at this moment; and he may arrive almost 
 immediately after the jury is adjourned. Adjourn them 
 from day to day. According to Mr. Dearborn's letter,' 
 Mr. Wilkinson ought to have been here between the 
 28th and 3Oth of May ; allowing, however, six,' days more 
 than he said, Mr. Wilkinson may be expected here to- 
 morrow. 
 
 Mr. Hay observed that it was of no sort of importance 
 to him, personally or officially, to what time the grand 
 jury was adjourned; all that he wished was, that the 
 public business should go on, and this prosecution closed 
 during the present court. Whether General Wilkinson 
 would be here to-morrow, or a fortnight hence, he knew 
 not ; he merely made the present proposition for the 
 accommodation of the grand jury. If gentlemen on the 
 other side choose to object to it, and the court would 
 adjourn the jury from day to day, he was satisfied. He 
 had in the early part of April, received a letter from Mr. 
 Rodney, stating that every exertion would be made to 
 have him here : it was not probable that the messenger 
 could have arrived in New Orleans before the 3d or 4th
 
 92 TRIAL OF AARON BURR. 
 
 of May. If General Wilkinson traveled by land, he would 
 not come so expeditiously as Mr. Perkins, because Mr. 
 Perkins had exhausted the frontier parts of Georgia of 
 its horses. Such, at least, was Mr. Minnikin's represen- 
 tation. f 
 
 Mr. Martin submitted to the court, whether it was not 
 better to adjourn the jury from day to day. Any calcu- 
 lation on such a subject was uncertain ; it was uncertain 
 whether General Wilkinson would travel by land or by 
 water; but if he came by land, he might certainly travel 
 further than the gentleman had allowed thirty miles 
 a day ; nor would he be obliged to use the same horse, 
 as that gentleman had also supposed. As General 
 Wilkinson was a military gentleman, he would not be 
 confined to thirty miles a day; nor might he deny him- 
 self the convenience of frequent relays of horses. And 
 suppose he should arrive here to-morrow, all the other 
 important witnesses are present, and the business might 
 be concluded before the time should come to which the 
 grand jury may be 'adjourned. He hoped, therefore, 
 that the court would not adjourn them to a distant day. 
 As to himself, he said, he did not wish his own situation 
 to enter into the consideration of the grand jury, or the 
 court ; that certainly he ought to be on the Eastern 
 Shore, on , to attend the court; but that notwith- 
 standing this circumstance, he was determined to stay 
 here, so long as he could expect to do any service to the 
 gentleman whom he had come to defend. 
 
 Mr. Wickham stated that if General Wilkinson did not 
 even, arrive here in two or three days, intelligence at least 
 might be obtained within that time of the period of his 
 arrival. Every post from the north or south might 
 bring the information ; every person that came by land 
 or water might do so ; under such circumstances, ought 
 they to be adjourned for ten days, or a fortnight ? 
 
 The chief justice said that he was fully impressed with 
 the patience which the grand jury had manifested ; per- 
 haps Monday next would be as convenient for them as 
 any other day, to reassemble. 
 
 Mr. Wickham expressed his opposition to their ad- 
 journment ; for although the jury had hitherto exhibited 
 so much patience, yet if they retired home, some one
 
 ADJOURNMENT. 93 
 
 might find his domestic affairs in such situation as to 
 think himself excused from further attendance. 
 
 CJiief Justice. Gentlemen of the grand jury, you will 
 attend here on Tuesday next, at two o'clock. 
 
 TUESDAY, JUNE 9, 1807. 
 
 Mr. Hay observed that it was proper for him to inform 
 the court that he had received no further information 
 respecting General Wilkinson, except what was con- 
 tained in a Norfolk paper (The Public Ledger) received by 
 the mail of this morning; a paragraph of which stated 
 that a vessel had arrived there in twenty-seven days 
 from New Orleans, and that at the departure of the 
 vessel from the latter place, which must have been 
 about the nth of last month, General Wilkinson was 
 still in New Orleans ; and nothing was said as to his in- 
 tention of leaving it. He said that he had confidently 
 expected General Wilkinson here before this time ; but 
 that he might have been led into the mistake by the 
 information of Mr. Minnikin, as to the progress which 
 the express had made, when he saw the messenger on 
 his way to New Orleans. It was 'possible that in the 
 latter part of his journey, he might not have been able to 
 move with as much rapidity as upon his first setting out ; 
 but from a knowledge of the fact that General Wilkinson 
 was at New Orleans* at that time, his hopes were much 
 stronger that he would certainly be here. The express 
 would go directly to him, and he would have nothing to 
 do but to prepare for his journey to this place ; he 
 wished the subject might be postponed fora few days. For 
 the sake of economy, for the sake of that justice which 
 is due to the public and to the accused, he hoped that 
 no objection would be made to this course. Almost all 
 the witnesses were here ; that he was sorry to be forced 
 to make so many apologies to the grand jury, who had 
 already manifested so much patience ; but he begged 
 them to recollect the extreme importance of the present 
 trial, and that it would, perhaps, be the last time that 
 they would be placed in this situation. 
 
 Mr. Burr hoped the jury would be adjourned for as 
 short a time as possible ; at all events not longer than 
 Thursday.
 
 94 
 
 TRIAL OF AARON BURR. 
 
 Chief Justice, This is Tuesday; the attorney for the 
 United States can not probably expect General Wilkin- 
 son before Thursday, if he comes by water. 
 
 Mr. Hay knew not how he was to come ; if by water, 
 he certainly could not be expected before that time ; 
 and if by land, he would certainly require one day to 
 recover from the fatigue of traveling. 
 
 The chief justice then observed to the grand jury that 
 they were adjourned till Thursday, ten o'clock. 
 
 Mr. Burr then addressed the court. There was a prop- 
 osition which he wished to submit to them. In the 
 president's communication to congress, he speaks of a 
 letter and other papers which he had received from Mr. 
 Wilkinson, under date of 2ist of October. Circum- 
 stances had now rendered it material that the whole of 
 this letter should be produced in court ; and further, it 
 has already appeared to the court in the course of differ- 
 ent examinations, that the government have attempted 
 to infer certain intentions on my part from certain trans- 
 actions. It becomes necessary, therefore, that these 
 transactions should be accurately stated. It was, there- 
 fore, material to show in what circumstances I was 
 placed in the Mississippi Territory; and of course, to ob- 
 tain certain orders of the army and the navy which were 
 issued respecting me. I have seen the order of the navy 
 in print ; and one of the officers of the navy had assured 
 me that this transcript was correct. The instructions in 
 this order were to destroy my person and my property 
 in descending the Mississippi. Now, I wish, if possible, 
 to authenticate this statement ; and it was for this pur- 
 pose, when I passed through Washington lately, that I 
 addressed myself to Mr. Robert Smith. That gentle- 
 man seemed to admit the propriety of my application, 
 but objected to my course. He informed me that if I 
 would apply to him through one of my counsel, there 
 could be no difficulty in granting the object of my appli- 
 cation. I have since applied in this manner to Mr. 
 Smith, but without success. Hence I feel it necessary 
 to resort to the authority of this court, to call upon them 
 to issue a subpoena to the president of the United 
 States, with a clause requiring him to produce certain 
 papers, or in other words, to issue the subpoena duces
 
 MOTION TO PRODUCE PAPERS. 95 
 
 tecum. The attorney for the United States, will, how- 
 ever, save the time of this court, if he will consent to 
 produce the letter of the 2 1st October, with the accom- 
 panying papers, and also authentic orders of the navy 
 and war departments. 
 
 Mr. Randolph observed that he knew not whether it 
 was necessary for him to support Mr. Burr's motion : 
 that he had been informed by him of his application 
 through a friend, to Mr. Smith, and of Mr. Smith's 
 refusing to grant the application, unless it were made 
 through one of his counsel ; that he had himself, therefore, 
 addressed a letter to Mr. Smith, informing him of Mr. 
 Burr's statement. In answer to this he had received a 
 letter, which seemed like a personal communication to 
 himself; but as he had not requested him to withhold it 
 from Mr. Burr, and as it contained information material 
 to him, he had shown it to Mr. Burr. 
 
 Mr. Randolph regretted that he had not the letter 
 then about him ; but the substance of it was, that the 
 order which had been alluded to was only for the officer 
 to whom it had been addressed, and was to be seen only 
 by him. He added that he had written in reply to Mr. 
 Smith, that he never would have applied to him for it, 
 but for two reasons, that it had already appeared in a 
 Natchez Gazette, and that Mr. Van Ness, the friend of 
 Mr. Burr, had informed him of Mr. Smith's uncondi- 
 tional promise to furnish the order, if he were properly 
 applied to for it. 
 
 Mr. Burr observed that to avoid all possible miscon- 
 ception, he thought it proper to state that Mr. Van Ness 
 had assured him of Mr. Smith's positive and unqualified 
 promise to furnish the answer, if applied for through 
 counsel. 
 
 Mr. Hay declared that he knew not for what this in- 
 formation could be wanted ; to what purpose such evi- 
 dence could relate, and whether it was to be used on a 
 motion for commitment, or on the trial-in-chief. 
 
 Mr. Burr, Mr. Wickham, and Mr. Martin observed 
 that perhaps on both, according as circumstances might 
 require. 
 
 Mr. Hay. I suppose this court will not proceed but 
 upon facts. Now, a letter of the 2 1st of October is
 
 96 TRIAL OF AARON BURR. 
 
 spoken of; but has this letter been yet identified? He 
 hoped that the court would not issue the subpcena duccs 
 tecum, until they were satisfied that they had the author- 
 ity to issue it, and that the information required was 
 material in the present case. 
 
 Mr. Wickham observed that the present was simply 
 intended as a notice of a motion to be brought before the 
 court ; which motion might be discussed either to-day 
 or to-morrow. 
 
 Mr. Hay declared that all delay was unnecessary; but 
 he pledged himself, if possible, to obtain the papers 
 which were wanted ; and not only those, but every paper 
 which might be necessary to the elucidation of the case. 
 
 Chief justice observed that all delay was obviously 
 improper; that if the papers were wanted, they ought to 
 be obtained as soon as possible, and not, perhaps, delay 
 the ulterior stages of the prosecution. 
 
 Mr. Hay stated that he had already received a com- 
 munication from Mr. Wickham on this subject, and in- 
 tended to have informed him that he would write for all 
 the papers which were wanted (and he had no doubt he 
 should obtain them) if the court judged them material. 
 The fact was that he had already in his possession Mr. 
 Randolph's correspondence with Mr. Smith, and the 
 order from the navy department ; but in his own opinion, 
 they no more related to the present prosecution than the 
 first paragraph of the first page of the acts of congress. 
 
 Mr. Hay repeated that if the gentlemen would furnish 
 him with a list of such papers as they wanted, he would 
 attempt to obtain them, if the court thought them ma- 
 terial. Of what use were they? Were they too to be laid 
 before the grand jury, to distract their attention, and to 
 present, under another point of view, another subject 
 for their consideration ? He had supposed, that the 
 mass of matter to be laid before them was large enough 
 already. 
 
 Chief justice observed that it was impossible to deter- 
 mine their use, without hearing them. He would much 
 rather that the counsel on both sides should make an 
 arrangement with each other suitable to them both ; and 
 that the court itself was not now disposed to make any 
 arrangement ; but if the parties could not come to any
 
 MOTION TO PRODUCE PAPERS. 
 
 97 
 
 agreement, he should then wish to hear some argument 
 on the subject to satisfy him whether the court had the 
 right to issue a subpoena duces tecum. 
 
 Mr. Burr observed that he had been told it was the 
 constant practice in this state to issue such subpoenas l 
 upon the application of a party. 
 
 Chief justice had no doubt it was the custom to do it, 
 where there was no great inconvenience to the party 
 summoned ; that it seldom occurred ; but that he was 
 inclined to think, where great inconveniences would result 
 to the party summoned, that the materiality of his testi- 
 mony should be fully shown. If papers are to be ob- 
 tained from a clerk's office, such a subpoena may be issued, 
 and though not upon affidavit, yet where there has been 
 good cause shown. 
 
 Mr. Martin said that there would be no inconvenience, 
 as the president might just transmit the papers wanted 
 by mail. 
 
 Mr. Hay observed that Mr. Martin's remark super- 
 ceded any further proceeding. Why apply to the court 
 to issue a subpoena to the president, unless perhaps it 
 was the necessary form for obtaining the papers. 
 
 Chief Justice. The reason is that in case of a refusal 
 to send the papers, the officer himself may be present to 
 show cause. This subpoena is issued only where fears of 
 this sort are entertained. 
 
 Mr. Hay said that no application had yet been made 
 to the secretary of state, for General Wilkinson's letter ; 
 nor to the department of war, for its order. 
 
 Mr. Martin. If one department refuses, we may pre- 
 sume that the others will. 
 
 Mr. Burr. If the gentleman grants our demand, he 
 may propose any alteration in its form that he pleases. 
 
 Mr. Randolph. If any arrangement can be made to 
 obtain these papers, we would rather that it should be a 
 voluntary act on the part of the government. 
 
 Mr. Hay. I will attempt to obtain these papers ; 
 any, in fact, that gentlemen may want, if the court will, 
 but say they are material. 
 
 Mr. Wickham. Mr. Burr's counsel know little of the 
 importance of these papers, but from himself ; and from 
 that, they are fully persuaded of their great importance. 
 7
 
 98 TRIAL OF AARON BURR. 
 
 The attorney for the United States says that so far as 
 his personal exertions will go, he will attempt to obtain 
 them, and firmly believes that his application will be 
 successful. But, sir, at Washington they may entertain 
 very different views from himself. Under such circum- 
 stances it is better to encounter the delay of three or 
 four days to obtain the authority of this court, than 
 trust to an expedient which may be unavailing. But I 
 see no necessity for any such delay, as the order may at 
 once issue by consent of parties. As to the order from 
 the navy department, a copy may be sufficient ; the 
 original is already gone out. As to Wilkinson's letter, 
 we wish to see itself here ; and surely it may be trusted 
 in the hands of the attorney for the United States. 
 
 Mr. Hay. It seems, then, that the copies of papers 
 from the government of the United States will not be 
 received. They are not to be trusted. After such an 
 observation, sir, I retract everything that I have prom- 
 ised ; let gentlemen, sir, take their own course. 
 
 Mr. Wickham. We wish to confront him with his 
 own letter. 
 
 Mr. Hay. Perhaps they may not be able to remove 
 the original, as it is already filed in the department of 
 state. 
 
 Mr. Martin. We are ready to go on with the dis- 
 cussion. 
 
 Mr. Wickham. The president's message mentioned 
 that this was a letter to himself. 
 
 Mr. Hay. I hope the court will remember that 
 remark. The letter these gentlemen, then, want is ad- 
 dressed to Thomas Jefferson. Have they a right to 
 demand any but public letters? 
 
 Mr. Martin. The president's message said it was 
 addressed to him as president of the United States. 
 
 Mr. Hay. If it be a public letter, it is of course 
 deposited in the department of state. I have no objec- 
 tion to repeat my promise to apply for these papers if the 
 court thinks them material; and when the business 
 arrives at the proper stage they may then be produced. 
 I hope that no more time will be wasted in these prelimin- 
 ary stages ; and that such arrangements may be adopted 
 as will prevent this useless consumption of time.
 
 MOTION TO PRODUCE PAPERS. 99 
 
 Mr. Randolph had no reason to believe that there had 
 been more delay on his side than on the other ; that if 
 time was to be consumed at all, more would be em- 
 ployed in removing greater difficulties than had already 
 been done; that he, however, only hinted at this now. 
 He declared with Mr. Wickham his perfect concurrence 
 in this measure. 
 
 Mr. Botts. We are unanimous on this point, I am 
 sure. Sir, I can not sit down and hear complaints 
 so unnecessarily repeated about the waste of time. It 
 is time, sir, to be done with them. It is time that we 
 should enjoy something like the liberty of speech. Mr. 
 Hay makes, I think, about a dozen times as many 
 speeches as any other gentleman ; and each speech 
 longer than those of other persons; and yet we can not 
 open our mouths, without his sounding loudly his com- 
 plaints to the ears of this hall. On this case of unequal 
 magnitude, shall we not be suffered to declare our opin- 
 ions without this unnecessary complaint about the con- 
 sumption of the court's time? We feel the magnitude 
 of our duties, and we shall firmly discharge them in 
 spite of Mr. Hay. It is obvious to you, sir, and to every- 
 body, that the delay is not with us. If, sir, you call for 
 an argument, we are ready to proceed : but if you are 
 satisfied, we shall be silent. 
 
 Chief Justice. If the attorney for the United States 
 is satisfied that this court has a right to issue the sub- 
 poena duces tecnm, I will grant the motion. 
 
 Mr. Hay. I am not, sir. 
 
 Chief justice. I am not prepared to give an opin- 
 ion on this point, and, therefore, I must call for an 
 argument. 
 
 Mr. Hay. When I said that there had been a great 
 consumption of time, I certainly did not mean to insin- 
 uate that they only consumed it. I have certainly had 
 my full proportion. I thought, however, that my prop- 
 osition would have saved some time ; and I am still will- 
 ing to repeat my promise. 
 
 Mr. Randolph. That the court may understand us, I 
 will read to them the form of the subpoena which we 
 wish to obtain. [Here Mr. Randolph read the sketch 
 before him.]
 
 ioo TRIAL OF AARON BURR. 
 
 Mr. Botts. We will be under the direction of the 
 court, whether we shall proceed in the argument to-day 
 or to-morrow. 
 
 Chief Justice. Unquestionably there must be an ar- 
 gument, if the attorney for the United States disputes 
 the authority of the court to grant the motion. 
 
 Mr. Hay. Whatever other gentlemen may think on 
 this subject, I have not the least doubt that these papers 
 will be produced, because Mr. Robert Smith has volun- 
 tarily furnished me with the order of the navy depart- 
 ment. But although I may procure these papers, let it 
 be distinctly understood, that I shall object to their being 
 unnecessarily produced. 
 
 Mr. Botts. It will take four days at least to inter- 
 change letters between this city and Washington, and 
 two or three days to copy the papers, so that six days 
 will be totally lost to us. In the meantime, thirty or 
 forty witnesses, and sixteen grand jurymen (they might, 
 perhaps, require them) would be detained here ; and after 
 all, the attorney's application to the government might 
 be unavailing. 
 
 Mr. Hay. Since the gentlemen, sir, will press this 
 subject, I ask no more than that they will waive this dis- 
 cussion till to-morrow. 
 
 The court was then adjourned till to-morrow eleven 
 o'clock. 
 
 WEDNESDAY, JUNE 10, 1807. 
 
 The court met according to adjournment. 
 
 The subject of the subpcena duces tecum was resumed. 
 
 The following affidavit, drawn up and sworn to by Mr. 
 Burr, was read, in support of the motion for the subpoena. 
 
 " Aaron Burr, maketh oath that he hath great reason 
 to believe that a letter from General Wilkinson to the 
 president of the United States, dated 2ist October, 
 1806, as mentioned in the president's message of the 22d 
 January, 1807, to both houses of congress, together with 
 the document accompanying the said letter, and copy 
 of the answer of said Thomas Jefferson, or of any one 
 by his authority, to the said letter, may be material in 
 his defense, in the prosecution against him. And fur-
 
 MOTION TO PRODUCE PAPERS. 101 
 
 ther, that he hath 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 the New 
 Orleans station, touching or concerning the said Burr, 
 or his property, will also be material in his defense. 
 
 "AARON BURR. 
 
 " Sworn to in open court, loth June, 1807." 
 Mr. Hay begged leave to give notice to the court and 
 the opposite counsel that in conformity to the informa- 
 tion which he had yesterday given, he had addressed a 
 letter to the president, stating the motion that was to be 
 made this day, and suggesting the propriety of sending 
 on the papers' required ; but reserving to himself the 
 right of retaining them, till the court saw them, and de- 
 termined their materiality. He hoped to have them in 
 his possession in five days. He should, however, object 
 to the affidavit produced, and to the right of Mr. Burr 
 to make the motion at the present time. It was a pre- 
 liminary question, which he wished first to be deter- 
 mined, whether any man, standing in Mr. Burr's situation, 
 had a right to make such a motion. He believed the 
 fact to be that if these papers should ever come to hand, 
 they would not go out of the hands of the court ; for he 
 was satisfied that they could not be material in this case, 
 from the substance of one of those very papers, which 
 was already in his possession. He wished not to waste 
 the time of the court ; but there were several preliminary 
 points, which he should be obliged to submit to their 
 consideration; and before the discussion could be ended, 
 the papers would be here. He confessed himself ex- 
 tremely unwilling to enter into any discussion on these 
 papers. Gentlemen might take it for granted, if they 
 pleased, that he felt a disinclination to furnish them with 
 these papers ; but the fact was not so. Gentlemen ought 
 themselves to have applied for them ; for he was satisfied, 
 from the character of the government, that every neces- 
 sary paper would have been cheerfully supplied. He had 
 no doubt the court, and even the opposing counsel, 
 would acquiesce in the same opinion. He trusted that 
 the present motion was not made to show the talents of 
 gentlemen ; he assured them that if General Wilkinson
 
 102 TRIAL OF AARON BURR. 
 
 should come, they would have a splendid opportunity 
 of displaying them to their hearts' content. He re- 
 quested them once more to deliberate on his propo- 
 sitions. 
 
 Mr. Martin assured the gentleman that there was no 
 need for further deliberation ; that it was strange that 
 the gentleman should complain so much of the con- 
 sumption of time, at the very moment when he spoke of 
 the long period he should require for this discussion, 
 and the many preliminary points which he had to sub- 
 mit. The gentleman, too, had spoken warmly of certain 
 impressions and opinions, and even of our own ; but he 
 trusted that the gentleman would leave it to themselves 
 to declare their own impressions ; that it was impossible 
 for him to search their hearts, and that he was sure that 
 nothing that had yet fallen from them justified the eulo- 
 gies upon the government, which he had been kind 
 enough to attribute to them. 
 
 Mr. Wickhatn observed that Mr. Hay had promised 
 the appearance of these papers ; and that was all they 
 wanted. The object was not to bring the president 
 here, but to obtain certain papers which he had in his 
 possession. That the effect of the process required, was 
 the result promised by Mr. Hay. As to the objection 
 that part of the papers were confidential, would it not 
 be easy to make an indorsement on such as the president 
 would not wish to go out of the court ? That, however, 
 Mr. Hay's promises might be unavailing : at Washing- 
 ton they might entertain very different views from him. 
 As to the opportunity of displaying talents, nothing 
 would be better calculated to defeat that object than for 
 the attorney for the United States to give his consent 
 that process should issue. 
 
 Mr. Hay. The motion now made by Mr. Burr, as far 
 as he could understand it, was to obtain from the court a 
 subpcena to the president of the United States, to attend 
 this court with an original letter written to him by General 
 Wilkinson, and referred to in his communication to con- 
 gress, of the 2/th January, 1807. He contended that it 
 was premature ; that Mr. Burr was not authorized to 
 make it by any legal precedents that could be shown, or 
 by any statute in force in this country, while he remained
 
 MOTION TO PRODUCE PAPERS. 103 
 
 in his present situation. What was that situation ? He 
 had been committed for a misdemeanor, and recognized 
 to appear before this court ; in consequence of which he 
 was now present. No bills had yet been sent to the 
 grand jury. In this situation Mr. Burr applies to 
 this court for a compulsory process or a subpoena duces 
 tecum, to the president of the United States, command- 
 ing him to attend with certain papers, and if he does 
 not attend, or the papers are not produced, the court 
 may then be applied to, to issue an attachment against 
 him. 
 
 Now, I contend, said Mr. Hay, that no individual 
 charged with a crime, has any right to legal process, 
 until the grand jury have found a true bill, and the pros- 
 ecutor has announced his intention to proceed there- 
 upon. Gentlemen will please to point out in the con- 
 stitution of the United States, in the laws of congress, or 
 in the common law, the smallest right to make this 
 motion. They will search in vain in the various 
 materials and reports of the common law, for a prece- 
 dent to justify this attempt. The acts of congress supply 
 them with no authority ; and there is nothing in the 
 constitution which relates to the subject, except the 
 eighth amendment, which most obviously refers to a dif- 
 ferent stage of the prosecution from this. " In all crim- 
 inal prosecutions, the accused shall enjoy the right to 
 a speedy and public trial, &c.- -to have compulsory 
 process for obtaining witnesses in his favor, and to have 
 the assistance of counsel for his defense." Will gentle- 
 men contend that this clause relates to any of the prelim- 
 inary steps of the prosecution, before the prosecution 
 itself is commenced by the finding of the bill ? This 
 clause was never intended for any of the preliminary 
 steps : the arrest, transportation, or examination of the 
 accused. Its object was to secure to every man the 
 benefit of a " a fair and impartial trial," not on the ex- 
 amination before the examining magistrate, but on the 
 trial before the petit jury. When the trial commences, it 
 is then that the accused is to be confronted with the wit- 
 nesses against him ; it is then that he is entitled to com- 
 pulsory process for obtaining witnesses in his favor; it 
 is then that he is to have counsel for his defense. It is
 
 104 TRIAL OF AARON BURR. 
 
 true, sir, that in this first stage (incipient stage as it is 
 called in fashionable phrase) Aaron Burr has already not 
 one counsel, but four ; and not only counsel in this dis- 
 trict, but celebrated counsel from other states. It is 
 true also, that the clerk of this court has already issued 
 subpcznas ; but these subpcenas were gratuitous, and had 
 they been refused, there was no law to compel him to 
 grant them. But do all these circumstances prove that 
 Aaron Burr has authority at this stage of the business to 
 make the present application to the court? But let us 
 suppose that they have obtained what they require ; 
 that this subpana has issued, and that the president is , 
 here : that he has been called to this court from Wash- 
 ington, where national concerns of such deep weight 
 and importance are entrusted to his guidance ; what 
 then? 
 
 Mr. Wickham begged leave to interrupt Mr. Hay. It 
 was not in fact a subpcena for the president, but only for 
 certain papers which they required. 
 
 Mr. Hay. Even that supposition does not remove 
 the prematurity of the present motion. I ask what is to 
 be done with these papers, if brought hither by this 
 subpoena ? If the president were to come here with them 
 in his pocket, I will say nothing of the manifest and 
 many inconveniences which his absence from the seat of 
 government might occasion, but I ask what would be 
 done with these papers? The gentleman can not answer 
 this question. / only am competent to answer. And 
 why? Because no kind of use can be made of this evi- 
 dence until I have laid my bills before the grand jury, 
 and until they have found them to be true. Will gen- 
 tlemen proceed on such calculations ; that the bills will 
 be sent up and that they will certainly be found to be 
 true bills? If General Wilkinson comes (and that he 
 will I can entertain no doubt, from the intelligence I 
 have heard this morning), the prosecution will certainly 
 progress ; and in that case only can these papers be 
 wanted. 
 
 There is another little difficulty in this case. When is 
 this process to be made returnable ? Some day must be 
 named ; but can the court possibly name any day, when 
 the witnesses or the papers shall be wanted ? Do the
 
 MOTION TO PRODUCE PAPERS. 105 
 
 records of this court indicate any particular day when 
 the trial is to commence ? Sir, such a nomination would 
 be completely arbitrary. Let an indictment be first 
 found, and a day set for the trial ; and on that day pro- 
 cess may be made returnable. But, sir, if a day could be 
 fixed, it does not appear that this testimony will be 
 wanted during this term. It depends on the arrival of 
 General Wilkinson. It literally depends on the winds 
 and the waves. The very language of the process Con- 
 firms this argument. How could the evidence be heard 
 before the accused is put upon his trial ? Perhaps it 
 may be said that this evidence will be wanted in case we 
 repeat our motion to commit Aaron Burr for high 
 treason, and which we certainly shall attempt, if General 
 Wilkinson does not make his appearance. On this point, 
 two remarks only are necessary to be made. The first is, 
 that no such motion is actually before the court. And 
 the second is that if such motion were made, the court 
 would have no right to issue process before the trial. 
 The court has no more rights for this purpose than an 
 individual magistrate would have ; and in fact it was 
 only a very few days ago that the court did actually 
 consider themselves placed in this very situation. Now, 
 if such an application had been made to your honor out 
 of doors, is there any law in America (or in any other 
 part of the civilized world) to justify a postponement of 
 the examination until a subpocena has been granted ? It 
 is true that evidence on both sides has been sometimes 
 produced; but this took place when the evidence hap- 
 pened to be present ; but there does not exist a single 
 precedent, in all the annals of jurisprudence, where the 
 course of an examination has been suspended by an ap- 
 plication for subpcenas, and the writing for the witnesses. 
 The present motion, therefore, is manifestly premature. 
 Mr. Hay. confessed that his object was to save time; he 
 was confident that the documents would be forwarded 
 in a much shorter time than they could possibly obtain 
 them by this process. Why were they not sooner ap- 
 plied for? Though there had been some correspondence 
 between Mr. Randolph and Mr. Smith, about an order 
 from the navy department, yet never before yesterday 
 was the materiality of General Wilkinson's letter sug-
 
 io6 TRIAL OF AARON BURR. 
 
 gested ; although it had been publicly known to exist as 
 long ago as the 2/th of January. The accused and his 
 counsel -knew this, yet they never made any attempts to 
 obtain it, or ever stated its materiality. 
 
 Mr. Wick ham would not inquire, whether it was the 
 object of the gentleman to save or to obtain time; 
 though probably the last, as gentlemen seemed very 
 solicitous to send on a messenger to Washington, to ob- 
 tain instructions directing them how to act ; but if the 
 saving of time was an object with the court, the course 
 which he recommended was the best calculated to obtain 
 it. It was the shortest way to resort at once to that 
 expedient, which must be at least employed, if the ex- 
 pectations of the attorney for the United States should 
 turn out to be fallacious, and his application at Washing- 
 ton should prove to be unavailing. The clerk himself, 
 if called upon for subpoenas, must issue them absolutely. 
 It was the practice, and it was the law ; but instead of 
 applying to the clerk, they deemed it necessary, in a case 
 of such importance, to make their application directly to 
 the court. They were more willing, too, to prefer this 
 course, as they did not wish the presence of the presi- 
 dent, but only of certain papers ; and it was not there- 
 fore their wish to obtain a common subpoena for his 
 person, but a subpoena duces tecum for those papers. 
 
 This is the first time I have heard, since the declara- 
 tion of American Independence, that an accused man is 
 not to obtain witnesses in his behalf. What has the 
 gentleman himself done? Are there not witnesses 
 present whom he has summoned, under the authority of 
 this court, and at his own special instance ? And will he 
 at last admit that there is to be no kind of equality be- 
 tween the accused and the prosecution ; and that we are 
 to remain here perfectly mute, and bound hand and foot, 
 to await the decision of his own witnesses? 
 
 But at what time are we to be entitled to these priv- 
 ileges ? At the period of Mr. Burr's transportation? 
 That is a most unwarrantable proceeding ; there is no 
 such case recognized by the constitution ; and therefore 
 there could be nothing in that constitution to give us the 
 ri^ht of founding any judicial proceeding on such a step, 
 But, sir, such an illegal transaction entitles us to still
 
 
 MOTION TO PRODUCE PAPERS. 107 
 
 more ; it entitles us to the protection of every citizen in 
 the country, as well as of this court. Suppose that Mr, 
 Burr were now put on his examination ; would he not 
 have a right to examine any witnesses who were beyond 
 the bar; and of course to subpoena every man who would 
 be brought before you during the term of examination ? 
 This practice is every day pursued by judges and magis- 
 trates in superior and inferior courts. Why not in the 
 present case ? 
 
 It has been said that there is nothing in this country 
 to justify such an application ; that there are no prece- 
 dents. But I will quote, sir, another trial, which was 
 similar in its proceedings, and similar, I trust, in its re- 
 sults. I refer to the cases of Smith and Ogden, before 
 the circuit court of New York. Subpoenas were actually 
 taken out, before the trial, for Messrs. Madison and 
 Dearborn ; and even the expenses of their traveling 
 were tendered to them ; but the proceedings did not 
 even stop here. For a motion for an attachment was 
 made before the court, founded upon the proof of serv- 
 ing these subpoenas, and the proof of offered compensa- 
 tion. The argument at length closed on this motion for 
 attachment ; but no man doubted the right of the court 
 to issue subpoenas. The only question was, whether at 
 that time, an attachment ought to issue. The court was' 
 unanimous about the right of subpoenas : but on the at- 
 tachment, they were divided ; Judge Patterson being for 
 it, and Judge Talmadge against it. 
 
 We are, however, asked, sir, for what purpose do we 
 wish to procure this evidence? It is at their option to 
 say, whether bills shall be laid before the grand jury or 
 not. Granted, sir, it is in the power of the attorney for 
 the United States to send up his bills or not. But 
 should these bills be found true, and the trial come on, 
 may we not be ruled to trial instanter, and without the 
 aid of our witnesses? But what was done the other day, 
 may hereafter be repeated. Witnesses are introduced 
 on behalf of the United States, and others perhaps 
 would have been on the motion for commitment. This 
 motion is for the present only suspended ; but if that be 
 the case, may not the testimony now required, be relevant 
 to our defense? The attorney for the United States
 
 io8 TRIAL OF AARON BURR. 
 
 triumphantly declares that we must do as he pleases ; 
 and that we know not what he intends to do. That is 
 true, sir; but may not we, too, do something? May not 
 Mr. Burr move for his discharge? As he is to remain 
 here until the court pleases to discharge him, may he 
 not move for his recognizance to be discharged? Have 
 we no right also to all the the means which are necessary 
 for the fair administration of justice ? 
 
 " No time is stipulated for the return of the subpoena" 
 This is a great difficulty indeed ! It will be admitted, 
 then, that the court has a right to issue a subpoena ; and 
 yet, because there happens to be particular provision 
 about the day, this right must be necessarily null. But, 
 sir, is this objection really justified by practice ? Has 
 not the court a right to fix a day for the return of the 
 processes of this sort, according to their own convenience, 
 or the convenience of parties? 
 
 But why have we not applied for these documents 
 sooner? Yes, sir, it is asked of us, why we have not 
 made this application sooner; and yet even now does 
 the gentleman wish to delay it. He declared that we 
 have made it too soon ; and yet now he declares that 
 we have made it too late. Now, it can not be both . 
 if it be too late, it certainly can not be too soon. 
 
 We have heard some remarks upon Mr. Burr's priv- 
 ileges ; and among others, upon the four counsellors who 
 are to defend him. But what kind of an argument is 
 this? If we turn to the laws of congress, we shall find, 
 there is one attorney for the United States appropriated to 
 each district ; and yet there are no less than three coun- 
 sellors employed on the present occasion. No doubt 
 there is a law providing for the payment of the two 
 others out of the treasury ; but with what propriety can 
 these gentlemen complain of my client making such ar- 
 rangements as may suit his convenience or his interest ? 
 But what are all these remarks to the subpoena duces 
 tecum? Sir, it is useless to multiply arguments on this 
 subject. It is a settled rule, since the ancient times of 
 King John ; since the formation of magna charta itself, 
 that the accused has a right to subpoena witnesses ; and not 
 only to any other form, but subpoena duces tecum, under 
 such modifications as the court may please to prescribe.
 
 MOTION TO PRODUCE PAPERS. 109 
 
 Mr. Martin read an extract from the case of Smith 
 and Ogden, in New York, about issuing an attachment. 
 
 Mr. Hay asserted that this extract did not prove the 
 position contended for; that there was no case of a sub- 
 poena having issued before the finding of an indictment ; 
 that if the clerk ever had issued them, it was a mere 
 voluntary unauthorized act. He challenged the ex- 
 perienced gentleman from Maryland to cite a single 
 instance of an application to a court for subpoenas, before 
 the finding of a bill of indictment. 
 
 Mr. Martin replied that if there were no precedents 
 on this very point, it was because this objection never 
 was made before, and he hoped never would be made 
 again. 
 
 The chief justice observed that he would not at pres- 
 ent deliver any decided opinion upon the point, though 
 he was disposed to believe that the accused had a right to 
 apply for subpoenas. He cited the case of a man, who had 
 been some time before brought before him and condemned 
 for counterfeiting bank notes. In that case the prisoner 
 had attempted to delay the trial by pretending that he 
 had witnesses in Baltimore; which plea had been rejected 
 by the court, principally on the ground that he had not 
 before summoned those witnesses. The chief justice, 
 however, observed that he should not decide this ques- 
 tion at present, but reserve it for future decision ; in the 
 meantime the counsel might proceed with the other part 
 of the argument. 
 
 Mr. Martin then rose to support the propriety of 
 granting this particular subpoena. He laid down as a 
 general principle, in all civil or criminal cases, that every 
 man had a right to process to establish his rights or his 
 innocence. MacNally's Evidence, vol i. p. 255. Does 
 there exist a single case in the British authorities in 
 opposition to this doctrine? Surely these gentlemen do 
 not intend to represent .the president as a kind of sove- 
 reign, or as a king of Great Britain. He is no more than 
 a servant of the people. But even the British king may 
 be called upon to give testimony to his people. It is 
 true, he is not obliged to be subpoenaed, and to appear in 
 a court of justice ; but his testimony under his sign man- 
 ual is received as authentic evidence.
 
 i to TRIAL OF AARON BURR. 
 
 Chief Justice. The counsel on the opposite side admit 
 that the president may be summoned. 
 
 Mr. Martin. They have surely never admitted it 
 before. However, I am happy that is now admitted, as 
 it will spare me a part of my argument. I will proceed 
 then to the others. The next question is, whether the 
 president can be summoned to attend with certain 
 papers. One of them we want is an original letter from 
 General Wilkinson, of the 2 1st October, and received by 
 the president on the 2/th of November. This letter, as 
 appears by Mr. Burr's affidavit, is considered by him as 
 necessary to his defense ; and his counsel, so far as they 
 understand the subject, are of the same opinion. The 
 other papers are copies of official orders by the navy and 
 war departments. It may be said, sir, that if application 
 were made to those departments, Mr. Burr had a right to 
 the papers : for we had supposed that every citizen was 
 entitled to such cqpies of official papers as are material to 
 him. And I have never heard of but one instance where 
 they were refused ; and this was most certainly under 
 presidential influence. 
 
 I have asserted that Mr. Burr was entitled to a copy of 
 these orders. We intended to show that these orders 
 were contrary to the constitution and the laws, and that 
 they entitled Mr. Burr to the right of resistance. We 
 intended to show that by this particular order his prop- 
 erty 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, on 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 apply 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 can not 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 pre- 
 judge my client by declaring, that " Of his guilt there
 
 MOTION TO PRODUCE PAPERS. in 
 
 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 coun- 
 try 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 this absurd clamor, pretend to keep 
 back the papers which are wanted for this trial, where 
 life itself 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 for his defense. And whoever with- 
 holds, willfully, information that would save the life ot a 
 person charged with a capital offense, is substantially a 
 murderer, and so recorded in the register of heaven. 
 Can it then be presumed that the president would be 
 sorry to have Mr. Burr's innocence proved ? No, it is 
 impossible. Would the president of the United States 
 give his enemies (for enemies he has, like other great and 
 good men) would he give them the proud opportunity of 
 saying that Mr. Burr is the victim of anger, jealousy, and 
 hatred ? Will he not act with all possible candor ? 
 When told that certain papers are material to our de- 
 fense, will he not be proud to say to us, " Sirs, you may 
 have them ; I will grant you every possible advantage." 
 Had this been done, the attorney for the United States 
 (and perhaps the executive) never would have said that 
 these papers are no more material to us than the first 
 paragraph of the laws of congress. These gentlemen 
 forget that it is not their province to decide whether the 
 evidence is material to us or not. It is for the court to 
 say whether it bears upon the case ; and whether it is to 
 go before the petit jury, or to come before themselves, if 
 the motion to commit for treason be continued. 
 
 They seem to think that we are not even to be trusted 
 with these papers. But why do they attribute motives 
 to Mr. Burr's counsel, which they would themselves 
 disdain ? Why not do as much honor to ourselves, as to 
 the president of the United States himself? 
 
 It may be suggested that this is a private and con- 
 fidential letter from General Wilkinson to the president. 
 It was so said, indeed, yesterday. But if the president
 
 ii2 TRIAL OF AARON BURR. 
 
 were here himself, the court would have a right to de- 
 mand, whether in confidential conversations General 
 Wilkinson had not given very different statements from 
 those which he might here produce ? What, sir, if 
 General Wilkinson had reposed as much confidence, if 
 he had instilled as much poison into the ear of the pres- 
 ident, as Satan himself breathed into the ear of Eve ; the 
 president would have been still responsible to a court of 
 justice, and bound to disclose his communications. Th.e 
 law recognizes none of this kind of confidence. I refer 
 your honors to 2 Atkins, 524, from which it appears 
 that no man is privileged to withhold secrets, and to 
 II State Trials, Duchess of Kingston's case. There a 
 physician entreated of the court to excuse him ; but 
 even his professional confidence (though of the most 
 delicate nature) would not screen him. Lord Barring- 
 ton in that case conjured them to excuse his giving in 
 testimony what had been disclosed to him in all the con- 
 fidence of private friendship. All his solicitations were 
 disregarded. In MacNally, page 250, it is declared that 
 there can be no secrets, but those which are confided to 
 counsellors and attorneys. Now let us suppose that this 
 information was conveyed to him by a letter ; nay, by a 
 private and confidential letter. Could we not have the 
 president produced here; could we not examine him, 
 whether he had ever received such a letter ? 
 
 But perhaps we shall be told that this would be mak- 
 ing too free with high characters ; that we call the 
 honor of General Wilkinson into question ; and that it 
 is not less than treason to suppose it possible that Gen- 
 eral Wilkinson is not as pure as an angel. But, sir, will 
 it be forgotten that this man has already broken the 
 constitution to support his violent measures ; that he 
 has already ground down the civil authorities into dust ; 
 and subjected all around him to a military despotism ? 
 Is it possible to believe that such a man may not swerve 
 from the strict line of rectitude and decorum ? To show 
 the ease with which one man may be destroyed by 
 another man or by a faction, and with the same unfeel- 
 ing indifference as a philosopher sees rats struggling in 
 an air pump, I will read a quotation from Tucker's 
 Blackstone. [Here he read it.] Mr. Martin produced
 
 MOTION TO PRODUCE PAPERS. 113 
 
 several instances, where the originals of recorded papers 
 were brought before a court of justice. 
 
 Respecting copies of the navy orders for destroying 
 the property and person of Mr. Burr, it is very material 
 to possess them. It may be necessary to show that 
 these acts, which the prosecutors are pleased to deem 
 treasonable, were in fact nothing but justifiable means 
 for defending his own rignts. 
 
 Mr. Mac Rae. May it please the court : I regret ex- 
 tremely that on a question so simple, and so eminently 
 divested of all personal feelings, as the present, the 
 counsel for the prisoner should have considered it as 
 their duty to wander so widely from the subject before 
 us. I could have wished, sir, that instead of talking 
 about shadows; instead of complaining against certain 
 pretended persecutions attributed to the government of 
 the United States; instead of indulging in defamation 
 and abuse against the officers of government, which can 
 neither be justified nor excused, they had confined their 
 observations to the single and simple question now pre- 
 sented to your consideration. Whether this court had 
 the right to issue a subpoena duces tecum, addressed to 
 the president of the United States? I will not, sir, 
 imitate the example which has been thus bountifully set 
 me, however ample may be the materials, or however 
 rich the harvest which is now spread before me. What- 
 ever I may think of the guilt of Aaron Burr ; by what- 
 ever emotions of disgust and indignation my bosom may 
 be agitated by a contemplation of his conduct, I will 
 attempt to suppress my opinions and feelings for the 
 present. The time may come, sir, when I shall be at 
 full liberty to give them loose. When Aaron Burr shall 
 be put upon his trial ; when he shall attend at your bar 
 as a dangerous and indicted criminal, I shall not hesitate, 
 sir, in the presence of the petit jury, in the presence of 
 this court, and in the presence of the whole world, to ex- 
 press all my opinions and feelings. But, sir, I shall 
 waive this privilege for the present. I can not but con- 
 sider it as highly indecorous, when contemplating this 
 single question, to embrace all the merits of the case. 
 Mr. Martin need not have talked so much of the presi- 
 dent's elevation. He need not have taken such uncom 
 8
 
 ii 4 TRIAL OF AARON BURR. 
 
 mon pains to expatiate upon the high office which he 
 fills, nor so invidiously compare it with the irresponsible 
 monarchy of England ; as if the present president con- 
 sidered himself superior to the laws. Although, in this 
 country the decisions of our courts may be considered as 
 doubtful, it is perhaps certain that a subpoena ought not 
 to go against him ; yet, sir, anxious to show to the world 
 that we feel nothing of that spirit of persecution which 
 has been so industriously and idly attributed to our 
 government ; solicitous to give an unerring proof of the 
 principles on which we act, we shall not shelter our- 
 selves under these precedents established by the courts 
 of the United States. Elevated as our illustrious pres- 
 ident is, yet our principles are, that when life is in jeop- 
 ardy, he may be summoned like any individual, where 
 he is able to disclose important facts, and when the 
 national interests will admit of his attendance. As, 
 then, we admit that a subpczna may issue against him as 
 well as against any other man, where was the necessity of 
 expatiating so widely 'upon his elevated station ? When 
 all the facts which relate to this transaction come to be 
 fully developed ; when truth, and not passion, shall 
 guide our understanding, I do not hesitate to affirm my 
 belief, that the bolt which has been leveled against his 
 reputation will vanish into air. I am sorry, sir, to be 
 under the necessity of making such remarks as these, 
 but let the blame fall where it is due, upon the gentle- 
 man from Maryland, who has extorted them, and not 
 upon myself. And here, sir, permit me to read the affi- 
 davit on which this motion is grounded. I do not un- 
 derstand from this affidavit, that any other order is 
 required from the navy department, than the one which 
 was addressed to Commodore Shaw, and is said to have 
 been published in The Natchez Gazette. That order is 
 already in court ; and the attorney for the United States 
 has pledged himself to produce it, if the court will but 
 decide on the propriety of its exhibition. The only 
 new paper, therefore, which is required by this affidavit 
 is the original letter of General Wilkinson to the presi 
 dent of the United States. 
 
 Mr. WickJiam here observed that the gentleman had 
 mistaken the object of the application. We not only
 
 MOTION TO PRODUCE PAPER&. 115 
 
 (said he) want this letter, but the order of the navy 
 department. They tell us they have the order, and 
 are ready to produce it ; but we doubt the identity of 
 this copy. Without meaning any imputation upon Mr. 
 Smith, we say -that they have several orders from his 
 department. Let us see this order, then, and we may 
 ascertain whether it be the identical one which we want. 
 Let us but inspect the order which these gentlemen 
 have in their possession, and if it be the one which we 
 require, the process to be issued may be made more 
 limited in its operation. 
 
 Mr. Hay. The secretary of.the navy inclosed this 
 order to me ; for what purpose I know not, unless it was 
 for the sake of showing it. But as I am not particularly 
 instructed on this point, I do not conceive myself au- 
 thorized to produce it at present. I will exhibit this 
 paper if the court thinks it material. 
 
 Mr. Wickhani. We have a right to apply to the 
 president of the United States for the copy of any order ; 
 but if it is alleged to be a state paper, it must not be 
 refused on the allegations of counsel, but on the oath of 
 the officer. 
 
 Mr. Mac Rae. Is your subpoena, then, to be addressed 
 to these other officers ? 
 
 Mr. WickJiam. No, sir, to the president alone, who 
 has all these offices under his control. 
 
 Mr. Mac Rae. I will attempt to satisfy the court thai 
 the counsel have not grounded their motion upon this 
 affidavit. [Here Mr. Mac Rae read the affidavit.] " May 
 be material to his defense." Now, sir, how is this ? I 
 had always understood before, that all applications of 
 this kind must be founded upon positive averment ; that 
 the party was not at liberty to state vague and loose con- 
 jectures, but that he must give undoubting assertions: 
 and what was still further, that he should swear that 
 these documents were material to his defense. The oath " 
 is not, that they may possibly be of use : that they may 
 or may not be material. On this subject it is not merely 
 sufficient to advance some precarious conjectures ; but 
 the party must explicitly state his belief, not that they 
 may be, but that they are material. Nay, still further, 
 in criminal cases, the party is not merely required by the
 
 n6 TRIAL OF AARON BURR. 
 
 court to say that they are material, but to say in what 
 respect they are so. In these points, then, this affidavit 
 is essentially defective. It certainly does not state how 
 these documents are material ; it does not even assert 
 that they are material, but only advances a conjecture 
 that they may be so. 
 
 I believe, sir, on the authority of a decision of the 
 court of the United States, in the case of Cooper of 
 Northumberland (p. 13 of the report of the trial), it 
 may be shown that the present party has no authority 
 to demand these papers. 
 
 And, sir, the case of Cooper was materially distin- 
 guished from the one before the court, in this important 
 feature, that the public officers were in the very city, and 
 on the very spot where the trial was conducted. The 
 seat of government was then at Philadelphia, and not at 
 Washington. This case, sir, was well known to every 
 individual who was interested in the politics of those 
 times. It is sufficient merely to repeat, that Cooper was 
 sued for a libel ; that he put in two pleas : first, not 
 guilty: secondly, justification; and that in order to sup- 
 port his plea of justification, he applied to the court for 
 a subpfsna to the president of the United States to obtain 
 certain public documents. And what did the judge 
 decide ? He decided that the subp&na ought not to 
 issue, and declared in strong terms against the principle 
 now contended for. 
 
 But, sir, strong as that opinion is in our favor, and 
 though it completely goes to deprive the prisoner of 
 the privilege which he claims ; and though it is to be con- 
 sidered as law in the courts of the United States ; yet, 
 sir, abhorring anything that looks like persecution, we 
 should have disdained to shelter ourselves under this 
 abominable precedent. We desire that the prisoner may 
 possess all the information which is necessary to his de- 
 fense. It is my sincere wish, in this as well as in every 
 other point, to give him all the assistance which evi- 
 dence can afford. From our souls, do we abhor every 
 the slightest thing which wears the appearance of perse- 
 cution. Sir, I have only read this authority, to show that 
 we might easily have refused this demand under one of the 
 precedents established by a court of the United States
 
 MOTION TO PRODUCE PAPERS. 117 
 
 Mr. Martin has said that no secrets ought to be with- 
 held from a court of justice, except those which have 
 been confidentially intrusted to legal counsel ; that this 
 is the only exception to the general doctrine of evidence : 
 and that in all other cases, the witnesses may be com- 
 pelled to give information. The exception recognized 
 by Mr. Martin, certainly does exist ; but Mr. Martin 
 has taken ground too narrow, nor is that the only case 
 where the witness is permitted to keep his information to 
 himself. Sir, if a confidential communication has been 
 made to Thomas Jefferson, he is not responsible to a 
 court of justice for its contents. I speak, sir, with due 
 submission to the court ; but I ground my opinion prin- 
 cipally on a decision of the supreme court of the United 
 States. My position is that if a communication is con- 
 fidentially made to Thomas Jefferson, he is not bound 
 to appear before this or any other court, to disclose it. 
 It is unnecessary to collect arguments to demonstrate 
 the soundness of the policy on which this principle is 
 founded ; that would be an easy task. But, sir, instead 
 of wasting my time and that of the court upon the 
 policy of the measure, I will refer you at once to a prece- 
 dent. In the case of Marbury v. Madison, in the 
 supreme court of the United States, Cranclis Reports, 
 pages 143, 144, 145, Mr. Lincoln, the attorney-general, 
 was called into court, and it was vehemently contended 
 that he might be compelled to give information like any 
 other citizen. Mr. Lincoln stated his objections in the 
 following terms: First. " That he did not think himself 
 bound to disclose his official transactions, while acting 
 as secretary of state." Second. " That he ought not to 
 be compelled to answer anything which might tend to 
 criminate himself." The court supported him in these 
 objections. It follows from these opinions that the court 
 should always receive special information about the 
 papers, which a party wishes to obtain, before they 
 authorize him to demand them. They ought to ascer- 
 tain whether these papers contain confidential commu- 
 nications to the head of the government. But, sir, if 
 the papers which are called for by the affidavit of Aaron 
 Burr be\of a public nature, why should the court issue a 
 duces tecum to demand them? The opposite
 
 n8 TRIAL OF AARON BURR. 
 
 counsel may rest assured, and the attorney for the 
 United States has actually pledged himself solemnly to 
 this court that he would spare no exertions to obtain a 
 copy of them, if the copy would be sufficient; or the 
 originals, if copies will not avail. But, sir, if this letter 
 be of a confidential nature, it is not the duty of the pres- 
 ident of the United States to produce it in this court or 
 anywhere else. 
 
 And where is the propriety of directing this subpoena 
 in any event to the president? If it be a public letter, 
 it is undoubtedly deposited with every other paper of 
 the same complexion in the archives of state. Why, 
 then, is not this subpoena addressed to the secretary of 
 state, instead of the president of the United States? 
 There is no specific reason why this informality is 
 adopted ; for gentlemen do not even pretend that they 
 want the president's person. All that they pretend to 
 require are certain papers in his possession ; and these 
 are evidently to be obtained, without the necessity of 
 dragging him from Washington to this city. But, sir, 
 if these papers are not of public nature, but confidential 
 communications, then it is- necessary or proper to sub- 
 pcena Thomas Jefferson. 
 
 One remark more and I have done. The gentlemen 
 insist upon the necessity of producing in this court the 
 original letter from General Wilkinson to the president 
 of the United States. I will suggest an expedient, 
 which may obviate every possible inconvenience. If 
 your honors say that a copy of this letter may be read 
 in evidence, like copies of all other documents in the de- 
 partments of government, then also will the. attorney for 
 the United States consent that this copy may be read 
 and have the very same effect as the original. But gen- 
 tlemen may contend that General Wilkinson would ob- 
 ject to this copy. Sir, General Wilkinson would have 
 no right to urge such an objection ; and much less, 
 when he should understand that this very copy is ex- 
 pressly introduced into the court, on the principle of 
 possessing the same validity as the original itself. But, 
 sir, if General Wilkinson should dare to raise this objec- 
 tion ; if he should pretend to declare that this was not 
 his letter, or that it was not an authenticated and correct
 
 MOTION TO PRODUCE PAPERS. 119 
 
 copy, a few days only would elapse when the original 
 would certainly be produced 
 
 Mr. Botts. In a government of laws, where majesty 
 and prerogative are proscribed, and where the authorities 
 of all the public functionaries are to be exercised for the 
 benefit of the people, there are but few instances in 
 which the policy of state secrecy can prevail. In the na- 
 tional intercourse with foreign states, where the relations 
 present subjects fit for privacy, the rare duty of con- 
 cealment may occur. Some time ago, when the hue 
 and cry of treason was rung through the country, there 
 might have been an excuse for the claim of securing 
 from the eye of the suspected, particular acts of the cab- 
 inet. At this moment it will not be pretended that the 
 public good can require that Mr. Burr should not have 
 the means from the departments required for his justifi- 
 cation. 
 
 Can any innocent purpose, said Mr. Botts, be sub- 
 served by the president's .withholding the 'documents 
 demanded ; and will the counsel malign him by imput- 
 ing to him a guilty one? The act of congress provides 
 fees for copies from the ministerial offices under the con- 
 trol of the president, and every individual has a right to 
 demand them on paying the statutory charges. If indi- 
 viduals in common have this right,' why has it been 
 denied to Mr. Burr, whose fate may depend in some 
 degree on them? One of the copies was promised, but 
 the promise was forgotten. State policy in England has 
 done a great deal of mischief; it has often sheltered 
 wicked and corrupt ministers from the punishment due 
 to their crimes : yet even there (where the principles of 
 liberty are not understood so well as in this country) in 
 Sir Home Popham's trial, Lord Melville, president of the 
 board of admiralty, was compelled, a few months, ago, 
 to appear and give evidence concerning the instructions 
 he had given to that admiral. I do not now complain 
 of the illiberal caution of the gentlemen in keeping 
 hidden their written evidence, which, if known in time, 
 we might refute ; but such testimony as we think 
 material in our defense, we are at any rate entitled to 
 without favor from them. But the gentlemen have 
 made a concession of great liberality! They say they
 
 i 2 o TRIAL OF AARON BURR. 
 
 are willing that the president may be summoned to 
 attend, but not to give evidence when he does attend : 
 not to disclose anything but what he may himself con- 
 descend to make known. The president may be, and 
 no doubt is, a very great and good man ; but while his 
 policy in relation to the accused is so completely envel- 
 oped in mystery, the counsel for the prosecution must 
 pardon us, if we can not consent to pin our faith on his 
 sleeve, arid if we choose rather to betake ourselves to 
 our legal rights. 
 
 The opinion given by Judge Chase on the trial of 
 Cooper, was reprobated by the politics of those gentle- 
 men who prosecute for the United States ; and yet they 
 now wish to avail themselves of that authority. I con- 
 gratulate them upon their dereliction of the old demo- 
 cratic opinions which prevailed at the time of Cooper's 
 trial, and which I thought would have gone with my 
 friends to their graves. 
 
 Mr. Mae Rae observed that Mr. Botts had misrepre- 
 sented the object for which fte had introduced the opin- 
 ion of Judge Chase ; that he had not pretended to use 
 it as authority ; but, on the contrary, had expressly 
 declared that he scorned to avail himself of it. 
 
 Mr. Wickham said that Judge Chase's opinion pro- 
 nounced in the case of Cooper was not correctly under- 
 stood. It was not that the president could not be sum- 
 moned as a witness, but that he ought not be summoned 
 to give evidence against himself. 
 
 Mr. Botts proceeded to say that even that qualified 
 opinion of Judge Chase had been reprobated by .the gen- 
 tlemen ; but now they shelter themselves under it in 
 effect, because they use it as authority against the suc- 
 cess of the present motion. 
 
 The gentlemen contend that the executive must judge 
 whether the documents require secrecy or not. But 
 how can this judgment be exercised until they are called 
 upon ? And how can the government be legally called 
 on but by process of^stibpazna duces tecum ? When this 
 is served the president may make out his return. 
 
 As to the argument that a copy of General Wilkin- 
 son's letter will be sufficient : Suppose, said Mr. Botts, 
 General Wilkinson should swear to one thing., and the
 
 MOTION TO PRODUCE PAPERS. 121 
 
 copy of his letter should say another; would you con- 
 demn him upon the president's certificate merely that 
 the paper produced contained a true copy of a letter 
 from him ? 
 
 He concluded with observing that, if a time shall ever 
 arrive when a person shall stand accused of a crime of 
 the highest nature; of a crime by which his life is endan- 
 gered, if a part of the testimony shall be concealed by 
 those who administer the government, and no policy of 
 state requires it ; and yet the court does not compel it 
 to be produced to screen the devoted victim : it will be 
 a disastrous time for our country ! 
 
 Mr. VVirt. The counsel for the prosecution do not 
 deny that the general subpoena ad testificandum may be 
 issued to summon the president of the United States, 
 and that he is as amenable to that process as any other 
 citizen. If his public functions disable him from obey- 
 ing the process, that would be a satisfactory excuse for 
 his non-attendance pro hcsc^vice ; but does not go to 
 prove his total exemption from the process. We think 
 further, sir, that a man standing in the situation of the 
 prisoner, has also the right to demand all papers material 
 for his defense, wheresoever they may be, the disclosure 
 of which wiH not compromit the national safety ; but 
 then the papers required must be shown to be material 
 for his defense. The siibpoena ad testificandum is a mat- 
 ter of right, and the prisoner might have demanded it 
 from the clerk without the intervention of the court ; 
 but here is a motion for a subpana duces tecum, to com- 
 pel the president to produce certain papers of state, the 
 materiality of which is not shown. . 
 
 I shall contend first, sir, that the subpoena duces tecum 
 is not a process of right ; that the motion for it, is a 
 motion addressed to the discretion of the court ; and 
 that the court may award or withhold it as they see 
 fit. 
 
 In the next place, I shall contend that this discre- 
 tion of the court should be controled and determined 
 only by the relevancy and materiality of the papers 
 required. 
 
 And thirdly, that in the present instance, the rel- 
 evancy and materiality of the papers required are so
 
 122 TRIAL OF AARON BURR. 
 
 far from being shown, that, from everything which 
 appears, they are both immaterial and entirely irrel- 
 evant. 
 
 I shall proceed to show, in the first place, that t\iQ sub- 
 poena duces tccum is not a process of right, but that the 
 application for it is addressed merely to the discretion of 
 the court. 
 
 Mr. Wickham. That is admitted, sir ; we admit that 
 it is an application to the sound discretion of the court. 
 
 Mr. Wirt. I thank you for the admission, sir. You 
 have relieved me from -the unnecessary trouble of so 
 much of my argument. It being conceded, then, that 
 this is an application to the discretion of the court, 
 the question naturally presents itself, by what circum- 
 stances should that discretion be controled and deter- 
 mined ? Should it be by the mere wish of the prisoner? 
 If so, it is in vain that the court possesses any discretion 
 on the subject ; the only discretion exercised about it, 
 is the discretion of the prisoner. He has but to ask and 
 have ; and by his mere wish he changes this from a pro- 
 cess flowing from the discretion of the court, into a 
 process of absolute right. Consider this wide and bold 
 doctrine on the ground of expediency. Would you 
 summon any private individual from the remotest part 
 of the United States, to produce a paper on the mere 
 wish of the prisoner, without his defining the paper 
 and showing how it bore upon his defense? If you 
 would, you put the pursuits and the peace of every 
 individual in the United States at the mercy of the pris- 
 oner's caprice and resentments. This argument, from 
 inconvenience, assumes an attitude of the most awful 
 and alarming importance, when you extend it to a case 
 like this before the court. A prisoner seldom has any 
 cordial amity for the government by which he is prose- 
 cuted for a crime. The truth is, that he feels himself in 
 a state of war with that government ; and the more des- 
 perate his case, the more ardent will be his spirit of 
 revenge. Would you expose the offices of state to be 
 ravaged at the mere pleasure of a prisoner, who, if he 
 feels that he must fall, would pant for nothing more 
 anxiously than " to grace his fall and make his ruin glor- 
 ious," by dragging down with him the bright and
 
 MOTION TO PRODUCE PAPERS. 123 
 
 i 
 
 splendid edifice of the government? Sir, if Aaron Burr 
 has the right, at his mere wish, to call one paper from 
 the government, he has the same right to call any other; 
 and so, one after another, might divulge and proclaim 
 to the world every document and secret of state, how- 
 ever delicate our foreign relations might be, and however 
 ruinous the disclosure to the honor and prosperity of the 
 country. These, sir, are topics offered to the discretion 
 of the court. 
 
 It is certainly much to be wished, that a rule could 
 be devised, which, while it should protect the rights of 
 the prisoner, should also protect the public offices from 
 being wantonly and unnecessarily violated. I think 
 there is such a rule. It is this ; it is by requiring that 
 the prisoner who calls for a paper, should show that the 
 paper applies to his case, and is requisite for his defense. 
 When he shall have done this, I hold that he will be 
 entitled to call for any paper. It will then rest with the 
 president of the United States, the officer appointed by 
 the people to watch over the Rational safety, to say 
 whether that safety will be endangered by divulging the 
 paper. Surely, sir, justice to the prisoner requires no 
 more than that he should possess such papers as are 
 material for his defense ; and will not the court require 
 that he should show that materiality, before they give 
 way to his call ? If they do it, if they say that it is 
 enough for the prisoner to wish a paper, to have it, they 
 put themselves, as well as the chief magistrate of the 
 Union, in danger of becoming the mere ministers of the 
 prisoner's whim, or malice and resentment;' but by 
 adopting the rule which I have proposed, they would 
 avoid these consequences and do all that justice requires 
 for the prisoner. 
 
 When the subject was first mentioned, it was said by 
 one of your honors, that it is usual to award the subpoena 
 duces tecum on the mere motion of the party, unsup- 
 ported by any affidavit as to the purpose for which the 
 paper was required. This is true, sir ; such an affidavit 
 is not generally required ; but why is it not ? Because 
 the relevancy and materiality of the paper are admitted 
 by the adverse counsel, or are palpable from the nature 
 of the issue, and of the paper required. The docket, for
 
 124 TRIAL OF AARON BURR. 
 
 would it be proper to divulge and proclaim it even to 
 Spain herself? If the letter contains such a thing, I 
 have no doubt that the president ought and will conceal 
 at least so much of it. This, however, will be a question 
 with him, when the paper shall be called for, and a 
 question which he alone is competent to decide. 
 
 From what has been said, I take it to be clear that the 
 relevancy and materiality of these papers for the pris- 
 oner's defense are not palpable, by comparing the nature 
 of the papers with the nature of the issues ; and being 
 neither self-evident nor admitted, I hold that the party is 
 bound to show, at least by his affidavit, wherein they 
 are relevant and material. This he has not pretended 
 to do in the affidavit offered to the court ; for in that, he 
 has merely stated, in terms the most loose arid vague, 
 that he believes these papers may be material for his de- 
 fense. Sir, he might take the same oath as to any paper 
 in the offices of state, without the possibility of proving 
 him forsworn ; for he swears merely to a conjecture, and 
 whether he entertains it or not, can never be decisively 
 known to any one but* himself. Will you lay open the 
 public offices to be ransacked by conjectural affidavits ? 
 Will you adopt a precedent which will put it in the 
 power of the enemies of the government at any time, 
 and without the hazard of punishment, to explore your 
 offices with the worst of views, and harass the officers 
 themselves at their discretion ? Sir, I wish the prisoner 
 to have a fair trial. I wish him to possess every atom 
 of evidence which can contribute to his acquittal, but 
 these papers appear to me not calculated to touch the 
 issue, and still less calculated to do the prisoner any 
 good. If he thinks otherwise, where can be the diffi- 
 culty of his showing, by an affidavit at least, some prob- 
 ability of their doing him service. If he knows the 
 nature of these orders and that letter so well as to have 
 ascertained to his own satisfaction, that they may do him 
 service, where can be the harm of his setting out in his 
 affidavit the character of the papers, and showing how 
 they may be brought to bear upon his case ? When he 
 shall have done so, the court will have something for its 
 discretion to act upon ; at present they have nothing 
 but the prisoner's faint conjecture, and the discretion
 
 MOTION TO PRODUCE PAPERS. 125 
 
 example, presents the case of a writ of right, or an action 
 of ejectment; the name of the action shows that the 
 title of land is in question. One of the parties moves 
 for a subpoena duces tecum directed to the clerk of 
 another court, and requiring him to bring up a deed or 
 a will which forms a link in the claim of his title. The 
 adverse counsel, if he be present, admits by his silence 
 the propriety of the motion ; or. if his silence has not 
 that effect, the nature of the issue and of the paper 
 required, show et once the relevancy and materiality of 
 the latter. Hence it has happened that these motions 
 are usually unsupported by affidavit. But is this the case 
 here ? The relevancy and materiality of the papers 
 called for, are not admitted by us : are that relevancy 
 and materiality palpable from the nature of the points 
 in issue and the papers required ? Let us see if they 
 be. The two charges against the prisoner are, first, of 
 high treason ; and second, misdemeanor, in setting on 
 foot an expedition against the territories of a nation 
 with whom we are at peace. For the purpose of his 
 defense, he says he wants a letter from General Wilkin- 
 son to the president ; which letter contains a declaration 
 of his guilt ; and also certain orders from the department 
 of war, which, he says, directed the burning and de- 
 struction of himself, his people, and his property. Now, 
 sir, what possible tendency can either of these papers 
 have to acquit the prisoner of the treason or the misde- 
 meanor? As to the orders which have been depicted as 
 being so sanguinary and despotic, I affirm, with the 
 power of proof to support me, that such orders never 
 were given ; though, if it be true, that Aaron Burr had 
 placed himself in a state of war with his country ; was 
 aiming a blow at the vitals of our government and 
 liberty, and that blow could be averted in no other way, 
 I hold that his destruction would have been a virtue ; 
 a great and glorious virtue. Affairs, however, had not 
 reached that desperate crisis. We have seen the orders, 
 sir, and at a proper time will produce them. The very 
 orders to Lieutenant Shaw, which the prisoner has so 
 often mentioned, as having been published in The Nat- 
 chez Gazette ; those orders are not as he has described 
 them ; they are simply orders to apprehend Aaron Burr
 
 i 2 6 TRIAL OF AARON BURR. 
 
 and if it shall become necessary for that purpose, to de- 
 stroy his boats. Those are the bloody orders which have 
 been so often mentioned with looks of such tragic and 
 mysterious import ! Suppose the orders were as bar- 
 barous as he has described them, and that the emer- 
 gency did not justify them, they prove the administra- 
 tion wrong; but do they prove, or tend to prove, Aaron 
 Burr innocent ? If the president were on his trial for 
 having issued these orders, it would be necessary to hear 
 the orders themselves, in order to ascertain their merits 
 or demerits. But the question is not now as to the 
 guilt or innocence of the president ; it is as to the guilt 
 or innocence of Aaron Burr on the charges of treason 
 and misdemeanor; and whether the president has 
 acted right or wrong, does not,- and can not affect the 
 question of Burr's guilt or innocence. The charges 
 against him are to be proved by witnesses on behalf of 
 the United States. If these witnesses do not prove the 
 charges, there is an end of the inquiry: but if they do, I 
 ask whether it be possible that his production of the presi- 
 dent's orders, even in his own terms, will remove that evi 
 dence of his guilt ? Every judgment must answer No 
 and if so, the orders are clearly immaterial for his defense. 
 But although the affidavit does not attempt to show 
 wherein these orders are material for the prisoner's 
 defense, Mr. Martin has attempted to supply this omis- 
 sion by his argument. It seems these orders were so law- 
 less, that Burr had a right to resist them ; and whatever 
 he has done has been in self-defense against these orders. 
 It would be easy, sir, to expose the flimsiness and fallacy 
 of this pretext by a reference to dates. The man can not 
 have a very chronological head who can impute crimes 
 throughout 1805, 1 806, to orders issued in the last month 
 of the last year, or the beginning of 1807 : but without 
 stopping to analyze more minutely this strange an- 
 achronism, let us inquire into this doctrine of resistance 
 which Mr. Martin has advocated. I am not an advocate 
 for passive obedience and non-resistance. I do not think, 
 as Mr. Martin has asked, that a man becomes a god when 
 he becomes a president. I think he does not become a 
 god even by becoming a king or an emperor. On the 
 contrary, I think that a man who, in a government like
 
 MOTION TO PRODUCE PAPERS. 127 
 
 ours, even aspires to become one, approaches, in point of 
 character, a class of beings very opposite to gods. But 
 ascending again to our president ; he is bound by his 
 oath of office to take care that the laws shall be carried 
 into effect. By the particular act of congress which pre- 
 scribes the punishment of misdemeanor charged on the 
 prisoner, the president is authorized and required to call 
 the naval and military force of the country to defeat the 
 enterprise. In the present instance he has done so, and 
 given orders for the apprehension of the offender ; and 
 we are told that Aaron Burr, instead of submitting him- 
 self to the laws and justice of his country, had a right to 
 resist these orders ; that Aaron Burr was to be the judge, 
 whether he should obey or not, orders proceeding from 
 the lawfully constituted authorities of his country ; and 
 that if he thought them unlawful, he had a right to re- 
 sist them by force. If this be so, there is an end of gov- 
 ernment. Every individual in the country, I presume, 
 has, at least, the same rights with Aaron Burr; and if he 
 has this right of submitting to, or resisting the laws and 
 officers of the governwent, as he pleases, everybody else 
 has the same right ; then where is the use of our consti- 
 tution, laws, or officers? We might as well abolish them 
 all, and return to a state of nature. But, sir, neither 
 Aaron Burr nor any other individual carries about him 
 this dispensing power, It is clear that the very act of 
 resistance of which Mr. Martin has spoken, was itself an 
 act of treason. Before the orders can be material for his 
 defense, on this ground, it must be determined that he had 
 the right of resistance ; but, as I presume it to be impos- 
 sible, that the court can entertain this latter opinion, I 
 conclude, that the orders in question, can not be relevant 
 or material to his defense in this light ; and no other has 
 been presented, or I believe can be presented. Let us 
 now consider the letter from General Wilkinson to the 
 president, and inquire how that touches either of the 
 issues in which the prisoner is involved, and now the pro- 
 duction of the original letter is to operate to his benefit. 
 If the letter be material at all, a copy will answer every 
 purpose. The letter, I presume, from the use made of 
 it by the president, is a public document, and is lodged in 
 the department of state. The law of the United States
 
 1*8 TRIAL OF AARON BURR. 
 
 which establishes this office, contains the following 
 clause : 
 
 " And be it further enacted, that the said secretary 
 shall cause a seal of office to be made for the said 
 department of such device as the president of the 
 United States shall approve, and all copies of records 
 and papers in the said office, authenticated under the 
 said seal, shall be evidence equally as the original record 
 or paper." (i Laws U. S. Chap. xiv. p. 5.) 
 
 Hence a copy of this letter will answer every purpose 
 of the original ; and it will be no more competent to 
 General Wilkinson to deny the authenticated copy than 
 the original. But let us see of what use a copy of this 
 letter can be to him ? We know nothing of this letter 
 except from the message of the president, to which the 
 counsel on the other side have referred us ; and by this 
 message it appears, that it was from this letter, connected 
 with others, that the president inferred the prisoner's 
 guilt ; a letter then, which according to the only-account 
 we have of it, contributes to establish the prisoner's 
 guilt, is required for the purpose of proving his inno- 
 cence ! But this letter we learn, not from the affidavit, 
 but from argument, is required for the purpose of con- 
 fronting General Wilkinson, if he should trip in his evi- 
 dence. At present, then, there is confessedly no issue 
 to which this letter applies ; but one may possibly occur 
 by General Wilkinson's departing in his narrative from 
 the statements of his letter. Now, sir, suppose a man 
 should move you for a subpana duces tecum in a civil 
 question, stating, indeed, that there was at present no 
 suit to which the paper could apply, but that he appre- 
 hended one might be brought, in which it might be 
 material, would his motion be granted ? Now where is 
 the difference between such a motion, and the very re- 
 mote probability that General Wilkinson will produce an 
 occasion for this letter, in contradicting by his parol 
 testimony the statement of his letter? But let us press 
 this point a little further. No one pretends to know 
 anything of the details of this letter ; all we know of it 
 is derived from the president's message ; and from that all 
 we learn of it is its general character, that it goes to 
 prove the guilt of Burr. Now, in order to produce any
 
 MOTION TO PRODUCE PAPERS. 129 
 
 collision between this letter and Wilkinson's parol evi- 
 dence, the letter must have an opposite character ; that 
 is, it must go to show the innocence of Burr. If Wil- 
 kinson continues to avow the guilt of Burr, there will be 
 no contradiction between his testimony and his letter, ' 
 and consequently there can be no confrontation between 
 them, beneficial to the prisoner ; there can be a confron- 
 tation in no other event, than that of his deposing to 
 Burr's innocence. The result of the argument is, that 
 Burr, apprehensive that the evidence of General Wilkin- 
 son may be favorable to him, wishes the general's letter 
 for the purpose of destroying that evidence, and prov- 
 ing his own guilt. Again, sir, I have never seen or 
 heard of an instance of this process being required to 
 bring forward any paper, but where such a paper was in 
 its nature evidence, for which either party has an equal 
 right to call, and to use it when produced. But it is ob- 
 vious that in this case and in the present state of things, 
 we could not use the letter of General Wilkinson as 
 evidence ; although the opposite party should obtain his 
 subpana duces tecum for this paper, and would seem 
 thereby to have made it evidence, and introduced it into 
 the cause. Yet after it comes we can not use it : hence 
 there is no reciprocity in it. The paper is not, at 
 present, evidence, and therefore is not within the princi- 
 ple on which this process is awarded. One more remark 
 on this letter, and I have done with it. I am no more an 
 advocate for the needless multiplication of state secrets, 
 than the gentleman who has preceded me. It looks too 
 much like the mysteries of monarchy ; and I. hate mon- 
 archy with all its mysteries, as I do the mysterious 
 movements of those who are lovers of monarchy. Yet 
 it is obvious, that there may be cases in which the very 
 safety of the state may depend on concealing the views 
 and operations of the government. I will instance in 
 this very letter. I do not know what it contains ; but it 
 is from the general who commands on the Spanish 
 frontier. That the state of our affairs was and is with 
 Spain, not the most amicable, is well understood. We 
 know that our affairs in that quarter wear, even at this 
 time, the most lowering aspect. Suppose this letter 
 should contain a scheme of war, a project of attack, 
 i. 9
 
 13 o TRIAL OF AARON BURR. 
 
 would appear to me not very sound which would be de- 
 termined by a consideration like that. 
 
 I can see but one possible objection to the particular 
 affidavit which I require, which is, that the prisoner 
 would thereby unmask his defense. But in the case of 
 the United States against Smith, a particular affidavit 
 was required by Judge PATTERSON, setting out what 
 it was expected to prove by the witnesses ; and although 
 it was objected in that case that by demanding such an 
 affidavit he compelled the accused to unmask his de- 
 dense, he nevertheless demanded the affidavit. And in 
 that case, as in this, although the materiality of the evi- 
 dence was supported by some of the ablest advocates on 
 the continent, the court determined against its materi- 
 ality, and the cause went on without it; but in the 
 present instance, an objection as to unmasking the de- 
 fense would be an objection merely of form, because the 
 gentlemen have by their arguments, in fact, taken off 
 the mask, and stated the manner in which they expect 
 this evidence to apply. We have examined their expec- 
 tations, and I hope found them baseless. 
 
 I conclude, sir, that this is an application to the dis- 
 cretion of the court ; that justice to the prisoner required 
 only that he should have all papers from the officers of 
 state which he shall show to be material and relevant to 
 his defense ; that he has not shown them to be so in 
 this case ; and that, therefore, the process should be 
 withheld until he does show them to be so. I know of 
 no other rule, which, while it protects the rights of the 
 prisoner, will also save the offices from needless, wanton, 
 and wicked violations. 
 
 I can not take my seat, sir, without expressing my 
 deep and sincere sorrow at the policy which the gentle- 
 men 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 oc- 
 casions to express for the prisoner, his honorable friend. 
 In the cause of friendship I can pardon zeal even up to 
 the point of intemperance ; but the truth is, sir, that be- 
 fore Mr. Martin came to Richmond, this policy was 
 settled, and on every question incidentally brought be-
 
 MOTION TO PRODUCE PAPERS. 131 
 
 fore 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 favor? 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 oc- 
 casion, and on every mere question of abstract law before 
 the court, flew off a tangent from the subject, to launch 
 into declamations against the government? Exhibiting 
 the prisoner continually as a persecuted patriot : a Rus- 
 sell 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 judg- 
 ment 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 
 favorable impression ? And do they use the court- 
 merely as a canal, through which they may pour upon 
 the world their undeserved invectives against the gov- 
 ernment ? Do they wish to divide the popular resent- 
 ment, 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
 
 132 . TRIAL OF AARON BURR. 
 
 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 disre- 
 spectful to the court itself? Suppose there are any for- 
 eigners here accustomed to regular government in their 
 own country, what can they infer from hearing the fed- 
 eral administration thus reviled to the federal judiciary? 
 Hearing the judiciary told that the administration are 
 " blood hounds, 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 ad- 
 dressed to the court, and received with all the complac- 
 ency at least which silence can imply, can make any 
 inferences from it very honorable to the court. It would 
 only be inferred, while they are thus suffered to roll and 
 luxuriate in these gross invectives against the adminis- 
 tration, 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 introduc- 
 tion of other subjects foreign to the inquiry. 
 
 Mr. Wickham appealed to the court if the counsel for 
 Mr. Burr had been the first who began the attack ; and 
 wished the gentleman to follow his own wise maxims. 
 He observed, that Mr. Wirt had met the question fairly, 
 and conceded several points which had been contended 
 for by his associates. He admitted the granting a writ 
 of " subpoena duces tecum " to be a matter of discretion ; 
 but insisted, that the opinion of the party applying for 
 it, that the papers might be material, was sufficient. He 
 said that the question in the case of the United States v. 
 Smith, arose on a motion for a continuance. 
 
 Mr. Wirt corrected his statement ; observing, that the 
 motion was for a continuance and for an attachment
 
 MOTION TO PRODUCE PAPERS. 133 
 
 against the witnesses at the same time, and both ques- 
 tions were argued collectively. 
 
 Mr. Wickhain agreed that such was the case; but con- 
 tended that the special affidavit was required, because 
 there was a motion for a continuance ; and that on a 
 motion of this kind, an affidavit need not be special. He 
 said, that the reason given by Judge Patterson, for re- 
 quiring a special statement of what was intended to be 
 proved by Messrs. Madison and Smith, was, that if they 
 had been present, their evidence (if it only went to prove 
 that the president had sanctioned the expedition) would 
 have been of no consequence ; since the president's sanc- 
 tioning the expedition could not have rendered it 
 lawful. 
 
 We are told, said Mr. Wickham, that Wilkinson's letter 
 is not important! Yet he is the pivot on which this 
 prosecution turns. Without his evidence they could not 
 progress with the trial. When he arrives, it will be all 
 important to us to prove the falsehood of his testimony, 
 by proving that he has contradicted himself. His credi- 
 bility Is the point in question ; and surely General Wil- 
 kinson is not so immaculate as the government. We 
 may allude to his tyrannical and oppressive conduct at 
 New Orleans; we may demonstrate that his feelings, his 
 interests, his character, require him to secure the convic- 
 tion of Mr. Burr. Under these circumstances, his ve- 
 racity must be very doubtful, especially if we can show- 
 that he has made three or four different and inconsistent 
 representations of the transactions charged to be treason- 
 able. His letter, therefore, ought to be produced. 
 
 As to the inconvenience to which the public offices 
 may be subjected, it ought not to be regarded ; for those 
 offices were made for the good of the people, not for the 
 good of the officers. All that Mr. Burr is obliged to 
 show, is probable cause to believe that Wilkinson's let- 
 ter may be material, though he can not swear that it 
 is material. Mr. Wirt says, he is not an advocate for 
 state secrets; but he is in this case, without knowing 
 it. He has said, too, that the acquittal of Mr. Burr will 
 be a satire on the government. I am sorry that the gen- 
 tleman has made this confession, that the character of the 
 .government depends on the guilt of Mr. Burr. If I be-
 
 134 TRIAL OF AARON BURR. 
 
 lieve him to be correct, I could easily explain, from that 
 circumstance, the anxiety manifested to convict him, and 
 the prejudices which have been excited against him. 
 But I will not believe that this is the case, but will tell 
 the gentleman that we think Burr may be acquitted, and 
 yet the government may have pure intentions. 
 
 The writ of subpoena duces tecum ought to be issued, 
 and if there be any state secrets to prevent the production 
 of the letter, the president should allege it in his return ; 
 for at present we can not know that any such secrets 
 exist. And the court, when his return is before them, 
 can judge of the cause assigned. But I have too good 
 an opinion of the president to think he would withhold 
 the letter. 
 
 The gentlemen on the other side have said that we do 
 not wish to unmask our defense ; but in withholding the 
 papers which we demand, they show that they have on 
 the mask, and we wish the court to aid us in making them 
 pull it off. 
 
 We contend that no affidavit on the part of Mr. Burr 
 is necessary. Wilkinson's affidavit, already published, 
 together with the president's communication to con- 
 gress, prove that the letter in question must be material. 
 It may show that the treasonable transactions attrib- 
 uted to Mr. Burr within the limits of this state, never 
 existed ; for, as to Blannerhasset's Island, the gentlemen 
 in the prosecution know that there was no such thing as 
 a military force on that island. 
 
 [Here Mr. Hay interrupted him, and said that it was 
 extremely indelicate and improper to accuse them of 
 voluntarily supporting a cause which they knew to be 
 unjust. He solemnly denied the truth of the charge 
 against him and the gentlemen who assisted him, and 
 declared that they could prove the actual existence of an 
 armed assemblage of men on Blannerhasset's Island, 
 under the command of Aaron Burr.] 
 
 , Mr. Wickham acknowledged that he had gone too far 
 in the expression he had used, and ought not to have 
 uttered what he had said concerning the counsel for the 
 United States, and declared that he meant nothing per- 
 sonal against them. He proceeded to argue the question 
 concerning the production of the president's orders. He
 
 MOTION TO PRODUCE PAPERS. 135 
 
 denied, as Mr. Martin had done before, the legality oi 
 those orders, and contended that Mr. Burr had a right to 
 resist them. Mr. Burr was brought here how he was 
 brought we will not say ; but we will say, that resistance 
 to the militia ordered out against him, was resistance to 
 tyranny and despotism. 
 
 Mr. Wickliam returned to the question relative to Wil- 
 kinson's letter. We are told, he said, that the letter is 
 in the department of state, and a copy will be suffi- 
 cient. If the letter was written to the president of the 
 United States, and not to the secretary of any depart- 
 ment, we may presume that the president has it in his 
 own possession. But if a copy were here, Wilkinson 
 might deny that he ever wrote the letter ; and although 
 the copy might be faithful, it could not prove that the 
 letter was not a forgery. The original, therefore, will 
 alone answer our purpose. 
 
 Mr. Wirt lays down the strange principle that Wilkin- 
 son's letter is not evidence, because it could make only 
 in favor of one side ; but that it ought to make in favor 
 of the other side also. Give the gentleman his premises, 
 and his conclusion follows. But his premises are false; 
 for the doctrine can not be sound, that nothing is evi- 
 dence but that which makes in favor of both sides of a 
 question. Such reciprocal effect is not essential to the 
 admissibility of evidence. 
 
 When Mr. Wickham had finished, the chief justice 
 observed that although many observations (in the course 
 of the several discussions which had taken place) had 
 been made by the gentlemen of the bar, in the heat of 
 debate, of which the court did not approve, yet the 
 court had hitherto avoided interfering; but as a pointed 
 appeal had been made to them on this day (alluding to 
 the speech of Mr. Wirt), and they had been called upon 
 to support their own dignity, by preventing the govern- 
 ment from being abused, the court thought it proper to 
 declare that the gentlemen on both sides had acted 
 improperly in the style and spirit of their remarks : that 
 they had been to blame in endeavoring to excite the 
 prejudices of the people ; and had repeatedly accused 
 each other of doing what they forget they have done 
 themselves. The court, therefore, expressed a wish that
 
 136 TRIAL OF AARON BURR. 
 
 the counsel for the United States and for Mr. Burr 
 would confine themselves on every occasion to the point 
 really before the court ; that their own good sense and 
 regard for their characters required them to follow such 
 a course ; and it was hoped that they would not here- 
 after deviate from it. 
 
 THURSDAY, June nth, 1807. 
 
 Mr. Hay addressed the court to this effect : I am 
 happy the court has recommended to the counsel on 
 both sides to adhere more strictly to the subjects in 
 debate. Their admonition will be followed by me, and I 
 wish they would cause it to be followed by others. I 
 regret, indeed, that it was not made somewhat sooner. 
 Perhaps if it had, we might have been spared the pain of 
 hearing many remarks, as unauthorized in point of prin- 
 ciple and fact as they are irrelevant ; remarks, which, as 
 a public prosecutor, as a friend of my country, and a 
 supporter of its constitution, government, and laws, I 
 heard with surprise and regret, and with a sentiment 
 which I will not name. I will not imitate this example 
 of my opponents, but endeavor to confine my observa- 
 tions exclusively to the question now in discussion. I 
 am really doubtful, however, whether I should not be 
 departing in some degree from this declaration in notic- 
 ing one argument used by the gentleman who last spoke 
 (Mr. Wickham). Language so strange, -a charge so un- 
 just, I hope, however, I may be permitted to repel. 
 
 The gentleman, with a tone of voice calculated to 
 excite irritation, and intended for the multitude, charged 
 us with conceding point after point i He insinuates 
 that we have been catching at everything to bear down 
 the accused ; that we inconsiderately contend for any 
 doctrine, however absurd, which might have the effect of 
 injuring him, and afterwards are obliged to abandon the 
 ground we have too precipitately taken. I will ask, if 
 any occurrence has shown that we are actuated by this 
 spirit ? No, sir. The gentleman knows the charge is 
 unjust. But even if it had been true that we had made 
 concessions, it ought to have been considered as a proof 
 of our candor and liberality, in giving up ground as soon
 
 MOTION TO PRODUCE PAPERS. 137 
 
 as we thought it untenable, and not as a matter of 
 reproach. But, sir, it is not correct. We have con- 
 ceded no point that we ever maintained. We admitted 
 that the president might be subpoenaed as a witness, 
 because we always thought so. We never clothed him 
 with those attributes of dignity which gentlemen have 
 accused us of ascribing to him. We know the president 
 is but a man, though among the first of men ; he is but 
 a citizen, though the first of citizens. The president, too, 
 knows, that, like the great Cato, he ought to pay obe- 
 dience to the laws of his country, and obey the com- 
 mands of its courts of justice. All this we have uni- 
 formly admitted; but have denied, and deny now, 
 that a subpoena duccs tecum ought to be issued to the 
 president. 
 
 Mr. Hay morover observed, that the objection made 
 the day before to the prisoner's right to make the motion 
 in the present stage of the prosecution was not waived; 
 and that in opposing the motion, he was influenced solely 
 by a desire to keep the accused and his counsel within 
 legal limits ; because he had endeavored to procure for 
 them the very evidence they requested. He proceeded 
 to argue the question upon its merits. 
 
 It having been admitted, that this was a motion ad- 
 dressed only to the discretion of the Court, it followed, 
 that it ought to be granted only when substantial justice 
 required it ; that it is to be granted to a person accused, 
 because his defense when properly conducted requires it. 
 But the accused himself in this case does not say these 
 papers are material in his defense. His affidavit is 
 drawn with great caution. He only says that the papers 
 may be material. This is nothing more than the mere 
 expressing of an opinion, which may be correct or incor- 
 rect. Mr. Hay asked the counsel for Mr. Burr, and more 
 especially Mr. Martin, if in the course of their long expe- 
 rience they had ever known such an affidavit. Its 
 language is unprecedented, designedly vague, and equiv- 
 ocal. The letter may be material ! This may depend upon 
 the use intended to be made of it. The object of demand- 
 ing it may be to give his counsel an opportunity to speak 
 as they have done before; to charge the government 
 with illegal and barbarous persecution, and with endea-
 
 138 . TRIAL OF AARON BURR. 
 
 voring to crush and overwhelm the accused. All this 
 may be said, and no doubt will be said, and may be a 
 very considerable help to Mr. Burr. 
 
 The affidavit is truly farcical ; because from anything 
 expressed in it, the letter of General Wilkinson may, or 
 may not be material. Suppose these words " or may not " 
 had been inserted, would it then have been regarded ? 
 The absurdity would then have been too evident. And 
 is it not the same thing in substance as it now stands? If 
 such an affidavit as this is sufficient, and mere curiosity 
 is to be indulged, the President might be required to 
 produce all our correspondence with the Spaniards about 
 our disputed territories ; in short, all the papers of gov- 
 ernment would be laid open to the inspection of Burr. 
 But the Court ought not to issue process on speculation 
 only ; it ought not to subject the public officers to incon- 
 venience, and the national archives to derangement, 
 unless in a case where justice plainly requires it. 
 
 But the affidavit would not have been sufficient if he 
 had said, what he dared not to say, that the papers are 
 material. It should appear how they are material. The 
 nature of the evidence ought to be specially stated, that 
 the Court may judge of it. Will the Court rely on the 
 judgment of the party in this case? Misled as he is by 
 his feelings, his judgment ought not to be trusted. 
 
 Even in ordinary cases the Court will inquire as to the 
 contents of papers on a motion for a continuance. Which 
 doctrine is recognized in 2 Bl. Rep. 514. The same thing 
 was done in the case of the United States v. Smith and 
 Ogden, in which almost as much clamor was excited as 
 in this. There, the evidence of Mr. Madison and others 
 was sworn to be material ; but the Court required a 
 specification of its substance, and decided that it was not 
 admissible. The papers required in the present case 
 would probably be so decided if they were here. I have 
 a knowledge of the orders, and think so with respect to 
 them. The letter I know nothing about. Mr. Wickham's 
 argument, that the Court did right in Smith and Ogden's 
 case, because it was prima facie presumable that the evi- 
 dence would not be admissible, turns against him here ; 
 for, certainly, it is prima facie presumable that General 
 Wilkinson's letter can not make in Burr's favor, since the
 
 MOTION TO PRODUCE PAPERS.- 139 
 
 orders to intercept him on his passage to the seat of his 
 empire were founded on the information received from 
 that letter. 
 
 The conduct of the gentlemen proves that they feel us 
 to be right. Their involuntary conviction of this is 
 evinced by their endeavoring to supply the defect in the 
 affidavit, and to specify the purposes for which the 
 papers are wanted. The accused has not ventured to 
 swear that they are material, but they assert it, and 
 attempt to show it by argument. 
 
 First, as to the letter. Mr. Wickham says that Wilkin- 
 son has written other letters to other persons differing 
 from this. We deny the fact. If it be true, why is it not 
 sworn to ? But suppose General Wilkinson had done so, 
 what is the inference? Is his evidence before the jury not 
 to be regarded? It is strange indeed that the gentlemen 
 say they have never seen this letter, and only guess at its 
 contents, yet say, that letters containing different state- 
 ments have been written ! Surely such efforts as these are 
 deplorable ; for, whether the assertion be true or not, it 
 is not known to be true. 
 
 They next contend that the orders are material because 
 they were illegal, arbitrary, unconstitutional, oppressive, 
 and unjust ; that Burr's acts were merely acts of self- 
 defense against tyranny and usurpation, and, of course, 
 were justifiable. 
 
 Many strange positions have been laid down, but this 
 is monstrous. Mr. Martin will excuse me for saying that 
 I expected sounder doctrine from his age and experience. 
 These principles were not learnt by him in Maryland, nor 
 are they the doctrines of this place. Considering that 
 he has come all the way from Maryland to enlighten us 
 of the Virginia bar by his great talents and erudition, I 
 hoped he would not have advanced a doctrine which 
 would have been abhorred even in the most turbulent 
 period of the French revolution, by the Jacobins of 1794! 
 It is the duty of the president to call out the militia to 
 suppress combinations against the laws (see L. U. S. vol. 
 3, page 189^, and particularly to prevent enterprises 
 against foreign nations in amity with the United States 
 (ib. page 92). Yet it is contended that his orders for such 
 purposes are illegal, and may be resisted by force of arms!
 
 140 TRIAL OF AARON BURR. 
 
 I will not say it is treason to advance, or a misdemeanor 
 to believe such doctrines ; but deplorable is the cause 
 which depends on such means for support. Suppose 
 however, the president was misled, and that Mr. Burr was 
 peaceably engaged in the project of settling his Washita 
 lands ; will it be contended that he had a right to resist 
 the president's orders to stop him ? I say this would be 
 treason. If congress were to pass an arbitrary or oppres- 
 sive act, but not unconstitutional (such as the excise law, 
 for example), it has been decided, that an armed combin- 
 ation to resist it would be treason. Of course, resistance 
 to the execution of the statute, under which the president 
 was acting, would be treason. The president receives 
 information that a law of the United States is about to 
 be violated ; he issues orders to enforce the law in the 
 way prescribed by itself. Is not opposition by violence 
 reason? Will the gentlemen, after seriously reflecting, 
 still contend that Burr had a right to resist ? This doc- 
 trine is not the growth of this country, nor is it the 
 doctrine of the real friends of human liberty ; but this 
 is a new-born zeal of some of the gentlemen, in defense 
 of the rights of man. No wonder, therefore, they are 
 not so well acquainted with the subject as those who have 
 always contended, and always will contend, for them. 
 But admit their inference correct ; that Burr had a right 
 to resist an illegal order (which I utterly deny), will the 
 court issue a subpoena founded on that supposition? 
 Will you insult the executive by saying, that its orders 
 were illegal, and ought on that account to be produced 
 as evidence? especially after you have yourself said, that 
 there was probable cause for committing Mr. Burr on the 
 charge of a" misdemeanor? 
 
 Mr. Hay proceeded to argue another point, that the 
 court ought not only to be satisfied that the letter was 
 material, but that it was a public paper. He said, if it was 
 a public document, the right to a copy of it was admitted, 
 unless there should be something in it, which, in the 
 opinion of the president, the public good forbade to be 
 disclosed. But he denied that the letter was a public 
 paper merely because addressed to the president of the 
 United States. It had been observed that the president 
 had made it so by referring to it in his message to con-
 
 MOTION TO PRODUCE PAPERS. 141 
 
 gress. If this argument is correct, only so much is public 
 as is referred to. [Here Mr. Hay read a part of the 
 president's communication to congress.] He contended, 
 that there might have been a great deal more in that let- 
 ter than what related to the discovery of Burr's plans ; 
 that there might have been information of a private 
 nature, accounts of the disposition of the people in the 
 western country towards the government, and General 
 Wilkinson's thoughts on many important subjects. Will 
 the court say, that all these things shall be made known? 
 If a copy was received, such parts only could be extracted 
 as ought to be made public ; but if the original should be 
 granted, the whole would be seen and inspected by the 
 court, by the counsel on both sides, and by the public. 
 He said, that the court ought also to be satisfied, that 
 the president has the custody of this letter. The subpoena 
 ought to be addressed to the person who has it in his 
 custody. It is said to b^ a public document ; if so, it is 
 in the office of the secretary of state (see L. U. S. vol. I, 
 
 p. 42, 43)- 
 
 It is absurd, then, as well as indecorous, to summon the 
 president of the United States to bring a paper which he 
 has not. The same observations applied to the copies of 
 orders. The original orders were lodged with the secre- 
 tary of state, and copies were sent by him to the secreta- 
 ries of war and of the navy. To the secretary of state, 
 therefore, the subpoena ought to be issued, if at all. 
 
 The court ought also to be satisfied that the party 
 could not obtain, without a motion, the copies of the 
 orders now required. The accused ought, therefore, to 
 show that he has demanded copies : but he has not done 
 so. He asked, indeed, a copy from the secretary of the 
 navy ; and because he refused, process is to be issued 
 against the president of the United States, though he was 
 never applied to ! 
 
 The Chief Justice asked Mr. Hay, what was the legal 
 way of getting the paper which the secretary of the navy 
 refused. He answered, " by application to the secretary 
 of state for copies." 
 
 Mr. Hay made many other observations, which the 
 limits of this sketch will not permit us to insert. In 
 opposition to the argument that General Wilkinson might
 
 142 TRIAL OF AARON BURR. 
 
 deny any recollection of his letter if a copy only was 
 produced, he said it was mere presumption, a preposterous 
 supposition ; that it would be immaterial whether he 
 denied it or not, since the copy is evidence by the act of 
 congress. He here vindicated General Wilkinson from 
 the attacks which were wantonly made upon him ; saying, 
 it was the policy of Mr. Burr and his counsel to endeavor 
 to tear down his character before he arrived, and that 
 every principle of propriety was violated by such conduct. 
 He asked if it was right that a man, high in the confi- 
 dence of government and of his country, should be thus 
 attacked, and declared he should be sorry for the character 
 of his fellow-citizens, if the abuse lavished on him by the 
 accused should have the slightest effect on the event of 
 the trial, i 
 
 Mr. Mac Rae said it was plainly to be inferred from 
 the president's message to congress, that the letter 
 in question was confidential. It appears that the presi- 
 dent furnished extracts of some of the letters he 
 received relative to Mr. Burr. His not furnishing 
 congress with a copy of this or any other part of it, 
 is presumptive evidence that it ought not to be made 
 public. 
 
 Mr. Randolph. May it please your honors : To the 
 observations I shall make, I have no preface norapolosry. 
 I beg leave to appropriate to argument the time which 
 falls to my lot in the discussion of the present motion. 
 I did not believe, sir, that to-day there would have been 
 a resurrection of the discussion which took place yester- 
 day ; but since the attorney on the part of the prosecu- 
 tion has thought proper to introduce it, I shall not 
 shrink from it, but meet it. I make no appeal to the 
 multitude ; it is not my desire to excite the sympathy, 
 or rouse improperly the feelings of the bystanders. I 
 shall simply state the proposition. Why is Mr. Burr not 
 entitled to ask the court to issue a subpoena for the pro- 
 duction of those papers? Is Mr. Burr not now before 
 the court ? Is he not here upon his recognizance? Has 
 he not been here a considerable time on the tenterhook 
 of expectation, that when General Wilkinson, that great 
 accomplisher of all things, arrived, an indictment would 
 be preferred against him ? But has he, on that account,
 
 MOTION TO PRODUCE PAPERS. 143 
 
 resigned the rights of defense ? Is he to be tongue-tied 
 and hand-tied, without the privilege of defending him- 
 self? He can not be properly defended without the 
 production of these papers, and on that account he now 
 demands the interposition of the court. But, say the 
 counsel for the prosecution, he is not entitled to this 
 privilege until an indictment is preferred, and the grand 
 jury find a true bill. Why did we not hear this objec- 
 tion when the grand jury were empaneled ? It was 
 proved, yesterday, by several law authorities ; it was 
 proved, sir, by invariable practice ; and it was proved, 
 by a wish of all our souls, that the accused ought to have 
 this privilege from the very commencement of the pros- 
 ecution. Wherefore, then, sir, are we to be vexed and 
 perplexed again with this objection? Wherefore do 
 they say it is premature on the part of my client? I see 
 a corps of worthies around me, to justify what I say. 
 Every man, I assert, who appears on the grounds of a 
 recognizance, stands in the same condition as one on his 
 trial. Are you to shut a man out from evidence because 
 he is only accused, because his life can only be forfeited ? 
 There is a iiarshness in this ; there is a severity in this 
 sentiment, which, however agreeable it may be to the 
 principles of law, I have to thank God, has never been 
 my practice. The principles to which I have been accus- 
 tomed have always agreed with truth, and the sacred 
 books of the scripture. No bill is yet found ; and I 
 trust none ever will. The amendment to the constitu- 
 tion, they say, does not apply to the present case, but to 
 a trial. We no not mean to force this point, although 
 ample authority might be produced in support of it. 
 You, sir, will certainly do what is right in the present 
 motion ; this we do not mean to doubt ; but you will 
 give me leave to ask, what our situation would be, in 
 what a deplorable dilemma we should be placed, if, at 
 the instant, the attorney was pressing us with his testi- 
 mony, we had to supplicate your honors to grant us the 
 purport of the motion now in question ? and if the trial 
 could not be postponed (which in all probability it would 
 not), we must go to a final decision without it. In that 
 case, even were the sun of innocen.ce ready to shed his 
 beams upon us, we would be cast into utter darkness.
 
 i 4 4 TRIAL OF AARON BURR. 
 
 No, sir, such can never be the opinion of this court: jus- 
 tice must be changed; law must be changed; nature 
 must be changed, before such sentiments can be heard. 
 I will not trouble you much further with discussing the 
 propriety of our application, feeling the confidence with 
 which I am certain it is regarded by the court ; but I will 
 come directly to the consideration of what are the real 
 points in discussion. 
 
 This is not whether a president can be summoned : 
 that part is happily conceded ; and I rejoice that we 
 mistook in the commencement of the argument, the 
 sentiments of the attorney on the part of the prosecu- 
 tion on this point. I rejoice, I say, that I did mistake 
 him ; because, from that very concession I will draw 
 every corollary that may be necessary for establishing 
 the great point for which we contend. By admitting 
 that the president of the United States can be sum- 
 moned, a great canon of evidence is admitted. I must, 
 however, be excused by the worthy gentlemen, if I tell 
 them they are a little inconsistent. In throwing ob- 
 stacles in our way against obtaining the papers for which 
 we have moved the court to issue a subpoena, they 
 imitate that bad example which they have imputed to 
 us. What is the nature of the evidence we do ask? 
 We ask for that sort of evidence which may enable us to 
 confront James Wilkinson with himself. There is not 
 an idea beyond this. We wish to show that James 
 Wilkinson, in his official capacity as commander of the 
 army of the United States at New Orleans, is not the 
 same with James Wilkinson the correspondent of the 
 president. We wish to prove that James Wilkinson has 
 varied from himself, and that he has varied in most 
 essential points in the greatest degree. Mr. Hay tells 
 us that everything depends upon this same James Wil- 
 kinson ; that he is, in reality, the AlpJia and Omega of 
 the present prosecution. - He is, in short, to ^support by 
 his deposition the sing-song and the ballads of treason 
 and conspiracy, which we have heard delivered from one 
 extremity of the continent to the other. The funeral 
 pile of prosecution is already prepared by the hands of 
 the public attorney, and nothing is wanting to kindle 
 the fatal blaze but the torch of James Wilkinson. He
 
 MOTION TO PRODUCE PAPERS. 145 
 
 is to exhibit himself in a most conspicious point of view 
 in the tragedy which he fancies will take place. He, 
 James Wilkinson, is to officiate as the high priest of this 
 human sacrifice. 
 
 Of James Wilkinson we are not afraid, in whatever 
 shape he may be produced ; in whatever form he may 
 appear before this court. We are only afraid of those 
 effects which desperation may produce in his mind. 
 Desperation, may it please the court, is a word of great 
 fitness in the present case. General Wilkinson we 
 behold first acting as a conspirator to insnare others, 
 afterwards as a patriot to betray others from motives ot 
 patriotism. What must be the embarrassment of this 
 man when the awful catastrophe arrives, that he must 
 either substantiate his own innocence by the con- 
 viction of another, or be himself regarded as a traitor 
 and conspirator, in the event of the acquittal of the 
 accused. 
 
 Is it not to be supposed that General Wilkinson will 
 do many things rather than disappoint the wonder- 
 seizing appetite of America, which for months together 
 he has been gratifying by the most miraculous actions? 
 If I am not mistaken, I have seen it in some of the pub- 
 lic prints that he is no longer the vicegerent of the 
 Upper Louisiana ; and if I may be indulged with the 
 slightest power of prophecy, I may predict that this 
 same General Wilkinson, who has been astonishing the 
 citizens of New Orleans with plots and conspiracies, will, 
 before many weeks, only figure in the capacity of a pri- 
 vate citizen. I shall not say that Generel Wilkinson 
 would commit perjury ; let me not be understood as 
 making such an assertion ; but if I know human nature, 
 if I understand the feelings of the human breast, if I 
 have the slightest knowledge of those principles which 
 govern the mind of man, I may be allowed to affirm, 
 that every feeling would be asleep in his breast if he did 
 not use every exertion in his power for the conviction of 
 Mr. Burr. Upon the conviction of Mr. Burr, upon the 
 guilt, I say, of Mr. Burr, depends the innocence of Gen- 
 eral Wilkinson. If Mr. Burr be proved guilty, then, 
 indeed, General Wilkinson may stand acquitted with 
 many of his countrymen ; but if Mr. Burr be not found 
 10
 
 i 4 6 TRIAL OF AARON BURR. 
 
 guilty, the character, the reputation, in short, everything 
 that deserves the name of integrity, will be gone forever 
 from General Wilkinson. Sir, in that event, I say, in 
 the event of Burr's acquittal, as sure as man is man, 
 storms and tempests will cover the western glory of Gen- 
 eral Wilkinson, and gather darkness all around him. 
 We have, therefore, the justest cause to scrutinize this 
 gentleman's deposition. We have the strongest reasons 
 to examine this gentleman's character, and to trace him 
 in his most confidential walks. From his letters we 
 have already had some glimpse of him ; but 1 should 
 wish, as I have said, to have him confronted with him- 
 self; I mean, to have his correspondence with the presi- 
 dent of the United States opposed to whatever state- 
 ment he may deliver here. I shall therefore suppose, by 
 way of illustration, that the president were here, and 
 certain questions were put to him. The president 
 certainly could not dispense with answering these 
 questions. Much as I respect the illustrious character 
 of the president of the United States, yet I should 
 begin to imagine that the sheet-anchor of our govern- 
 ment was gone, if the president could be excused more 
 than any other individual before this court, from answer- 
 ing any questions which might be put to him. It is 
 really most extraordinary that these gentlemen should 
 tell us, after arriving in the porch of the temple, that we 
 shall not go into the sanctum sanctorum ; that we are at 
 liberty to know part of the correspondence which has 
 taken place between General Wilkinson and the presi- 
 dent of the United States, but not the whole. 
 
 The gentleman for the prosecution has to-day, sir, 
 given us an eulogium upon himself an'd his associate 
 friends. He has pictured to us the zeal and the anxiety 
 he has had for the production of those papers, and has 
 assured us that he has already taken means for having 
 them here. I thank the gentleman for his exertions, 
 but at the same time I must beg leave to remark the 
 equal zeal with which he and his friends combat our 
 application. If Mr. Burr were now asking you for these 
 papers, without showing any probable cause that they 
 were material, this, indeed, would be a wanton, woman- 
 ish, feverish curiosity ; but it is no such curiosity : we
 
 MOTION TO PRODUCE PAPERS. 147 
 
 have shown in the fullest manner that they are material 
 and of the first importance. It is said that by their pro- 
 duction General Wilkinson, that huge Atlas, on whose 
 shoulders the American world is sustained, is wished to 
 be represented as a man in whom confidence ought not 
 to be placed. But, I say, if the production of these 
 papers were to effect the annihilation of General Wilkin- 
 son, that I hope and believe no other visible chasm in 
 the creation would be produced, but in that portion of 
 space at present occupied by his material body. How 
 can the rank and safety of General Wilkinson be con- 
 cerned in the production of these papers? General Wil- 
 kinson is only an organ in the hands of government. 
 As to his glory, I believe its meridian splendor is set, and 
 that he will be no longer worshipped as the political 
 Messiah of America ; but even if he were crucified, I 
 trust it would make no era in our time. Suspicion at 
 all events belongs to him. He stands in that character 
 which is always regarded as odious ; that of an approver. 
 He has confessed himself guilty of the most heinous ot 
 crimes, for the purpose of entrapping others ; of render- 
 ing others equally infamous with himself. 
 
 We are told that our motion goes to reveal state 
 secrets; that confidential characters are to be brought 
 into view ! State secrets ! The very name strikes me with 
 horror! I have heard one of the gentlemen concerned, 
 renounce the idea, and I shall not again be the means ot 
 recalling the principle. Sir, I will not say that there 
 ought not to be a limitation with respect to the produc- 
 tion of state papers. But in what character is the name 
 of General Wilkinson inscribed in the roll of fame, to 
 entitle his actions to be concealed? Is the safety of this 
 country to be endangered by calling upon him as a wit- 
 ness, who is known and declared to be one of the arch- 
 witnesses of this prosecution ? Is the national safety to 
 be endangered by this? A nation stand upon this? a 
 nation which ought only to look to the Almighty for its 
 rule ! Shall the people of this country be considered as 
 in danger, though this motion be granted? Should they 
 be in danger, though General Wilkinson were given up 
 to be buffeted ? I should be very unwilling indeed that 
 a single name should be unnecessarily exposed ; but are
 
 148 TRIAL OF AARON BURR. 
 
 one man's fortune, character, and life to be brought into 
 jeopardy in order to conceal the names of others ? Is 
 this to be the shield under which General Wilkin- 
 son is to be screened? Is the executive bureau to be 
 made a sanctuary of scandal, to protect the fame of 
 General Wilkinson, and when opened at some future 
 period, to display to the citizens of this country, a tale 
 perhaps as horrid as many of those which the red book 
 of France has unveiled ? The revealing of confidential 
 secrets has also been objected to. Two cases of this 
 nature were yesterday ably detailed by the counsel asso- 
 ciated with me. The case of Lord Barrington, and the 
 surgeon, whose evidence was given on the trial of the 
 duchess of Kingston ; but, sir, I have seen within the 
 walls of this house, a case still more affecting ; a case in 
 which, if ever confidential secrecy was to be pleaded, it 
 ought then to have been sustained. This, sir, was the 
 case of a young lad of sixteen years of age, who \vas 
 arraigned at this bar for a criminal offense. His infant 
 mind, and the feelings of his heart, had been unburdened 
 to his father alone. He, led by paternal affection, was 
 anxiously attending at the side of the lad, at the issue 
 of the trial. The attorney for the state, after fruitlessly 
 examining all the evidence for the prosecution, and find- 
 ing no testimony sufficient to sustain it, at length darted 
 his keen and penetrating eye upon the distressed parent. 
 He immediately made an application to the court to 
 compel him to give evidence against his son. The court 
 were greatly affected ; tears streamed from their eyes. I 
 defended him. I do not know that I used any reasoning 
 on the subject ; but the close ties of father and son, and 
 the nature of confidential secrecy, were in vain pleaded. 
 The court determined that he was a competent witness, 
 and must be sworn to testify ; and were about to compel 
 the father to give testimony against the son, who on this 
 testimony alone would have been convicted. The father 
 . approached the book, and was going to swear ; but, for 
 the honor of Virginia, the records of the state were not 
 blotted with so sanguinary a sentence. The scene was 
 so truly affecting, that at the recommendation of the 
 court the demand for his evidence was not persisted in. 
 But is General Wilkinson the child of the president of
 
 MOTION TO PRODUCE PAPERS. 149 
 
 the United States ? Is the president to be viewed as the 
 father of General Wilkinson? Is Mr. Jefferson to be 
 placed in the same situation with respect to James Wil- 
 kinson, as the parent I have mentioned, with regard to 
 the boy? Are the hearts of Mr. Jefferson and General 
 Wilkinson connected by the same tender ties of sympa- 
 thy^as those of a father and son ! The law is, that every 
 man, who is not interested in the event of a cause, is a 
 witness, and bound to give his testimony when called on, 
 except in cases of professional confidence. 
 
 The objection to the insufficiency of the affidavit is 
 unfounded. It is a work of supererogation to make it 
 at all. It was not necessary to entitle us to make the 
 president disclose the paper. It is evident, without it, 
 that he ought to produce it. We proceeded in this by 
 way of frank accommodation, to prevent the necessity of 
 his attendance. As they deny, we insist on the right to 
 draw this paper from the president's pocket. [Here he 
 expressed a hope that he had not misunderstood Mr. 
 Wirt, concerning the "necessity of the affidavit. Mr. Wirt 
 repeated what his argument had been, and the Chief 
 Justice stated that the impression of the court was sim- 
 ilar.] A man ought not-to be precluded from evidence 
 which he thinks material, though he does not know it to 
 be positively so. If the paper were not in a bureau of 
 office, we should want no subpcena duces tecum. It stands 
 on the same ground as a common subpcena, and we have 
 the same right to have it as to have a common subpcena. 
 But the object being to obtain the paper only, if it be 
 tramsmitted and found to be different from what it has 
 been represented to be, the witness would then be ex- 
 cused from attending. 
 
 If our affidavit stated the materiality of the paper, 
 and yet the paper should be found to be otherwise, we 
 should then have to encounter the full torrent of Mr. 
 Hay's invectives, for having incautiously sworn to what 
 was incorrect, although the affidavit stated the fact pre- 
 cisely, as Mr. Burr had every just reason to believe it. 
 Mr. Burr desires to obtain this paper, but he knows not 
 its contents; he can not say what is in it, but we have 
 the holy word of the president himself that it relates to 
 *Jr. Burr. This is one of the few things which he has
 
 i 5 o TRIAL OF AARON BURR. 
 
 done wrong. The president testifies that Wilkinson has 
 testified to him fully against Burr. I am absolved from 
 all scruples on this subject. I have a right to demand 
 peremptorily Wilkinson's letter, when it is said that it will 
 prove Burr's guilt. The president's declaration of Burr's 
 guilt is unconstitutional. I den)' his right to make such 
 a declaration against any man, or to make such an infer- 
 ence from statements made to him. The constitution 
 gives him no such right ; and its exercise by the president 
 would be dangerous. It may and must excite unjust 
 prejudices, and create a powerful influence against a man 
 who is really innocent. The constitution very wisely 
 withholds from the president a power so unfavorable to a 
 fair trial between the public and individuals accused, and 
 so dangerous to the liberties and lives of the citizens. I 
 hope it is no rebellion, but I hope our objection to this 
 dangerous and unconstitutional declaration of the presi- 
 dent will be handed down to posterity, to prevent his 
 conduct in this respect from being imitated. Congress 
 did not call upon him for his opinion. They would have 
 been satisfied with his statement of public transactions, 
 without his opinion. He is to see that the laws be faith- 
 fully executed, and to give information with respect to 
 the state of the Union ; but he is not to give opinions 
 concerning the guilt or innocence of any person. 
 
 A copy of this letter would do in every other sense, or 
 for any other purpose ; but the original must be produced 
 to Wilkinson, otherwise he might deny it to be his. If 
 a copy were produced, he might deny that he had written, 
 and on every correct principle of law demand the pro- 
 duction of, the original. He would look towards the city 
 of Washington, and consider the consequences of testi- 
 fying here. He would consider how the government 
 would view his conduct. He might know it to be a true 
 copy, and yet be afraid to say so. Perhaps there might 
 be inducements for him not to deny it ; but suppose he 
 were to deny it at the trial, could you discharge the jury 
 till the original was brought? No sir, you could not; and 
 every objection would be made and sustained against 
 reading the copy. Original papers only have ever been 
 admitted as evidence in penal cases. There is no instance 
 ?f a conviction, in a capital case, on the copy of a letter
 
 MOTION TO PRODUCE PAPERS. 151 
 
 as evidence. The case of Smith and Ogden is egre- 
 giously misunderstood on this point. [Here Mr. Wirt 
 explained. Mr. Randolph read the case and proceeded.] 
 The affidavit was wanted there to put off the trial. To 
 postpone a trial the utmost precision (precision ad 
 unguent) is necessary ; but on a motion to take testimony 
 belief is sufficient. 
 
 I believe that Mr. Jefferson ought to hasten to produce 
 that paper. His regard for the promotion of public 
 justice ought to induce him to do it. His character 
 requires that he should produce it. Lest that character 
 should surfer, I would almost ask it for his sake. Gentle- 
 men say, why do we not rely upon him, and demand it 
 of him ? I answer that, without the orders of this court, 
 the prospect of obtaining it is very unpromising, after 
 we have made an application to one of his secretaries 
 (Mr. Smith), and received from him a positive and 
 peremptory denial, with a declaration that the orders 
 were intended for the officers alone who were to execute. 
 Mr. Van Ness had said that there had been a promise 
 made to furnish it to Mr. Burr's counsel; but the prom- 
 ise had not been performed. The orders could not be 
 secret, since they were published in The Natchez Ga- 
 zette. Can there be any hopes, then, of obtaining them 
 from the president himself? Time has been taken, and 
 he has very probably been consulted. Mr. Hay is not 
 authorized to produce the papers, although he has some 
 of them. As then it is probable that the heads of 
 department have been consulted, in the time which has 
 elapsed since bur application was made ; as the secretary 
 of the navy has refused to furnish these papers, and the 
 attorney will not permit us even to look at the papers in 
 his possession, I trust we shall be excused for not apply- 
 ing to the president, without the order of this court. 
 
 It is again said that this letter is confidential. I must 
 revert to the president once more. He is but a man, has 
 ears and eyes, and can see and hear like another man ; 
 he may be a witness like other men ; he has no preroga- 
 tive to have any secrets, the withholding of which may 
 go to the destruction of the dearest interests of an 
 accused man. Mr. Hay has been pleased to call the 
 affidavit " farcical." I wish he had been so good as to
 
 152 TRIAL OF AARON BURR. 
 
 tell us how he would have had it drawn. [Here he read 
 it.] Mr. Burr has indications that it is material. The 
 president, in his message to congress, in announcing the 
 doubtless guilt of Mr. Burr, has made himself judge and 
 accuser. The opposition now made to its production 
 justifies the opinion that the letter contains more than 
 has yet been disclosed; that there is something more 
 behind the curtain. Sir, I contend that when the dearest 
 interests of a fellow-citizen are involved, the president's 
 cabinet is not too sacred to be examined and exposed to 
 view in a court of justice. I know that the present 
 president abhors such conduct; but would you permit a 
 future president to hunt down any man by proclamation, 
 declaring him to be guilty of treason, and withholding a 
 part of the facts on which his opinion is founded? This 
 puts an engine into the president's hands to destroy an 
 enemy, by giving a partial statement of facts, while he 
 publishes the most unfavorable opinion of him. Mr. Hay 
 indulges himself in little verbal criticisms ; he says that 
 " may be material," is the same thing as " may or may 
 not be material." Sir, Mr. Burr believes that they may 
 be material. With this impression he has made the affi- 
 davit, which in my opinion is sufficiently explicit, if an 
 affidavit be at all necessary. Something has been said 
 of unmasking our defense. Do you wish us to tell Gen- 
 eral Wilkinson all the grounds upon which he will be 
 attacked. We only say that he is grossly inconsistent 
 in his disclosures, and that he will be contradicted. We 
 can not go further while the contents of his letter are 
 unknown to us. 
 
 But Mr. Burr's affidavit is not to be attended to, 
 because he has feelings and may be misled by them ! 
 It is the same thing with every other man. Because a 
 man is interested, he is more ready to make known to 
 the world his injuries and assert his innocence. But I 
 must notice that part of the argument relating to these 
 orders of the government, wherein my friend Mr. Mar- 
 tin was charged with speaking treasonably. This has 
 raised an amazing clamor. I added, the other day, the 
 illegality of these orders, as then understood by me, to 
 the other causes of dissatisfaction with the conduct of 
 the president. But I now learn that these orders were
 
 MOTION TO PRODUCE PAPERS. 153 
 
 worse than I expected: that they were to burn, kill, and 
 destroy the person and property of Mr. Burr and his 
 party. Whether the orders were exactly to this effect 
 or not, I am not sure ; but I believe this statement not 
 to be very incorrect, and the refusal of gentlemen to 
 produce them proves that there is something behind ; or 
 why does not the attorney produce the copy he has in 
 possession ? Mr. Martin never did say (as I understood 
 him) that these orders justified an opposition to the gov- 
 ernment of the United States. Whatever he did, we 
 shall contend was legal, and not in opposition to the 
 government. But I will say, that if the president had 
 called out a military force, illegally, to destroy the per- 
 son or property of any man, that man had a right to 
 resist. The orders to destroy the person and property 
 of Mr. Burr, if given, were unconstitutional and unjusti- 
 fiable. If I am wrong in my statement I pray to be set 
 right; but if I recollect the constitution correctly, it does 
 not justify such orders in such a case as this. It only 
 empowers congress " to provide for calling forth the 
 militia to execute the laws of the Union, and to suppress 
 insurrections and repel invasions." The president is 
 sworn " to preserve, protect, and defend the constitution, 
 and he is to take care that the laws be faithfully 
 executed." " The United States are to protect each 
 state against invasion and against domestic violence, on 
 application of the legislature, or of the executive when 
 the legislature can not be convened." The president is to 
 call out a military force only to suppress insurrections or 
 to repel invasions. Was this either ? There certainly was 
 no invasion of our country by a foreign nation. If there 
 *had been an insurrection the state governments might 
 have interfered. Was there any application for aid by 
 any state government ? There is a third case, it must 
 be admitted, in which an armed force may be resorted 
 to. I mean infractions of the law of nations by armed 
 vessels. These are the only three cases in which the 
 president is, or can be authorized by the law of congress 
 under the constitution to call out a military force ; and 
 as none of them occurred, those orders were illegal and 
 unjustifiable. 
 
 Chief Justice. Does not the law of congress authorize
 
 154 TRIAL OF AARON BURR. 
 
 the president to call out the militia to suppress an 
 expedition against any foreign state in amity with the 
 United States? 
 
 Mr. Wirt said that the act of congress passed in the 
 year 1794, expressly required the president to employ 
 military force to suppress or prevent any such ex- 
 pedition. 
 
 Mr. Botts said that Mr. Burr could not say more posi- 
 tively than that " it may be material." That as he 
 did not know what evidence might be adduced against 
 him, it could not safely be otherwise expressed. 
 
 Chief Justice. Could not the word be changed to 
 "will?" 
 
 Mr. Botts. For the sake of precedent I wish it 
 to remain as it is. 
 
 Mr. Wirt. If the word " will " were to be inserted in- 
 stead of " may be," the objection to the generality of 
 the affidavit would still remain. 
 
 Mr. Martin. Agreed ; but we will speak of that here- 
 after. 
 
 Mr. Wirt. Examine the letter ; it only goes to the 
 guilt of Mr. Burr. How can it confront Wilkinson if it 
 speaks of the guilt of Burr ? 
 
 CJiief Justice. But there may be contradictory state- 
 ments of guilt. 
 
 Mr. Wirt. But the prima facie evidence of this letter 
 is, that it charges guilt ; but there is no evidence of con- 
 tradiction, there are only vague insinuations. The law 
 of congress authorized the president to act as he did. 
 By the /th section of this law, " the navy or army of the 
 United States may be called out to take such ship or # 
 vessel," and also for the purpose of quelling any force 
 raised for carrying on any expedition against any coun- 
 try with which the United States are at peace. 
 
 Mr. Randolph proceeded. The object of requiring the 
 orders to be produced is, to ascertain whether they be 
 conformable to the law ; and no power to call out the 
 militia in the commencement of an expedition, or in be- 
 ginning to prepare the means, is given by the law. I 
 will suppose, for a moment, what I utterly deny to be 
 the fact, that Mr. Burr had actually begun an expe- 
 dition, had prepared arms, vessels, men, &c. ; yet, as
 
 MOTION TO PRODUCE PAPERS. 155 
 
 penal laws are to be construed strictly, he could only be 
 stopped under this law, when the expedition was actually 
 formed and carried on. But it is insinuated to be im- 
 proper to ask the president, and not the officers of gov- 
 ernment, for those papers. The president is the person 
 who must be considered as having refused the papers. 
 All the officers act under him, and must obey him. Ap- 
 plication should be made to the department of state. 
 The chief justice said that the department of state ought 
 not to be applied to. [See Mr. Hay's argument.] As 
 to the letter, it must be in the president's bureau ; for, 
 as far as we can discover, it is directed to him, and he 
 withheld it from the legislature. But it is asked, what 
 is to be done with the letter, if parts of it are not proper 
 to be exposed? This is a most extraordinary objection. 
 Shall we be refused the parts important for our defense, 
 because other parts are improper to be published ? An 
 arrangement could easily be made, by which only those 
 parts which are proper to be disclosed, should be used. 
 
 Sir, I must make a few remarks with respect to your 
 exhortation, and what was said by gentlemen yesterday 
 and to-day. We have been charged with the policy of 
 exciting prejudices against the administration, rather 
 than defending Burr. Hints were also thrown out as to 
 popular opinion. Sir, I never defend my client by popu- 
 lar prejudice. I know it would be in vain to attempt it. 
 I know who has got the windward of me. They have 
 the public approbation strongly in their favor. I know 
 how impotent is one individual, when opposed to the 
 power of the government. 'But I hope the arguments 
 we have been compelled to use, will have their due 
 weight with the court. The gigantic magnitude of the 
 crime charged against us, is diminishing every day ; and 
 we have nothing but an interested man, whose all is at 
 stake, to oppose us. We demand justice only, and if 
 you can not exorcise the demon of prejudice, you can 
 chain him down to law and reason, and then we shall 
 have nothing to fear. 
 
 Mr. Wirt. As to the denial of the law by Mr. Ran- 
 dolph and the gentleman from Baltimore, I insist that 
 they are mistaken ; and that the law is as I have stated 
 it to be. The respect which I owe to this court would
 
 156 TRIAL OF AAROft BURR. 
 
 prevent me from asserting for law, that which I do not 
 know to be law. Mr. Randolph has enumerated three 
 cases in which force could be used, and then sat down 
 majestically, and called the giant to be produced at 
 once? 
 
 Mr. Martin endeavored to explain, by saying that he 
 had not said that there was no such law. 
 
 Mr. Randolph explained. 
 
 Chief Justice. The truth is, that you did not advert 
 to the law. 
 
 Mr. Botts observed, that Mr. Wirt had said that the 
 law justified an order to kill Burr and his party, without 
 trial or condemnation. 
 
 Mr. Wirt denied it. He had only said that there was 
 such a law. I mentioned it before, said he, and I pointed 
 to it afterwards. I feel my candor impeached by the 
 course which gentlemen have thought proper to take. 
 If the court should doubt as to the construction of the 
 act of congress, I should wish to be heard further on the 
 subject. 
 
 Mr. Randolph said that he meant nothing personally 
 against Mr. Wirt ; but he had said that he knew no law 
 that was applicable ; and he now insisted that the law 
 was as he represented. 
 
 Mr. Martin asked leave to speak again ; and the court 
 was adjourned till to-morrow. The grand jury was ad- 
 journed till Saturday. 
 
 FRIDAY, June i2th, 1807. 
 
 Mr. Martin. I shall now, may it please your honors, 
 make a few observations, in which I shall endeavor to 
 avoid all extraneous matter. This has been uniformly 
 asserted by the gentlemen for the prosecution, to be a 
 motion addressed to the discretion of the court; and in 
 some degree admitted by the counsel with whom I act. 
 But the practice in the state from whence I came (Mary- 
 land) is different. Ksubpana duces tecum is never applied 
 for in court. It is issued, of course, by the clerk, acqui- 
 esced in by the parties and counsel, approved by the 
 court, and never opposed. According to that practice, 
 (and which gentlemen will excuse me for mentioning, as
 
 MOTION TO PRODUCE PAPERS. 157 
 
 they have so repeatedly called on me to state whether 
 I had known such a process to issue in such a case), the 
 right of the prosecuting counsel to oppose the demand 
 of the accused is denied ; and it is no more competent 
 for them to do this, than to oppose the granting sub- 
 poenas for living evidence. It would be deemed highly 
 indecorous to make such an opposition. They ask us 
 the reason why we make this motion. We tell them 
 that the object of the accused, in demanding the s pro- 
 duction of General Wilkinson's letter, is, that we may 
 compare its purport with that of communications which 
 he has made to others. If he has made inconsistent or 
 contradictory statements, and we can prove that he has 
 done so, we certainly have a right to avail ourselves of 
 it, to lessen or destroy his credit. But its production 
 is opposed on the ground of its containing state secrets; 
 and that it may expose the names of others presumed 
 to be implicated. Is this exposure to be prevented at 
 the hazard of Mr. Burr's life ? Innocence can not suffer 
 by exposure: guilt ought to be detected. What, sir! 
 shall the cabinet of the United States be converted into 
 a lion's mouth of Venice, or into a repertorium of the 
 Inquisition ? Shall envy, hatred, and all the malignant 
 passions pour their poison into that cabinet against the 
 character and life of a fellow-citizen, and yet that cab- 
 inet not be examined in vindication of that character, 
 and to protect that life ? Shall a citizen be privately 
 accused, and the name of his accuser not even made 
 known to him ? No more of this letter is sought to be 
 used as evidence than relates to the accused. When the 
 letter is produced the court can judge of it, and with- 
 hold from the public any secrets which ought not to be 
 disclosed. The mere possibility of its containing state 
 secrets is no reason why there should be a suppression 
 of what is no secret. Gentlemen tell us that they are 
 perfectly willing we should get it ; and yet they throw 
 impediments in our way to prevent us from getting it ! 
 
 Mr. Hay declared that he had written for the letter, 
 and had done everything in his power to obtain it, 
 though gentlemen seemed disposed not to credit him. 
 
 Mr. Martin. If we were certain that the gentleman 
 would succeed in his application we should be disposed
 
 158 TRIAL OF AARON BURR. 
 
 not to trouble the court with this motion. But can we 
 depend on his success when the gentleman tells us that 
 when the papers come he will not let us look at them ? 
 What will be our situation after the trial is begun if the 
 papers do not come? It will be then too late to move 
 for a postponement ; and we shall lose the evidence. 
 We are entitled to it now, and ought to have it. I can 
 not say that I feel disposed to rely much on the favors 
 of an adverse party. " Timeo Danaos et dona ferentes" 
 I prefer the enjoyment of my certain rights to the 
 promises of him whose interest is opposed to mine. 
 
 But we are told that there ought to be respect 
 between the departments of government ; that we ought 
 to respect the president. Is it derogatory from that 
 respect to issue process to obtain necessary testimony 
 from him ? Will the president think himself insulted by 
 the demand of a mere document? Can he possibly 
 think it disrespectful? But suppose he should, is 
 the life of a man, lately high in public esteem, not 
 indeed the first, but the second citizen in our coun- 
 try, to be endangered for the sake of punctilio to the 
 president of the United States? Sir, we appeal to the 
 Supreme Maker that we only wish justice, and fear only 
 perjury. We approach with uplifted hands the sacred 
 altar of justice, as a sanctuary to screen us, not from 
 just punishment, but from unjust, rancorous persecu- 
 tion ! and from this sanctuary we confidently expect 
 protection. 
 
 But we are told that a copy will be sufficient. But 
 will the copy show that the original is not a forgery ? 
 It may prove that there is a paper, of which it is a copy, 
 deposited in the office ; but it will not prove that the 
 paper so deposited is the handwriting of General Wil- 
 kinson. If General Wilkinson wrote a libel and sent it 
 to the president, would a copy be admitted as evidence 
 against him on a prosecution for the libel ? Copies are 
 never admitted as evidence in prosecutions for libels or 
 in any criminal prosecutions. But gentlemen say that 
 General Wilkinson would not dare to deny that he had 
 written it if the counsel agreed that it should be evi- 
 dence. Would that make it in his handwriting? Gen- 
 eral Wilkinson has already violated his oath in willfully
 
 . MOTION TO PRODUCE PAPERS. 159 
 
 and tyrannically violating the constitution he had 
 solemnly sworn to support. Has he not .exercised the 
 most wanton military despotism ? Has he not insult- 
 ingly resisted and trampled under foot the constituted 
 authorities, in disobeying the writ of habeas corpus? 
 Has he not done all these things in open defiance and in 
 palpable violation of the plain letter and meaning of the 
 constitution ? He comes here to justify these misdeeds. 
 A man who has done a series of bad acts will not fail to 
 add one more in order to conceal them from view, and 
 secure himself from punishment. Though he is the 
 pivot on which the prosecution turns, and, therefore, the 
 counsel for the United States uphold him, Mr. Burr 
 has not confidence in the honor or integrity of General 
 Wilkinson to trust his life to his veracity. But it is said 
 that if he should deny it, then we can send for the orig- 
 inal. He would have no occasion to deny it till the 
 jury were sworn to try Mr. Burr ; and if the testimony 
 on both sides were equal, and the scales of justice hang- 
 ing even, the denial of General Wilkinson put in the 
 scale against us M r ould predominate; then it would be 
 too late so send for the original to confront and disprove 
 his denial ; the "fiat " of life and death must be deter- 
 mined by the evidence before the jury ; we ought, there- 
 fore, to get the original now. 
 
 But the gentleman asserts that we have made the mo- 
 tion "in order to glance at the president. We disclaim 
 such motives. It would be dastardly to make a court of 
 justice the scene of such detraction ; the means to abuse 
 individuals. We deny such motives; nor are gentlemen 
 warranted in imputing them to us. 
 
 But the gentleman has told us that respect ought to be 
 paid to the officers of government. It is granted. I 
 once thought so. I thought that the officers of govern- 
 ment ought to be treated with high respect, however 
 much their conduct ought to be the subject of criticism ; 
 and I invariably acted according to that principle. If I 
 have changed my opinion, 1 owe it to the gentleman 
 himself, and the party he is connected with. They for- 
 merly thought differently. That gentleman and his 
 friends so loudly and incessantly clamored against the 
 officers of government, that they contributed to effect a
 
 160 TRIAL OF AARON BURR. 
 
 change in the administration, and are now in consequence 
 basking in the sunshine of office ; and therefore they 
 wish to inculcate and receive that respect which they 
 formerly denied to others in the same situation. We 
 have a right to inspect the orders issued from the war 
 and navy departments ; because, if they were illegal, we 
 have a right to oppose them. If they were unconstitu- 
 tional and oppressive, it was right to resist them ; but 
 this is denied, because we are not trying the president. 
 God forbid we should. But we are trying if we had a 
 right to resist. If every order, however arbitrary and 
 unjust, is to be obeyed, we are slaves as much as the 
 inhabitants of Turkey. If the presidential edicts are to 
 be the supreme law, and the officers of the government 
 have but to register them, as formerly in France (the 
 country once so famed by these gentlemen for its progress 
 and advancement towards liberty); and if we must sub- 
 mit to them, however unjust and unconstitutional, we 
 are as subject to despotism as the people of Turkey, the 
 subjects of the former " Grand Monarques " in France, or 
 those of the despot Bonaparte at this day. If this were true 
 where would be our boasted freedom ? where the superior 
 advantages of our government, or the beneficial effects 
 of our revolutionary struggle? I will take the liberty 
 of explaining how far resistance is justifiable. The pres- 
 ident has certain known and well defined powers ; so has 
 a common magistrate, and so has a constable. The pres- 
 ident may exceed his legal authority, as well as a magis- 
 trate or a constable. If a magistrate issue a warrant and 
 direct it to a constable, resistance to it is at the peril of 
 the person resisting. If the warrant be illegal, he is 
 excused ; but if it be legal, he is not. On the same 
 principle, resistance to the orders of the president is 
 excusable, if they be unconstitutional and illegal. Re- 
 sistance to an act of oppression, unauthorized by law, 
 can never be criminal; and this is all we contend for. 
 
 Mr. Hay stated that he was sorry to interrupt 
 the gentleman; but, from his argument, it was evident 
 that the ground taken by himself and the gentlemen 
 associated with him in the prosecution was entirely mis- 
 understood. He denied that he ever said that the presi- 
 dent's orders are invariably to be observed. That such
 
 MOTION TO PRODUCE PAPERS. 161 
 
 
 
 an assertion might justly be considered as incompatible 
 with the principles of our government. Mr. Hay then 
 explained what his argument had been, a/id what he 
 . meant to insist on as correct. That if information had 
 been lodged with the president that a dangerous con- 
 spiracy or insurrection against the government and laws, 
 or an expedition against a nation in amity with this 
 country, was secretly or openly forming, it was the duty 
 of the president to issue orders to suppress the insurrec- 
 tion or prevent the expedition ; and if he did issue such 
 orders or precept, it would not be lawful in an individual 
 to oppose them by force ; that an act of opposition to 
 his precept so issued, if not treason, would be at least a 
 high misdemeanor ; that such a precept was very different 
 from an order to kill or imprison without bail or main- 
 prise, or to raze to the ground and destroy, as a gentle- 
 man had represented the orders in question. A 
 
 Mr. Martin appealed to the court and bystanders 
 whether Mr. Hay's assertions or arguments had not been 
 substantially as he had represented them, and then con- 
 tinued. The gentleman expressed his surprise that such 
 doctrines should come from me, who come from Mary- 
 land to instruct and enlighten the Virginia bar. I come 
 not to instruct or enlighten. I come to unite my feeble 
 efforts with those of other gentlemen in defense of my 
 friend, whom I believe to be perfectly innocent of the 
 heavy charges against him ; but their conduct evinces 
 that if I were to attempt it, my instructions would be in 
 vain. If, however, I did venture to advise him, it would 
 be not to accuse us of evil intentions; to mix a little of 
 the milk of human nature with his disposition and argu- 
 ments ; to make his conduct conformable to his profes- 
 sions, and not to be perpetually imputing guilt to us. 
 But the gentleman needs no advice. 
 
 I have said that I believed the orders and letter to be 
 necessary. I will not examine now as to their legality; 
 that will be discussed hereafter ; but it is evident that 
 they are material to try whether they were legal or not ; 
 and if they were resisted, whether that resistance was 
 legal or not. The president is the proper person to 
 apply to, because all the officers of the government are 
 under his control. But two objections have been 
 
 II
 
 162 TRIAL OF AARON BURR. 
 
 
 
 made, which have not yet, within my recollection, been 
 answered : One is in the form of a question, that if this 
 evidence came, what would be done with it ? The answer 
 is obvious : that it must be retained by the court till it* 
 is wanted. The other objection is that there is no par- 
 ticular day to which the subpoena is legally returnable ; 
 the cause is not set on the docket to be tried on any 
 particular day, and therefore no particular day is named. 
 But this will produce no inconvenience ; in general, pro- 
 cess is made returnable on the first day of the term. 
 There the witness can attend as soon as it may be con- 
 venient ; that is, as soon as possible after the subpcena 
 shall have been served ; and it is in the power of the 
 court to make it returnable when they think proper. 
 [Here Mr. Martin made a reference to the practice in 
 Maryland, which was not distinctly understood.] I thank 
 the court for their patience in hearing these few observa- 
 tions ; whether time has been gained or not, the result 
 will show. 
 
 Chief Justice. The affidavit speaks of an answer to 
 General Wilkinson's letter. 
 
 Mr. Burr. Though I am extremely well satisfied with 
 the arguments of my counsel, as far as they have gone, 
 yet I shall offer a few additional remarks. The counsel 
 for the prosecution are mistaken when the say that it 
 would be improper to address the subpcena to the presi- 
 dent. The public papers are not kept in the department 
 of state, but in the separate departments according to 
 their nature. There is no official communication between 
 General Wilkinson, as a general or commander-in-chief, 
 and the the president; though there may be as governor 
 of Louisiana. The communications from him, as gen- 
 eral, are to the department of war. The president's letter 
 does not show where General Wilkinson's letter is depos- 
 ited. If addressed to him, it continues in his possession. 
 His communication to congress shows that he has it. 
 The course in congress is to apply directly to the presi- 
 dent for any papers or documents wanted, and not to 
 the secretaries ; because they are all under his control 
 and direction ; he can order them to deliver any paper 
 or document in their possession, and they must obey 
 him. Mr. Burr then- went more into detail, the substance
 
 MOTION TO PRODUCE PAPERS. 163 
 
 of which was that there was no evidence of the commis- 
 sion of treason ; that the president, in his communication 
 to congress, and in his proclamation, grounded on Gen- 
 eral Wilkinson's letter to him of the 2ist of October, 
 insinuates nothing of a treasonable nature; that in 
 these he states that an attack on the Spanish colonies 
 was supposed to be intended ; but if there had been any 
 just reason for believing that treason had been commit- 
 ted, the president would certainly have stated it ; that 
 he had been denounced by the highest authority in the 
 country ; that this denunciation had created a general 
 prejudice against him ; that the government ought to 
 furnish all the means in its power to remove the unjust 
 prejudices thus improperly excited against him ; that he 
 asked no privilege but what the laws conferred on ever)' 
 citizen. He demanded these papers, not for the purposes 
 of detraction, as had been unjustly asserted ; but to dis- 
 cover facts tending to prove his own innocence. He 
 denied, in strong terms, having advised or stimulated his 
 counsel to abuse the administration ; that, on the con- 
 trary, he had charged them to avoid all irritating reflec- 
 tions. He concluded by expressing his hopes that the 
 motion would be granted ; that if the court made the 
 order, the papers would be obtained without delay ; 
 whereas a previous application for them without such 
 order, if unsuccessful, would produce considerable delay, 
 which he wished very much to avoid ; and that the 
 approach of General Wilkinson required a prompt 
 opinion of the court to prevent delay. 
 
 Mr. Hay observed that he was much struck with the 
 boldness of some gentlemen on a subject on which they 
 were not correctly informed. He said that no opportu- 
 nity was lost to abuse the administration. He animad- 
 verted on the argument of Mr. Randolph the other day 
 That he had proclaimed loudly that some parts of the 
 orders of the navy department had excited in his mind 
 the most uneasy sensations. He confidently stated that 
 these orders were most cruel and illegal ; that they were 
 to kill and destroy Mr. Burr, and burn his property 
 wherever found. That the purpose of gentlemen was 
 easily discerned; that Mr. Martin, in his vehement man- 
 ner, talked about the hell-hounds and blood-hounds of
 
 164 TRIAL OF AARON BURR. 
 
 persecution having been let loose by the president or his 
 instrumentality, to hunt down and destroy Mr. Burr. 
 That he was sorry that gentlemen should ascribe such 
 acts to the government as not only it had never done, 
 but as it was incapable of doing. T.o silence their 
 clamors, and put an end to such declamations about 
 cruelty and tyranny, he said that he would produce a 
 copy of the order from the secretary of the navy, to 
 which all their complaints referred ; that he would read 
 it, and it would appear to be legal and proper; and that, 
 notwithstanding all the invectives against the administra- 
 tion on account of it, there was no just cause of com- 
 plaint against it. 
 
 The counsel of Mr. Burr wished to inspect the paper 
 before it was read. Mr. Hay offered to read it, but 
 refused to let them examine it. They then objected to 
 its being read, and insisted that it was the undoubted 
 right of counsel, iri every case, to examine all documents 
 intended as evidence before they could be read. 
 
 Mr. Hay then observed that their objection to its 
 being read showed clearly their object, and was a pal- 
 pable contradiction to their statement ; that they used 
 it as a mere pretext. Believing it not to be in court, 
 they loudly dejnanded it as a document essential to their 
 client and demonstrative of oppression in the govern- 
 ment ; but the moment it is offered to be read they 
 object to it. 
 
 Mr. Martin vindicated Mr. Burr from the charge of 
 having stimulated him to make any severe reflections ; 
 that Mr. Burr had, in fact, endeavored to restrain him ; 
 but that he was urged by his own feelings to express his 
 sentiments, contrary to the directions of his client. 
 
 Mr. Botts vindicated Mr. Randolph (who was absent) 
 from the charge preferred against him by Mr. Hay. 
 He did not believe that Mr. Hay had intentionally mis- 
 represented anything ; but that he was incorrect in say- 
 ing that the counsel of Mr. Burr had expressed com- 
 plaints without cause, and exhibited charges without any 
 evidence. We are, said Mr. Botts, in a delicate situ- 
 ation : great prejudices have been excited, and the popu- 
 lar voice is raised against us. But we hope that truth 
 and justice will prevail. We do not wish to accuse the
 
 MOTION TO INSTRUCT GRAND JURY. 165 
 
 executive unjustly ; innocence ought to be presumed until 
 guilt appears. We have prima facie evidence of what 
 we allege ; but still we hope that the honor and charac- 
 ter of the' government will be found to be unsullied, and 
 that all doubts respecting its conduct will be cleared up. 
 This can be most effectually done by producing freely, 
 without reserve or opposition, all the testimony in its 
 power, which we demand as material to our defense. 
 Mr. Burr wished us not to wander into charges against 
 the administration unless the proofs of its improper acts 
 were undubitable, and they were clearly connected with 
 this cause. 
 
 The chief justice, after having expressed the regret of 
 the court at the length of time already consumed in the 
 discussion of this motion, proposed that no more than 
 the usual number of counsel should speak on incidental 
 points. That the court was unwilling to check gentle- 
 men in their arguments, but it was hoped that hereafter 
 they would endeavor to avoid repetitions, and the un- 
 necessary waste of time. 
 
 Mr. Hay again proposed to read the letter of the 
 secretary of the navy. 
 
 Chief Justice. The propriety of reading depends on 
 its authentication. 
 
 Mr. Hay. I suppose the gentlemen wish to see it, 
 though not legally authenticated. 
 
 Mr. Martin expressed a doubt whether this was the 
 same order; he presumed that there were more orders. 
 
 Mr. Randolph (who had returned into court) wished to 
 see it, in order to ascertain whether it was the same 
 which they had seen in The Natchez Gazette. 
 
 Mr. Hay declared his belief that it was the same, but 
 as gentlemen did not wish to hear it he put it up again. 
 
 Mr. Burr addressed the court. He observed that 
 this was perhaps the most proper time for renewing the 
 motion which he had made some time ago, about giv- 
 ing more specific instructions to the grand jury on cer- 
 tain points of evidence. These points he had reduced 
 to writing, in the form of abstract propositions, which he 
 would take the liberty of reading to the court ; the fol- 
 lowing is a list of thpse propositions, with the authori- 
 , ies cited to support them :
 
 1 66 TRIAL OF AARON BURR. 
 
 First. That the grand jury can not, consistently with 
 their oath find a bill except on such testimony as would 
 justify a petit jury to find the prisoner guilty. Foster, 
 232, 8; 3 Institute, 25; 2 Id., 384; Dal ton, 519; 2 
 Judge Wilsons Works, 364 ; 3 St. Tr., 419, 420; and Sir 
 John Hawles' Observations, 4^. Tr., 133 ; 4 Black. ; 302- 
 306, 2 Hale, ch. 8, 61, Wilson's edition with Wilson's 
 note; 2 /fa/^, ch. 22, 157, with Wilson's note; 2 Euno- 
 mos Diet. 39, 124, 5, 6, ; 5 S/. Tr. 3 ; .fiwter, 232, 
 
 o 
 o. 
 
 Second. That no testimony or witness ought to go 
 to the grand jury, but what is legal and competent 
 to support the charge about which the inquiry is made. 
 Danby's case, Leech, 443, c. 187 ; Dodd's case, Id., 59, c. 
 77 ; Commonwealth of Virginia v. Hopbam, Warles & 
 Dtnvs, before the general court at Williamsburg. 
 
 Third. That the grand jury can not return a bill for 
 treason for levying war against the United States, unless 
 they have two witnesses who swear to the overt act of 
 the treason laid in the indictment ; both which wit- 
 nesses are believed by them. East's Crown Law, ch. 2, 
 64. 
 
 That both must be believed. 3 St. Tr., 56. 
 
 Fourth. That there must be two witnesses to the 
 grand jury of each overt act, follows also as a conse- 
 quence from the former position, that they must have 
 such testimony as would be requisite for the petit 
 jury. 
 
 Fifth. That the grand jury can not find a bill for 
 treason in consequence of any confessions made, though 
 proved by two witnesses. Foster, 241 ; 4 Black. ; Con- 
 stitution of the United States, article 3, 3 ; Graydons 
 Digest, n; Judge Iredell's charge, Fries s Trial, 171, 
 1 72 ; Easfs Crown Law, 96, 97. 
 
 Sixth. That as the grand jury only hear evidence 
 on the part of the state, if upon that evidence they 
 entertain a doubt of the truth of the charge, they ought 
 not to find a bill ; as the presumption is ever in favor of 
 innocence. I Mac N., 2- 6. 
 
 Seventh. No act of a third person can be given in 
 evidence against the accused to prove him guilty of 
 treason or of a misdemeanor under the law of the 5th
 
 MOTION TO INSTRUCT GRAND JURY. 167 
 
 June, 1794, unless that act is proved to have been com- 
 mitted by the advice, command, direction, or instigation 
 of the accused, if done in his absence, or if done in his 
 presence, unless it be proved that the accused was aiding 
 or assisting. 
 
 An act shall bind a person connected with the act, but 
 the declaration shall not bind him, because no part of 
 the act. Mac N., 615, 616. 
 
 Eighth. The declarations of others can not be given 
 in evidence on the present inquiry to support the charge 
 of treason or of a misdemeanor under the act of congress 
 1 5th June, 1794, unless it be proven that the accused was 
 present and assented thereto. 
 
 East, 96. In case of conspiracy, confessions good 
 against him who makes them, but not against others, 
 Peake,c}\. i ; Admiss. Hearsay Kelyng, 18; Mac N., 40, 
 41. Confessions of one can not be read against others. 
 3 St. Tr., 57. 
 
 A relation of what had been done, no evidence. Mac 
 N.,6i6. 
 
 Declarations of others are not evidence. 4 St. Tr. 192- 
 196. 
 
 6 St. Tr., 218. In the presence of others, they acqui- 
 escing. Mac N., 621. 
 
 Mr. Hay opposed this proceeding. He contended 
 that the court had no right to give specific instructions 
 to the grand jury after they had been once generally 
 charged by the court; that such a course was contrary 
 to all law and all precedent ; that not a single instance 
 could be quoted to support it ; and that there were 
 cogent, and in this instance particular reasons why crim- 
 inal prosecutions should be suffered to progress without 
 these interruptions. He further contended that the chief 
 justice had anticipated such a situation ; and that the 
 language in his charge clearly indicated his expectation 
 that bills would be laid before the grand jury on the 
 ground of treason ; and that under this expectation the 
 chief justice had dilated on the nature of treason, and 
 given all the information which he thought material ; 
 that there was no reason at all why Aaron Burr should 
 enjoy greater privileges than any other man, or why he 
 should rake up all the old, musty, and absurd doctrines
 
 168 TRIAL OF AARON BURR. 
 
 
 
 of antiquity, and have them enlisted in his service ; and 
 that he stood on the very same ground as any other 
 man. That perhaps all the propositions on Mr. Burr's 
 list would not be wanting at all ; or if there should be 
 any necessity for them, that these questions might be 
 discussed as they successively arose ; that these discus- 
 sions would necessarily consume much of his own time 
 as well as the time of the court, which might probably 
 be devoted to more useful purposes; and after all, the 
 grand jury might refuse any instructions, and in that 
 case how could they be controled by the court ? If the 
 grand jury determined to pay no regard to it, of what 
 avail would be the recommendation of the court? (for it 
 was in fact no more.) And if they were to find, accord- 
 ing to their own opinions, and in the old way, how could 
 the court know of this variation, and how could they 
 rectify it ? 
 
 Mr. Botts replied. He stated that the gentleman had 
 demanded precedents: and yet it was but the other day 
 when that very gentleman had inquired why we so con- 
 stantly resorted to precedents, and why we did not 
 sometimes consult the principles of common sense : that 
 the grand jury were not that lawless mob which the gen- 
 tlemen had seemed to represent them ; and that they 
 would not certainly act against the law when it was pro- 
 perly expounded to them by the court ; that although 
 the chief justice's charge was extremely able, yet it was 
 impossible that it could be so comprehensive as it might 
 now be made from the information which has since 
 occurred ; and that the very necessity of giving any 
 charge at all, showed the propriety of perfecting it ; that 
 it was not Mr. Burr's desire to consume much time, as it 
 was his most earnest wish to end at once the bonds of 
 recognizance and the public prejudice which surrounded 
 him ; and that they were even willing to limit their 
 share of the discussion to a particular time. 
 
 The chief justice said that it was usual and the 
 best course for the court to charge the jury generally 
 at the commencement of the term, and to give their 
 opinion on incidental points as they arose, when the 
 grand jury themselves should apply to them for informa- 
 tion ; that it was manifestly improper to commit the
 
 MOTION TO INSTRUCT GRAND JURY. 169 
 
 opinion of the court on points which might come before 
 them to be decided on the trial in chief; that he had 
 generally confined his charges to a few general points, 
 without launching into many details; one reason was, 
 that some of the detailed points might never arise during 
 the session of the grand jury, and any instruction on them 
 would of course be unnecessary ; another was, that some 
 of these points might be extremely difficult to be decided, 
 and would require an argument of counsel ; because 
 there was no judge or man who would not often find the 
 solitary meditations of his closet very much assisted by 
 the discussions of others ; that he would have had no 
 difficulty, however, in expanding his charge if he had 
 been particularly requested to do it, or if he could have 
 anticipated any necessity for it, and that he would have 
 no difficulty in giving his opinions at this time on cer- 
 tain points on which he could obtain a discussion by the 
 counsel, provided he did not thereby c'ommit his ques- 
 tion on the trial in chief. 
 
 Mr. Burr then requested him to inspect the list of 
 propositions, and the authorities referred to in support 
 of them, which he had prepared ; he might then deter- 
 mine which of those points would admit of the delivery 
 of his opinion, and which would not. 
 
 SATURDAY, June i3th, 1807 
 
 Mr. Burr thought proper to mention that his counsel 
 had understood that a supplemental charge had been 
 written by the court, and put into the hands of the 
 attorney of the United States, and that it was to be 
 shown to his counsel before it was delivered. That for 
 want of time, or some other cause, it had not yet been 
 submitted to them. The court had yesterday requested 
 and obtained a copy of his propositions, that they might 
 judge of their application, and if satisfied on that point 
 that they might give additional instructions to the grand 
 jury. Though the court might not at first have per- 
 ceived the necessity of a supplemental charge, yet it 
 must now appear that each of his propositions must 
 come before the grand jury. If the court were satisfied 
 that they ought, they would have such additional instruc-
 
 1 7 o TRIAL OF AARON BURR. 
 
 tions as were necessary; and if they had doubts, they 
 would require an argument. He was ready to demon- 
 strate the truth of every one of them. That he was 
 ready to argue three weeks ago, and was desirous to save 
 time, and would support them by written or oral argu- 
 ments, as .the court might think proper. 
 
 The Chief Justice stated that he had drawn up a 
 supplemental charge, which he had submitted to the 
 attorney for the United States ; with a request that it 
 should also be put into the hands of Mr. Burr's counsel ; 
 that Mr. Hay had, however, informed him, in the con- 
 versation which he had just had with him, that he had 
 been too much occupied himself to inspect the charge 
 with attention, and deliver it to the opposite counsel ; 
 but another reason was that there was one point in the 
 charge which he did not fully approve. He should not, 
 therefore, deliver his charge at present, but should re- 
 serve it until Monday. In the meantime Mr. Burr's coun- 
 sel have an opportunity of inspecting it, and an argu- 
 ment might be held on the points which had produced 
 an objection from the attorney for the United States. 
 
 Mr. E. Randolph. Is it the wish of the court that the 
 argument should be carried on orally, or in writing? 
 
 Chief Justice. I am willing to see the remarks, on 
 both sides, in writing. 
 
 Mr. Hay objected to this method, from the excessive 
 labor which it would impose upon them either way. 
 
 The Chief Justice declared that it was perfectly indif- 
 ferent to him. 
 
 Mr. Martin assured the court that it was perfectly con- 
 venient to him to argue the point either orally or in writing. 
 
 Mr. Wtckham stated that the attorney for' the United 
 States wished to object to certain propositions which Mr. 
 Burr had submitted to the court ; that he was ready to go 
 into the discussion immediately ; that the attorney for the 
 United States preferred an argument before the court to 
 one in writing; and that this was, in fact, the very course 
 which Mr. Burr's counsel had first recommended. Mr. 
 Wickham hoped that this supplemental charge would be 
 given to the jury before the witnesses were sent up ; that 
 the counsel for the prosecution preferred the contrary, 
 but which was, in fact, the most improper course.
 
 MOTION TO INSTRUCT GRAND JURY. 171 
 
 The Chief Justice observed that the court would also 
 have wished that the charge should have been delivered 
 before the witnesses were sent up ; but that it was almost 
 indifferent to him whether the testimony was submitted 
 to the grand jury before or after the delivery of the 
 charge ; that it was often the custom for the petit jury 
 itself to hear the testimony before 'the law was ex- 
 pounded, and the same practice might extend to the 
 grand jury; for it was extremely easy for them, after 
 they had heard the testimony, to apply the instructions 
 of the court, and distinguish those parts which were 
 admissible from those that were not so. It was not, for 
 instance, absolutely necessary for them to know, previous 
 to the delivery of the charge, that two witnesses were 
 necessary to prove the overt act. When the charge had 
 been delivered, that principle would apply to the testi- 
 mony which they had actually heard ; and that it was 
 desirable that though the charge should precede the 
 testimony, yet it was not so essential as to interrupt the 
 proceedings. 
 
 Mr. Randolph conceived it far more important to give 
 the supplemental charge before than after the exhibition 
 of the testimony ; that with one set of principles on 
 their mind the grand jury would frequently ask ques- 
 tions in one point of view, which they would not under 
 other impressions ; and that the supplemental, like the 
 original, charge ought to precede the evidence. 
 
 Mr. Martin observed that there was this considerable 
 difference between a grand and a petit jury, that when any 
 doubt arose about the propriety of testimony before the 
 petit jury, the court would be present and ready to de- 
 cide ; but the grand jury has not the same aid of the 
 judgment of the court in selecting the testimony. 
 
 The chief justice said, that the necessity of giving a 
 supplemental charge, at this time, was not so manifest, 
 as in his original charge he had expressed his ideas on 
 the nature of treason. That he stated this crime to con- 
 sist in an actual " levying of war," and that, of course, 
 the grand. jury would have to inquire into the existence 
 of overt acts ; that, from this statement, it would readily 
 occur to the jury that no matter what suspicions were 
 entertained, what plans had been formed, what enter-
 
 T72 TRIAL OF AARON BURR 
 
 prizes haa been projected, there could be no treason 
 without an overt act, and without some overt act, no 
 crime of treason had been committed. 
 
 The discussion of this question was at length waived, 
 when the chief justice delivered the following opinion on 
 the motion to issue a subpcena duces tccum directed to 
 the president of the United States : 
 
 77/1? Chief Justice. The object of the motion, now to 
 be decided, is to obtain copies of certain orders, under- 
 stood to have been issued to the land and naval officers 
 of the United States for the apprehension of the ac- 
 cused, and an original letter from General Wilkinson to 
 the president in relation to the accused, with the answer 
 of the president to that letter, which papers are supposed 
 to be material to the defense. As the legal mode of 
 effecting this object, a motion is made for a.subp(zna duces 
 iecum to be directed to the president of the United 
 States. 
 
 In opposition to this motion a preliminary point has 
 been made by the counsel for the prosecution. It has 
 been insisted by them that, until the grand jury shall 
 have found a true bill, the party accused is not entitled 
 to subpoenas nor to the aid of the court to obtain his 
 testimony. 
 
 It will not be said that this opinion is now for the 
 first time advanced in the United States ; but certainly, 
 it is now for the first time advanced in Virginia. So 
 far back as any knowledge of our jurisprudence is pos- 
 sessed, the uniform practice of this country has been 
 to permit any individual who was charged with any 
 crime to prepare for his defense, and to obtain the pro- 
 cess of the court for the purpose of enabling him so to 
 do. This practice is as convenient and as consonant to 
 justice, as it is to humanity. It prevents, in a great 
 measure, those delays which are never desirable, which 
 frequently occasion the loss of testimony, and which are 
 often oppressive. That would be the inevitable conse- 
 quence of withholding from a prisoner the process of the 
 court, until the indictment against him was found by the 
 grand jury. The right of an accused person to the pro- 
 cess of the court, to compel the attendance of witnesses, 
 seems to follow necessarily from the right to examine
 
 OPINION ON MOTION FOR PAPERS. 173 
 
 those witnesses ; and, wherever the right exists, it would 
 be reasonable that it should be accompanied with the 
 means of rendering it effectual. It is not doubted that 
 a person who appears before a court under a recogniz- 
 ance, must expect that a bill will be preferred against 
 him, or that a. question, concerning the continuance of 
 the recognizance, will be brought before the court. In 
 the first event, he has the right, and it is perhaps his 
 duty to prepare for his defense at the trial. In the sec- 
 ond event, it will not be denied that he possesses the 
 right to examine witnesses on the question of continuing 
 his recognizance. In either case, it would seem reason- 
 able that he should be entitled to the process of the 
 court, to procure the attendance of his witnesses. The 
 genius and character of our laws and usages are friendly, 
 not to condemnation at all events, but to a fair and im- 
 partial trial ; and they consequently allow to the accused 
 the right of preparing the means to secure such a trial. 
 The objection that the attorney may refuse to proceed 
 at this time, and that no day is fixed for the trial, if he 
 should proceed presents no real difficulty. It would be 
 a very insufficient excuse to a prisoner who had failed 
 to prepare for his trial, to say that he was not certain 
 the attorney would proceed against him. Had the in- 
 dictment been found at the first term, it would have 
 been in some measure uncertain, whether there would 
 have been a trial at this, and still more uncertain on 
 what day that trial would take place; yet subpoenas 
 would have issued returnable to the first day of the term ; 
 and if after its commencement, other subpoenas had been 
 required, they would have issued returnable as the court 
 might direct. In fact, all process to which the law has 
 affixed no certain return day, is made returnable at the 
 discretion of the court. 
 
 General priniciples, then, and general practice are in 
 favor of the right of every accused person, so soon as his 
 case is in court, to prepare for his defense, and to receive 
 the aid of the process of the court to compel the attend- 
 ance of his witnesses. 
 
 The constitution and laws of the United States will 
 now be considered, for the purpose of ascertaining how 
 they bear upon the question. The eighth amendment
 
 174 TRIAL OF AARON BURR. 
 
 to the constitution gives to the accused, " in all criminal 
 prosecutions, a right to a speedy and public trial, and to 
 compulsory process for obtaining witnesses in his favor." 
 The right, given by this article, must be deemed sacred 
 by the courts, and the article should be so construed as 
 to be something more than a dead letter. What can 
 more effectually elude the right to a speedy trial than the 
 declaration, that the accused shall be disabled from pre- 
 paring for it until an indictment shall be found against 
 him ? It is certainly much more in the true spirit of the 
 provision which secures to the accused a speedy trial, 
 that he should have the benefit of the provision which 
 entitles him to compulsory process as soon as he is 
 brought into court. 
 
 This observation derives additional force from a con- 
 sideration of the manner in which this subject has been 
 contemplated by congress. It is obviously the intention 
 of the national legislature, that, in all capital cases, the 
 accused shall be entitled to process before indictment 
 found. The words of law are, " and every such person 
 or persons accused or indicted of the crimes aforesaid 
 (that is of treason or any other capital offense), shall be 
 allowed and admitted in his said detense, to make any 
 proof that he or they can produce by lawful witness or 
 witnesses, and shall have the like process of the court 
 where he or they shall be tried, to compel his or their 
 witnesses to appear at his or their trial, as is usually 
 granted to compel witnesses to appear on the prosecution 
 against them." 
 
 This provision is made for persons accused or indicted. 
 From the imperfection of human language it frequently 
 happens that sentences which ought to be the most ex- 
 plicit are of doubtful construction ; and in this case the 
 words " accused or indicted," may be construed to be 
 synonymous to describe a person in the same situation, 
 or to apply to different stages of the prosecution. The 
 word or may be taken in a conjunctive or a disjunctive 
 sense. A reason for understanding them in the latter 
 sense is furnished by the section itself. It commences 
 with declaring that any person who shall be accused and 
 indicted for treason, shall have a copy of the indictment, 
 and at least three days before his trial. This right is ob-
 
 OPINION ON MOTION FOR PAPERS. 175 
 
 viously to be enjoyed after an indictment, and therefore 
 the words are " accused and indicted." So, with respect 
 to the subsequent clause which authorizes a party to 
 make his defense, and directs the court on his application 
 to assign him counsel. The words relate to any person 
 accused and indicted. But when the section proceeds 
 to authorize the compulsory process for witnesses, the 
 phraseology is changed. The words are " and every such 
 person of persons accused or indicted," &c., thereby adapt- 
 ing the expression to the situation of an accused person 
 both before and after indictment. It is to be remarked, 
 too, that the person so accused or indicted, is to have 
 " the like process to compel his or their witnesses to ap- 
 pear at his or their trial, as is usually granted to compel 
 witnesses to appear on the prosecution against him." 
 The fair construction of this clause would seem to be, 
 that, with respect to the means of compelling the at- 
 tendance of witnesses to be furnished by the court, the 
 prosecution and defense are placed by the law on equal 
 ground. The right of the prosecutor to take out sub- 
 pcenas, or to avail himself of the aid of the court in any 
 stage of the proceedings previous to the indictment, is 
 not controverted. This act of congress, it is true, applies 
 only to capital cases ; but persons charged with offenses 
 not capital, have a constitutional and a legal right to exam- 
 ine their testimony; and this act ought to be considered 
 as declaratory of the common law in cases where this con- 
 stitutional right exists. 
 
 Upon immemorial usage, then, and upon what is 
 deemed a sound construction of the constitution and law 
 f the land, the court is of opinion 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. Much delay and much inconvenience may be 
 avoided by this construction ; no mischief, which is per- 
 ceived, can be produced by it. The process would only 
 issue when, according to the ordinary course of proceed- 
 ing, the indictment would be tried at the term to which 
 the subpcena is made returnable ; so that it becomes in- 
 cumbent on the accused to be ready for his trial at that 
 term.
 
 176 TRIAL OF AARON BURR. 
 
 This point being disposed of, it remains to inquire, 
 whether a subpoena duces tecitm can be directed to the 
 president of the United States, and whether it ought to 
 be directed in this case? 
 
 This question orginally consisted of two parts. It 
 was at first doubted whether a subpoena could issue, in 
 any case, to the chief magistrate of the nation ; and if it 
 could, whether that subpoena could do more that direct 
 his personal attendance ; whether it could direct him 
 to bring with him a paper which was to constitute the 
 gist of his testimony. While the argument was opening, 
 the attorney for the United States avowed his opinion, 
 that a general subpoena might issue to the president ; but 
 not a subpoena duccs tecum. This terminated the argu- 
 ment on that part of the question. The court, however, 
 has thought it necessary to state briefly the foundation 
 of its opinion that such a subpoena may issue. 
 
 In the provisions of the constitution and of the statute, 
 which give to the accused a right to the compulsory pro- 
 cess of the court, there is no exception whatever. The 
 obligation, therefore, of those provisions is general ; and 
 it would seem that no person could claim an exemption 
 from them, but one who would not be a witness. At any 
 rate, if an exception to the general principle exist, it 
 must be looked for in the law of evidence. The excep- 
 tions furnished by the law of evidence (with one only 
 reservation) so far as they are personal, are of those only 
 whose testimony could not be received.' The single 
 reservation, alluded to, is the case of the king. Although 
 he may, perhaps, give testimony, it is said to be incom- 
 patible with his dignity to appear under the process of 
 the court. Of the many points of difference which exist 
 between the first magistrate in England, and the first 
 magistrate of the United States, in respect to the per- 
 sonal dignity conferred on them by the constitutions of 
 their respective nations, the court will only select and 
 mention two. It is a principle of the English constitu- 
 tion that the king can do no wrong, that no blame can 
 be imputed to him, that he can not be named in de- 
 bate. 
 
 By the constitution of the United States, the president, 
 as well as every other officer of the government, may be
 
 OPINION ON MOTION FOR PAPERS. 177 
 
 impeached, and may be removed from office on high 
 crimes and misdemeanors. 
 
 By the constitution of Great Britain, the crown is hered- 
 itary, and the monarch can never be a subject. 
 
 By that of the United States, the president is elected 
 from the mass of the people, and, on the expiration of 
 the time for which he is elected, returns to the mass of 
 the people again. 
 
 How essentially this difference of circumstances must 
 vary the policy of the laws of the two countries, in refer- 
 ence to the personal dignity of the executive chief, will 
 be perceived by every person. In this respect, the first 
 magistrate of the Union may more properly be likened 
 to the first magistrate of a state ; at any rate, under the 
 former confederation ; and it is not known ever to have 
 been doubted but the chief magistrate of a state might 
 be served with a subpoena ad testificandum. 
 
 If, in any court of the United States, it has ever been 
 decided, that a subpoena can not issue to the president, 
 that decision is unknown to this court. 
 
 If, upon any principle, the president could be construed 
 to stand exempt from the general provisions of the con- 
 stitution, it would be, because his duties, as chief magis- 
 trate, demand his whole time for national objects. But 
 it is apparent that this demand is not unremiting, 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 
 subpoena, and would rather constitute a reason for not 
 obeying the process of the court, than a reason against 
 its being issued. In point of fact it can not be doubted, 
 that the people of England have the same interest in the 
 service of the executive government, that is of the cabinet 
 counsel, that the American people have in the servict- of 
 the executive of the United States, and that their duties 
 areas arduous and as unremitting. Yet it has never been 
 alleged, that a subpoena might not be directed to them. 
 It can not be denied, that, to issue a subpoena to a per- 
 son filling the exalted station of the chief magistrate, is 
 a duty which would be dispensed with much more che-r- 
 fully than it would be performed ; but, if it be a duty, the 
 court can have no choice in the case. 
 
 If, then, as is admitted by the counsel for the United
 
 178 TRIAL OF AARON BURR. 
 
 States, a subpoena may issue to the president, the accused 
 is entitled to it of course ; and, whatever difference may 
 exist with respect to the power to compel the same obe- 
 dience to the process, as if it had been directed to a pri- 
 vate citizen, there exists no difference with respect to the 
 right to obtain it. The guard, furnished to this high 
 officer, to protect him from being harassed by vexatious 
 and unnecessary subpoena, is to be looked for in the con- 
 duct of a court after those subpoenas 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 presi- 
 dent and a private citizen, what foundation is there for 
 the opinion, that this difference is created by the circum- 
 stances that his testimony depends on a paper in /his 
 possession, not on facts which have come to his knowl- 
 edge otherwise than by writing? The court can perceive 
 no foundation for such an opinion. The propriety of in- 
 troducing any paper into the case as testimony, must de- 
 pend on the character of the paper, not on the character 
 of the person who holds it. A subpoena due ~es tecum, then, 
 may issue to any person to whom an ordinary subpoena 
 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. 
 
 When this subject was suddenly introduced, the court 
 felt some doubt concerning the propriety of directing a 
 subpoena to the chief magistrate, and some doubt, also, 
 concerning the propriety of directing any paper in his 
 possession, not public in its nature, to be exhibited in 
 court. The impression, that the questions which might 
 arise in consequence of such process, were more proper 
 for discussion on the return of the process than on its 
 issuing, was then strong on the mind of the judges ; but 
 the circumspection with which they would take any step, 
 which would in any manner relate to that high person- 
 age, preventing their yielding readily to those impres- 
 sions, and induced the request, that those points, if not 
 admitted, might be argued. The result of that argu- 
 ment is a confirmation of the impression originally enter- 
 tained. The court can perceive no legal objection to
 
 OPINION ON MOTION FOR PAPERS. 179 
 
 issuing a subpoena duces tecnm to any person, whatever^ 
 provided the case be such as to justify the process. 
 
 This is said to be a motion to the discretion of the 
 court. This is true. But a motion to its discretion is a 
 motion, not to its inclination, but to its judgment ; and 
 its judgment is to be guided by sound legal principles. 
 A subp&na duces tecum varies from an ordinary subpoena 
 only in this: that a witness is summoned for the purpose 
 of bringing with him a paper in his custody. In some 
 of our sister states, whose system of jurisprudence is 
 erected on the same foundation with our own, this pro- 
 cess, we learn, issues of course. In this case it issues, not 
 absolutely of course, but with leave of the court. No 
 case, however, exists, as is believed, in which the motion 
 has been founded on an affidavit, in which it has been 
 denied, or in which it has been opposed. It has been 
 truly observed, that the opposite party can regularly 
 take no more interest in the awarding a subpoena duces 
 tecum than in the awarding of an ordinary subpoena. In 
 either case, he may object to any delay, the grant of 
 which may be implied in granting the subpoena ; but he 
 can no more object regularly to the legal means of ob- 
 taining testimony, which exists in the mind, than in the 
 papers of the person who may be summoned. If no in- 
 convenience can be sustained by the opposite party, he 
 can only oppose the motion in the character of an ami- 
 cus curicz ; to prevent the court from making an improper 
 order, or from burdening some officer, by compelling an 
 unnecessary attendance. This court would certainly be 
 very unwilling to say that, upon fair construction, the 
 constitutional and legal right to obtain its process, to 
 compel the attendance of witnesses, does not extend to 
 their bringing with them such papers as may be material 
 in the defense. The literal distinction which exists be- 
 tween the cases is too much attenuated to be counte- 
 nanced in the tribunals of a just and humane nation. If, 
 then, the subpoena be issued, without inquiry into the 
 manner of its application, it would seem to trench on the 
 privileges which the constitution extends to the accused ; 
 it would seem to reduce his means of defense within nar- 
 rower limits than is designed by the fundamental law of 
 our country, if an overstrained rigor should be used with
 
 i8o TRIAL OF AARON BURR. 
 
 respect to his right to apply for papers deemed by him- 
 self to be material. In the one case, the accused is made 
 the absolute judge of the testimony to be summoned ; 
 if, in the other, he is not a judge, absolutely for himself, 
 bis judgment ought to be controlled only so far as it is 
 apparent that he means to exercise his privileges, not 
 really in his own defense, but for purposes which the 
 court ought to discountenance. The court would not 
 lend its aid to motions obviously designed to manifest 
 disrespect to the governmant ; but the court has no right 
 to refuse its aid to motions for papers to which the ac- 
 cused may be entitled, and which may be material in his 
 defense. 
 
 These observations are made to show the nature of the 
 discretion which may be exercised. If it be apparent 
 that the papers are irrelative to the case ; or that, for 
 state reasons, they can not be introduced into the defense, 
 the subpoena duces tecum would be useless. But, if this be 
 not apparent ; if they may be important in the defense ; if 
 they may be safely read at the trial ; would it not be a 
 blot on the page which records the judicial proceedings 
 of this country, if, in a case of such serious import as this, 
 the accused should be denied the use of them? 
 
 The counsel for the United States take a very different 
 view of the subject ; and insist that a motion for process 
 to obtain testimony should be supported by the same 
 full and explicit proof of the nature and application ofthat 
 testimony, which would be required jon a motion, which 
 would delay public justice, which would arrest the ordi- 
 nary course of proceedings, or would, in any, in any other 
 manner affect the rights of the opposite party. In favor 
 of this position has been urged the opinion of one, whose 
 loss as a friend, and as a judge, I sincerely deplore ; whose 
 worth I feel, and whose authority I shall at all times 
 greatly respect. If his opinion were really opposed to 
 mine, I should certainly revise, deliberately revise, the 
 judgment I had formed : but I perceive no such opposi- 
 tion. 
 
 In the trials of Smith and Ogden, the court, in which 
 Judge Patterson presided, required a special affidavit in 
 support of a motion, made by the counsel for the ac- 
 cused, for a continuance, and for an attachment against
 
 OPINION ON MOTION FOR PAPERS. 181 
 
 witnesses who had been subpoenaed and had failed to at- 
 tend. 
 
 Had this requisition of a special affidavit been made as 
 well a foundation for an attachment as for a continuance, 
 the cases would not have been parallel ; because the at- 
 tachment was considered by the counsel for the prosecu- 
 tion merely as a mean of punishing the contempt, and 
 a court might certainly require stronger testimony to 
 induce them to punish a contempt, than would be re- 
 quired to lend its aid to a party in order to procure evi- 
 dence in a cause. But the proof furnished by the case 
 is most conclusive, that the special statements of the 
 affidavit were required solely on account of the contin- 
 uance. 
 
 Although the counsel for the United States considered 
 the motion for an attachment, merely as a mode of pun- 
 ishing for contempt, the counsel for Smith and Ogden 
 considered it as compulsory process to bring in a witness, 
 and moved a continuance until they could have the 
 benefit of this process. The continuance was to arrest 
 the ordinary course of justice ; and, therefore, the court 
 required a special affidavit,,showing the materiality of the 
 testimony before this continuance could be granted. 
 Pr in la facie evidence could not apply to the case; and 
 there was an additional reason for a special affidavit. 
 The object of this special statement was expressly said 
 to be for a continuance. Golden proceeded : " The 
 present application is to put off the cause on account of 
 the absence of witnesses, whose testimony the defendant 
 alleges is material for his defense, and who have dis- 
 obeyed the ordinary process of the court. In compliance 
 with the intimation from the bench yesterday, the defen- 
 dant has disclosed by the affidavit which I have just 
 read, the points to which he expects the witnesses who 
 have been summoned will testify. 
 
 " If the court can not, or will not, issue compulsoiy 
 process to bring in the witnesses who are the objects of 
 this application, then the cause will not be postponed. 
 
 " Or, if it appear to the court, that the matter dis- 
 closed by the affidavit might not be given in evidence, if 
 the witnesses were now here, then we can not expect 
 hat our motion will be successful. For it would be ab-
 
 1 82 TRIAL OF AARON BURR. 
 
 surd to suppose that the court will postpone the trial on 
 account of the absence of witnesses whom they can not 
 compel to appear, and of whose voluntary attendance there 
 is too much reason to despair ; or, on account of the 
 absence of witnesses, who, if they were before the court, 
 could not be heard on the trial." (See page 12 of the 
 Trials of Smith and Ogden.) 
 
 This argument states, unequivocally, the purpose for 
 which a special affidavit was required. 
 
 The counsel for the United States considered the sub- 
 ject in the same light. After exhibiting an affidavit for 
 the purpose of showing that the witnesses could not 
 probably possess any material information, Mr. Standford 
 said, " It was decided by the court yesterday, that it was 
 incumbent on the defendent, in order to entitle himself 
 to a postponement of the trial, on account of the 
 absence of these witnesses, to show in what respect they 
 are material for his defense. It was the opinion of the 
 court that the general affidavit in common form, would 
 not be sufficient for this purpose ; but that the particu- 
 lar facts expected from the witnesses must be disclosed, 
 in order that the court might, upon those facts, judge 
 of the propriety of granting the postponement." (p. 27.) 
 
 The court frequently treated the subject so as to show 
 the opinion, that the special affidavit was required only 
 on account of the continuance : but, what is conclusive 
 on this point is, that after deciding the testimony of the 
 witnesses to be such as could not be offered to the jury, 
 Judge Patterson was of opinion, that a rule, to show 
 cause why an attachment should not issue, ought to be 
 granted. He could not have required the materiality of 
 the witness to be shown on a motion, the success of 
 which did not, in his opinion, in any degree depend on 
 that materiality ; and which he granted after deciding 
 the testimony to be such as the jury ought not to hear. It 
 is, then, most apparent, that the opinion of Judge Patter- 
 son has been misunderstood, and that no inference can 
 possibly be drawn from it, opposed to the principle which 
 has been laid down by the court. That principle will 
 therefore be applied to the present motion. 
 
 The first paper required is the letter of General Wilk- 
 inson, which was referred to in the message of the presi-
 
 OPINION ON MOTION FOR PAPERS. 183 
 
 dent to congress. The application of that letter to the case 
 is shown by the terms in which the communication was 
 made. It is a statement of the conduct of the accused, 
 made by the person who is declared to be the essential 
 witness against him. The order for producing this letter 
 is opposed, 
 
 First, Because it is not material to the defense. It is 
 a principle, universally acknowledged, that a party has a 
 right to oppose to the testimony of any witness against 
 him, the declarations which that witness has made, at 
 other times, on the same subject. If he possesses this 
 right, he must bring forward proof of those declarations. 
 This proof must be obtained before he knows positively 
 what the witness will say; for, if he waits until the wit- 
 ness has been heard at the trial, it is too late to meet 
 him with his former declarations. Those former declara- 
 tions, therefore, constitute a mass of testimony which a 
 party has a right to obtain by way of precaution, and the 
 positive necessity of which can only be decided at the trial. 
 
 It is with some surprise an argument was heard from 
 the bar, insinuating that the award of a subpoena, on this 
 ground, gave the countenance of the court to suspicions 
 affecting the veracity of a witness, who is to appear on 
 the part of the United States. This observation could 
 not have been considered. In contests of this descrip- 
 tion, the court takes no part ; the court has no right to 
 take a part. Every person may give in evidence, testi- 
 mony such as is stated in this case. What would be the 
 feelings of the prosecutor, if, in this case, the accused 
 should produce a witness completely exculpating himself, 
 and the attorney for the United States should be arrested in 
 his attempt to prove what the same witness had said upon 
 a former occasion, by a declaration from the bench, that 
 such an attempt could not be permitted, because it would 
 imply a suspicion in the court, that the witness had not 
 spoken the truth? Respecting so unjustifiable an inter- 
 position but one opinion would be formed. 
 
 The second objection is, that the letter contains matter 
 which ought not to be disclosed. 
 
 That there may be matter, the production of which 
 the court would not require, is certain ; but that, in a 
 capital case, the accused ought, in som& form, to have
 
 1 84 TRIAL OF AARON BURR. 
 
 the benefit of it, if it were really essential to his defense, 
 is a position which the court would very reluctantly deny. 
 It ought not to be believed, that the department, which 
 superintends prosecutions in criminal cases, would be in- 
 clined to withhold it. What ought to be done under 
 such circumstances, presents a delicate question, the dis- 
 cussion of which it is hoped, will never be rendered 
 necessary in this country. At present it need only be 
 said, that the question does not occur at this time. 
 There is certainly nothing before the court which shows 
 that the letter in question contains any matter the dis- 
 closure of which would endanger the public safety. If 
 it does contain such matter, the fact may appear before 
 the disclosure is made. If it does contain any matter, 
 which it would be imprudent to disclose, which it is not 
 the wish of the executive to disclose ; such matter, if it 
 be not immediately and essentially applicable to the 
 point, will, of course, be suppressed. It is not v easy to 
 conceive, that so much of the letter as relates to the con- 
 duct of the accused can be a subject of delicacy with the 
 president. Everything of this kind, however, will have 
 its due consideration on the return of the subpoena. 
 
 Thirdly, It has been alleged that a copy may be re- 
 ceived instead of the original, and the act of congress has 
 been cited in support of this proposition. 
 
 This argument presupposes, that the letter required is 
 a document filed in the department of state, the reverse 
 of which may be and most probably. is the fact. Letters, 
 addressed to the president, are most usually retained 
 by himself. They do not belong to any of the depart- 
 ments. But, were the fact otherwise, a copy might not 
 answer the purpose. The copy would not be-superior to 
 the original, and the original itself would not be admitted 
 if denied, without proof that it was in the handwriting 
 of the witness. Suppose the case put at the bar of an 
 indictment on this letter for a libel, and on its produc- 
 tion it should appear not to be in the handwriting of 
 the person indicted. Would its being deposited in the 
 department of state make it his writing, or subject him 
 to the consequence of having written it? Certainly not 
 For the purpose, then, of showing the letter to have been 
 written by a particular person, the original must be pro-
 
 OPINION ON MOTION FOR PAPERS, 185 
 
 duced, and a copy could not be admitted. On the con- 
 fidential nature of this letter much has been said at the 
 bar, and authorities have been produced, which appear 
 to be be conclusive. Had its contents been orally com- 
 municated, the person to whom the communications 
 were made, could not have excused himself from detail- 
 ing them, so far as they might be deemed essential 
 in the defense. Their being in writing gives no ad- 
 ditional sanctity; the only difference produced by the 
 circumstance is, that the contents of the paper must be 
 proved by the paper itself, not by the recollection of the 
 witness. 
 
 Much has been said about the disrespect to the chief 
 magistrate, which is implied by this motion, and by such 
 a decision of it as the law is believed to require. 
 
 These observations will be very truly answered by the 
 declaration, that this court feels many, perhaps peculiar 
 motives, for manifesting as guarded a respect for the 
 chief magistrate of the Union as is compatible with its 
 official duties. To go beyond these would be to exhibit 
 a conduct, which would deserve some other appellation 
 than the term respect. 
 
 It is not for the court to anticipate the event of the 
 present prosecution. Should it terminate as is expected 
 on the part of the United States, all those who are con- 
 cerned in it should certainly regret that a paper which 
 the accused believed to be essential to his defense, which 
 may, for aught that now appears, be essential, had been 
 withheld from him. I will not say that this circumstance 
 would in any degree tarnish the reputation of the gov- 
 ernment ; but I will say that it would justly tarnish the 
 reputation of the court, which had given its sanction to 
 its being withheld. Might I be permitted to utter one 
 sentiment, with respect to myself, it would be to deplore 
 most earnestly, the occasion which should compel me to 
 to look back on any part of my official conduct with so 
 much self-reproach as I should feel, could I declare on 
 the information now possessed, that the accused is not 
 entitled to the letter in question, if it should be really 
 important to him. 
 
 The propriety of requiring the answer to this letter is 
 more questionable. It is alleged, that it most probably
 
 1 86 TRIAL OF AARON BURR. 
 
 communicates orders showing the situation of this coun- 
 try with Spain, which will be important on the misde- 
 meanor. If it contain matter not essential to the de- 
 fense, and the disclosure be unpleasant to the executive, 
 it certainly ought not to be disclosed. This is a point 
 which will appear on the return. The demand of the 
 orders, which have been issued, and which have been, 
 as is alleged, published by The Natchez Gazette, is by no 
 means unusual. Such documents have often been pro- 
 duced in the courts of the United States, and the courts 
 of England. If they contain matter interesting to the 
 nation, the concealment of which is required by the public 
 safety, that matter will appear upon the return. If they 
 do not, and are material, they may be exhibited. 
 
 It is said, they can not be material, because they can 
 not justify any unlawful resistance, which may have been 
 employed or meditated by the accused. 
 
 Were this admitted, and were it also admitted, that 
 such resistance would amount to treason, the orders 
 might still be material: because, they might tend to 
 weaken the endeavor to connect such overt act with any 
 overt act of which this court may take cognizance. The 
 court, however, is rather inclined to the opinion, that the 
 subpoena, in such case, ought to be directed to the head 
 of the department, in whose custody the orders are. 
 The court must suppose, that the letter of the secretary 
 of the navy, which has been stated by the attorney for 
 the United States, to refer the counsel for the prisoner 
 to his legal remedy for the copies he desired, alluded to 
 such a motion as is now made. 
 
 The affidavit on which this motion is grounded has 
 not been noticed. It is believed, that such a subpoena 
 as is asked, ought to issue, if there exist any reason for 
 supposing that the testimony may be material, and ought 
 to be admitted. It is only because the subpcena is to 
 those who administer the 'government of this country, 
 that such an affidavit was required as would furnish prob- 
 able cause to believe, that the testimony was desired for 
 the real purposes of defense, and not for such as this 
 court will forever discountenance. 
 
 When the chief justice had concluded his opinion, Mr 
 Mac Rae addressed the court.
 
 INDIFFERENCE OF COUNSEL. 187 
 
 /I hope, sir, that I have misunderstood an expression 
 which has just escaped from your honor; but the opin- 
 ions of those gentlemen, who are near me, completely 
 confirm my own conceptions. Your honor has declared, 
 if I mistake not, that " if the present prosecution ter- 
 minate as is wished on the part of the United States." 
 I hope, sir, that nothing has appeared in my conduct, 
 nothing in the conduct of the gentlemen who are asso- 
 ciated with me on the present occasion, and nothing in 
 the conduct of the government, to produce such a con- 
 viction in the breast of the court. Permit me, sir, to 
 assure this court, if we feel any sentiment at all, that it 
 is one of a very different description. The impression 
 which has been thus conveyed by the court, that we not 
 only wished to have Aaron Burr accused, but that we 
 wished to convict him, is completely abhorrent to our 
 feelings. We trust, that it has rather accidentally fallen 
 from the pen of your honor, than that it is your deliber- 
 ate opinion. We wish for nothing, sir, but a fair and 
 competent investigation of this case. It is far from our 
 wishes that Aaron Burr should be convicted but upon 
 the most satisfactory evidence. And let me assure this 
 court, that nothing would more severely wound my feel- 
 ings, than if you or any other man should suppose it 
 possible, that I myself, or the gentlemen with whom I 
 am associated, or the government which we have the 
 honor to represent, should at all events, desire the con- 
 viction of the prisoner. 
 
 The Chief Justice replied, that it was not his intention 
 to insinuate, that the attorneys for the prosecution, or 
 that the administration, had ever wished the conviction 
 of Colonel Burr, whether he was guilty or innocent ; that 
 his assertion was this : " Gentlemen had so often, and so 
 uniformly asserted, that Colonel Burr was guilty, and 
 they had so often repeated it before the testimony was 
 perceived, on which that guilt could alone be substan- 
 tiated, that it appeared to him probable that they were 
 not indifferent on the subject." 
 
 Mr. Mac Rea begged leave to point out to the court a 
 considerable difference between the opinions and wishes 
 of the counsel for the prosecution ; that from the testi- 
 mony which they had examined, they thought it ex-
 
 i88 TRIAL OP AARON BURR. 
 
 tremely probable that Aaron Burr was really guilty ; but 
 that this was very different from wishing to find him 
 guilty, or to convict him at all events. 
 
 Mr. Hay observed, that his own conscience was satis- 
 fied with the course which he had pursued in this busi- 
 ness ; that he should attempt to secure the same sentiment 
 by his future deportment ; and, provided he enjoyed that 
 satisfaction', he was completely indifferent to the opinion 
 of others ; and he should certainly pursue his own judg- 
 ment. He asked whether he might not send up the 
 witnesses to the grand jury? 
 
 Mr. Burr then pressed upon the court the necessity of 
 giving the supplemental charge ; that it would be of con- 
 siderable benefit in instructing the jury to separate what 
 was proper in the evidence from what was improper; 
 that if the charge was not delivered for several days, the 
 jury might in the meantime be receiving very false im- 
 pressions ; and that their minds might be so completely 
 involved in these impressions that it would be impossible 
 for them to separate them from their decisions, even after 
 the delivery of the charge. He conceived that the court 
 ought either to prevent the witnesses from going to the 
 grand jury, or to deliver its supplemental charge. 
 
 The Chief Justice replied, that on Monday morning he 
 would deliver the charge, if all the necessary preliminary 
 points could be settled. 
 
 Mr. Hay then requested the clerk to swear four of the 
 witnesses : Thomas Truxtun, William Eaton, Benjamin 
 Stoddert, and Stephen Decatur, who were accordingly 
 sworn. 
 
 Mr. Burr hoped, that the court would immediately 
 take up the supplemental charge to the jury. What 
 was the objection which the attorney for the United 
 Satets has submitted to your honor, and on which you 
 seemed to entertain some doubts ? 
 
 Chief Justice. It is, whether the statute of Edward 
 VI. is now in force in this country. 
 
 Mr. Randolph. We are ready on that point, sir. 
 
 The clerk then proceeded to call four other witnesses to 
 the book : but when Erick Bollman appeared, Mr. Hay 
 addressed the court to the following effect: 
 
 Before Mr. Bollman is sworn, I must inform the court
 
 DR. BOLLMAWS PARDON. 189 
 
 of a particular, and not an immaterial- circumstance. 
 He, sir, has made a full communication to the govern- 
 ment of the plans, the designs, and views of Aaron Burr. 
 As these communications might criminate Doctor Bollman 
 before the grand jury, the president of the United States 
 has communicated to me this pardon (holding it in his 
 hands) which I have already offered to Doctor Bollman. 
 He received it in a very hesitating manner ; and I think 
 informed me that he knew not whether he should or 
 should not accept it. He took it from me, however, as 
 he informed me to take the advice of counsel. He re- 
 turned it in the same hesitating manner; he would 
 neither positively accept nor refuse it. My own opinion 
 is, that Doctor Bollman, under these circumstances, can 
 not possibly criminate himself. This pardon will com- 
 pletely exonerate him from all the penalties of the law. 
 I believe his evidence to be extremely material. In the 
 presence of this court, I offer this pardon to him, and if 
 he refuses, I shall deposit it with the clerk for his use. 
 Will you (addressing himself to Doctor Bollman) accept 
 this pardon ? 
 
 Doctor Bollman. No. I will not, sir. 
 
 Mr. Hay then observed, that Doctor Bollman must 
 be carried up to the grand jury with an intimation that 
 he had been pardoned. 
 
 Mr. Martin. It has always been Doctor Bollman's 
 intention to refuse this pardon : but he has not positively 
 refused it before, because he wished to have this oppor- 
 tunity of publicly rejecting it. 
 .Several other witnesses were sworn. 
 
 Mr. Martin did not suppose, that the pardon was real 
 or effectual ; if he made any confessions before the grand 
 jury, they might find an indictment against him, which 
 would be valid notwithstanding the pardon ; that the 
 pardon could not be effectual before it was pleaded to an 
 indictment in open court. 
 
 Mr. Hay inquired, whether Doctor Bollman might not 
 go to the grand jury? 
 
 The Chief Justice suggested, that it would be better to 
 settle the question about the validity of the pardon be- 
 fore he was sent to the grand jury. 
 
 Mr. Hay. I am anxious to introduce the evidence be-
 
 190 TRIAL OF AARON BURR. 
 
 fore the grand jury in a chronological order, and the 
 suspension of Doctor Bollman's testimony will make a 
 chasm in my arrangement. He added that, however, 
 it was not very important whether he was sent now or 
 some time hence to the grand jury. 
 
 Mr. Martin. Doctor Bollman is not pardoned ; and 
 no man is bound to criminate himself. 
 
 The Chief Justice required his authorities. 
 
 Mr. Martin. I am prepared to show, that a party even 
 possessed of a pardon is still indictable by the grand jury, 
 unless he has pleaded it in court. 
 
 The other witnesses were sent to the grand jury, and 
 Doctor Bollma'n was suspended. 
 
 Four other witnesses were then sworn. 
 
 Mr. Hay. I again propose to send Doctor Bollman to 
 the grand jury. 
 
 At this time the marshal entered, and Mr. Hay informed 
 the court, that the grand jury had sent for the article of 
 the constitution and the laws of congress relating to trea- 
 son, and the law relating to the misdemeanor. 
 
 Jacob Dunbaugh was sworn and sent to the grand 
 jury. 
 
 Some desultory conversation here ensued between the 
 bar and the court respecting Doctor Bollman, when Mr. 
 Hay addressed the opposite counsel : Are you then will- 
 ing to hear Doctor Bollman indicted? Take care in what 
 an awful condition you are placing this gentleman. 
 
 Mr. Martin. Doctor Bollman, sir, has lived too long to 
 be alarmed by such menaces. He is a man of too much 
 honor to trust his reputation to the course which you 
 prescribe for him. 
 
 The *Chief Justice. There can be no question, but 
 Doctor Bollman can go up to the jury : but the question 
 is, whether he is pardoned or not ? If the executive 
 should refuse to pardon him, he is certainly not pardoned. 
 
 Mr. Martin. But there can be no doubt, if he chooses 
 to decline his pardon, that he stands in the same situation 
 with every other witness, who can not be forced to crim- 
 inate himself. 
 
 Some desultory conversation here ensued, when Mr. 
 Hay observed, that he should extremely regret the loss 
 of Doctor Bollman's testimony. He believed it to be
 
 DR. BOLLMAN' S PARDON. 191 
 
 material. He trusted that he should obtain it, however 
 reluctantly given. The court would perceive that Doc- 
 tor Bollman now possessed so much zeal as even to en- 
 counter the risk of an indictment for treason. Whether 
 he should appear before the grand jury, under the cir- 
 cumstance of a pardon being annexed to his name, might 
 hereafter become the object of a distinct inquiry. In 
 the meantime, he might go up without any such notifi- 
 cation. 
 
 The counsel of Mr. Burr acquiesced. 
 
 Chief Justice. Whether he be really pardoned or not, 
 I can not, at present, declare. I must take time to de- 
 liberate. 
 
 Mr. Hay. Categorically then I ask you, Mr. Bollman, 
 do you accept your pardon ? 
 
 Mr. Bollman. I have already answered that question 
 several times. I say no. I repeat, that I would have re- 
 fused it before, but that I wished this opportunity of 
 publicly declaring it. 
 
 Mr. Hay. If the grand jury have any doubts about 
 the questions that they put to Doctor Bollman, they can 
 apply to the court for instructions. I assert, sir, that 
 Mr. Bollman is a pardoned man. I wish the opposite 
 counsel to prove that he is not. I therefore move, sir, 
 that he be sent up to the grand jury, certified by you 
 that he is pardoned. I make this motion, that gentle- 
 men, who wish to discuss the question, may have an op- 
 portunity of adducing their arguments. 
 
 Mr. Williams, counsel for Mr. Bollman. There are 
 three questions to be decided. 1st, Whether a witness be 
 bound to answer any questions, which tend to criminate 
 himself, or afford a clue to evidence for that purpose? 
 2d, The operation of a pardon, whether it change the 
 question ? but in this case, it having been refused, the 
 court can not notice it. 3d, Who is to be the judge, the 
 witness or the court, as to the propriety of answering the 
 question ? 
 
 On the first question Mr. Williams laid down the fol- 
 lowing propositions : 1st, The rule of law is, that no man 
 shall be bound to answer any question which shall accuse 
 himself. i Mac Nally's Ev. 256 ; 2 Haw. c. 46. 2d, He 
 shall not be bound to answer any questions which shall
 
 192 TRIAL OF AARON BURR. 
 
 accuse himself of a misdemeanor. I Mac Nal. 256. 3d, 
 He shall not be called upon to caluminate himself. i 
 Mac Nal. 256; 2 State Trials, 822.; 1017 to 1038, Tabs- 
 borough's case. 4th, He is not to defame himself. I Mac 
 Nal. 256, 258 ; 2 State Trials, 439. 5th, Not to answer en- 
 snaring questions. Mac Nal. 256. 6th, To ask a man if 
 he is a Roman catholic is not permitted. Mac Nal. 257 ; 
 9 State Trials, 414 ; 2 Dougl. 593. 7th, Not bound to an- 
 swer any question which tends to criminate himself. 
 Mac Nal. 257 ; 4 State Trials. 605, 606. 8th, The case of. 
 Gooseley in this court, upon the trial of Reynolds; he 
 was called as a witness, but not compelled to criminate 
 himself, had been acquitted the day before by the grand 
 jury. So i Black. Rep. 27. 
 
 As to the second question, the rule of law is the same, 
 even if the man be pardoned. 1st, A witness, although 
 pardoned, shall not be bound to calumniate himself, for 
 the pardon having placed him in statu quo, no question 
 shall be asked him, which tends to make him contempti- 
 ble, or do away the benefit of the pardon. i Mac Nal. 
 256; 2 State Trials, 822, 1035. If Doctor Bollman were 
 bound to acknowledged himself acquainted with any 
 treason, he was guilty of a very high misdemeanor, and 
 therefore it would do away any benefit from the pardon. 
 But the court can not notice a pardon, unless it be a 
 pardon by statute ; for if under great seal and accepted, 
 yet it would be error in the court to allow if not pleaded 
 2 Hawk. ch. 37, sec. 59. 64, 65 ; 5 Bac. 294. If party only 
 entitled upon pleading it, then if he refuse, court can 
 not take notice of it. Here party refusing to accept, 
 court must say that he is not pardoned ; for until it is 
 pleaded, party liable, is to be punished. For if he plead 
 not guilty, the court will not allow him to plead it after- 
 wards. 2 Hawk. ch. 37, sec. 59 ; Bac. 294. 
 
 As to the third question, the witness must be the 
 judge of necessity: 1st, Because he can only know what 
 the answer is, and the bearing it will have. 2d, If the 
 court do decide they must know what would be the 
 answer ; and to get that from the witness would criminate 
 himsel-f, which I have shown he is not bound to do. 
 
 If it be objected, that by this means, no witness would 
 give evidence against the accused, it may be answered,
 
 DR. BOLLMAX'S PARDON. 193 
 
 1st, The refusal is upon oath, because he affirms that to 
 answer it would be to criminate himself. 2d, You have 
 the same obligation on him to answer that truly, as to 
 speak truth upon any other subject. 3d, If he perjure 
 himself in that, he would certainly do it to get clear of 
 giving evidence against the accused. It is his privilege 
 not to answer any question having that tendency. This 
 rule is upon the following authorities : The court in a 
 case, in 1743, in 4 State Trials, 414, note, states, to wit, 
 " If you think it will criminate yourself, you need not 
 answer it." I Mac Nal. 257-8. It is put to the witness 
 and not to the court, because he knew what was to be 
 the answer. If it be objected, that nothing is evidence 
 against him, which he may say on his oath, the answer 
 is, that it has been otherwise decided. 2 Doug. 398. 
 
 Mr. Martin would merely suggest a few additional 
 authorities. Among these were 5 Bac. p. 293 ; 2 Hawkins, 
 ch. 57, p. 59, 60, 65. Mr. Martin contended; that these 
 authorities demonstrated that there were two kinds of 
 pardons in England ; one by parliament, and the other 
 under the great seal. That the first exempted an indi- 
 vidual from the cognizance of the court as to the partic- 
 ular crime for which he might stand charged : but that 
 
 o o 
 
 the latter was no bar to a judicial prosecution ; and was 
 not indeed effectual until it had been pleaded and allowed 
 in court. Mr. Martin also quoted an authority from 
 Salkeld to show in corroboration of Mr. Williams's posi- 
 tion, that no witness, however exempted from the charge 
 and necessity of criminating himself however responsi- 
 ble on that account to the law can be made to discredit 
 himself by his own testimony. 
 
 Mr. Williams also quoted another authority, to the 
 same effect, from page 258 of Mac Nally's Evidence. 
 
 Mr. Mac Rae. It is extremely uncertain, sir, whether 
 Mr. Bollman will or will not answer the questions, which 
 may be propounded to him by the grand jury. If he be 
 the very honorable man, whom these gentlemen have 
 represented, he certainly will not refuse to answer. But 
 if he do refuse, it can only be upon the ground that he 
 is really a criminal. It is not, therefore, necessary for 
 us to determine this point at the present time. It is 
 not necessary to decide whether Doctor Bollman is or is 
 13
 
 194 TRIAL OF AARON BURR. 
 
 not a pardoned man. We do sincerely hope, that ne 
 will appear in the character of an honorable man ; and 
 not refuse to answer the interrogatories of the grand 
 jury. But if he should pursue that course, it will be 
 then time enough for us to bring this discussion before 
 the court. 
 
 Mr. Hay. The proposition which I had stated, seems 
 to me to be so evident, as to require little argument. I 
 consider Doctor Bollman as a pardoned man ; and there- 
 fore, I desired that the court should certify that fact for 
 the instruction of the grand jury. Gentlemen, however, 
 seem themselves to concede the very point for which we 
 are contending. Why do they so much expatiate on the 
 consequences of a pardon, if they do not consider that 
 one has been already established? Why do they wish to 
 screen Doctor Bollman, under the plea, that he can not be 
 made to defame himself, unless they consider him not 
 sufficiently secured by the possession of a pardon ? As to 
 the effect of a pardon, it is a distinct question, on which 
 the court may hereafter instruct the grand jury. But at 
 present, I wish the court merely to certify that he is psr- 
 doned. 
 
 Mr. Martin replied, that if the gentleman had attended 
 to his argument, he would have seen that most of his 
 authorities had borne upon the existence of a pardon, 
 and not upon the effects of one. 
 
 Chief Justice. Have any of you authorities to show 
 when the pardon operates. 
 
 Mr. Martin. Certainly from the time of pleading. 
 
 Chief Justice. You mistake my question : suppose 
 the pardon to be lost, is it then valid ? 
 
 Mr. Martin. If it be proved, that he had pleaded it 
 to an indictment, I presume an exemplification of it 
 would answer every purpose. 
 
 As another reason, sir, why Doctor Bollman has refused 
 this pardon, perrrit me to say, that it would be considered 
 as an admission of guilt. Doctor Bollman does not ad- 
 mit that he has been guilty. He does not consider a 
 pardon as necessary for an innocent man. Doctor Boll- 
 man, sir, knows what he has to fear from the prosecu- 
 tion of an angry government: but he will brave it all. 
 The man who did so much to rescue the Marquis La
 
 WITNESSES TO CHARGE OF TREASON. 195 
 
 Fayette from his imprisonment, and who has been known 
 at so many courts, bears too great a regard for his repu- 
 tation, to wish to have it sounded throughout Europe 
 that he was compelled to abandon his honor through 
 a fear of unjust persecution. 
 
 After some desultory conversation, Doctor Bollman 
 was sent up to the grand jury without any particular 
 notification. The questions whether he be pardoned, 
 and of course how far he may be called upon to disclose 
 all that he knows, were reserved for future discussionand 
 decision. 
 
 Mr. Hay requested leave to inform the grand jury 
 that fatigue alone had prevented General Wilkinson from 
 attending them on that day ; but that he should appear 
 before them on Monday. 
 
 Mr. Botts then observed, that there was one point in 
 the supplemental charge, which he wished to notice. In 
 one part of the charge, the clause of the constitution 
 relative to treason is quoted ; which clause recognizes 
 the necessity of two witnesses to prove an overt act. 
 In a subsequent part, there seems to be an implication 
 that one witness to an overt act is sufficient. How was 
 this seeming contrariety to be explained ? 
 
 Chief Justice. Though the constitution declares that 
 two witnesses are necessary to produce conviction, yet 
 it may not be so strictly and absolutely necessary to 
 authorize an indictment being found a true bill. My 
 present impression is, that though there must be be two 
 witnesses to the general charge of treason, yet that one 
 witness may be sufficient to prove one act, and another 
 to prove another. The Chief Justice quoted the statutes 
 of Edward VI. The law books made this discrimination 
 between a trial and an indictment. 
 
 Mr. Hay. There is one important question worthy of 
 our consideration. In your supplemental charge, sir, 
 you have referred to the statute of Edward VI. But no 
 such statute is now in force here. A general law of the 
 Virginia legislature, passed several years ago, swept off 
 all the British laws ; and then they set to re-enacting such 
 as were congenial with our form of government. But 
 this statute was certainly in force at the commencement 
 of our revolution ; and the question is whether, if it were
 
 r 9 6 TRIAL OF AARON BURR. 
 
 in force then, it can be so considered now. Do gentlemen 
 contend, that we are bound by a statue, which the gov- 
 ernment has not adopted ? 
 
 At the close of the court, the Chief Justice observed, 
 that he had explained the sense in which the words which 
 had been remarked on by Mr. Mac Rae, had been em- 
 ployed ; that he had no desire that they should remain in 
 the written opinion ; that he did not perceivq that they 
 were calculated to excite any feeling, or liable to be so 
 misunderstood; but as it was not his intention to convey 
 the idea, that a conviction in any event, right or wrong, 
 was wished ; and as that idea had been inferred, and 
 might hereafter be attached to them, by those who might 
 see the opinion without the explanatory words, he had 
 expunged them. 
 
 MONDAY, JUNE isth, 1807. 
 
 General Wilkinson was sworn, and sent to the grand 
 jury, with a notification that it would facilitate their in- 
 quiries if they would examine him immediately. 
 
 Mr. Wickham stated, that as the indictments were now 
 pending before the grand jury, it was necessary to recall 
 to the memory of the court, a circumstance which had 
 been early suggested, that a number of improper papers 
 might be exhibited before the grand jury, which ought 
 to be prevented by the court ; that the attorney for the 
 United States had pledged himself to send up no papers 
 which had not previously passed the inspection of the 
 court : but it had since occurred to Colonel Burr's coun- 
 sel, that the witnesses themselves might carry up such 
 papers, which would defeat, and render of no avail the 
 promise of the attorney; that it would be changing the 
 duties of a witness, which were to give testimony, not to 
 carry papers. Finding that nothing could be done with- 
 out an application to the court, Mr. Wickham sub- 
 mitted to them, whether they ought not to instruct the 
 grand jury to receive no papers> but through the medium 
 of the court. 
 
 Mr. Hay said, that the witnesses would not deliver any 
 papers ; that he hoped the court would not act upon a 
 mere suspicion, that the witnesses would carry up im-
 
 PAPERS TO GRAND JURY. 197 
 
 proper papers ; but that it was extremely probable, that 
 General Wilkinson, in delivering his evidence before the 
 grand jury, might find it necessary to refer to certain 
 letters which he had received, and to papers and docu- 
 ments relative to these mysterious transactions, in order 
 to refresh his memory. That he would not produce these 
 as distinct and substantive evidence ; but as so many 
 private memoranda, in order to strengthen his recollection 
 of the history of those transactions; and to enable him 
 to give a more connected and full narrative. Mr. Hay 
 hoped that after the splendid example of patience, which 
 the grand jury had displayed, they would not be inter- 
 rupted in the examination now commenced; but that he 
 had no objection to the court sending up by word, or by 
 writing, such instructions to them on this subject as might 
 be deemed proper. 
 
 Mr. Botts confessed, that after what had passed, this 
 opposition surprised him. On a former day, he under- 
 stood that it was agreed, that no papers should be sent 
 to the grand jury, but such as had been inspected by the 
 court. 
 
 Mr. Hay begged leave to explain. He had promised, 
 before the arrival of General Wilkinson, to send up no 
 papers without the inspection of the court. That he had 
 at that time, several authenticated papers, and several 
 affidavits ; and that he had an impression (though not a 
 very decided one) that they ought not to be submitted 
 to the grand jury. At that time gentlemen seemed to 
 apprehend, that certain papers and cyphered letters were 
 to be sent up to the grand jury, without any previous 
 motion. He had promised, and he would still pledge 
 himself, to avoid this course. But it might happen that 
 General Wilkinson had various papers to connect, explain, 
 and enlarge his narrative. If General Wilkinson had 
 brought these papers from New Orleans, and now pro- 
 duced them before the grand jury, in order to refresh his 
 memory, and enable him to explain and amplify his own 
 evidence, it would be correct; and no departure from his 
 word, to which he had substantially adhered. He hoped, 
 therefore, that gentlemen would not accuse him of a 
 breach of faith, and that Mr. Botts would withdraw his 
 expression of surprise.
 
 198 TRIAL OF AARON BURR. 
 
 Mr. Botts. My surprise continues. I believe the at- 
 torney for the United States is incapable of anything like 
 a willful breach of promise ; but while I am willing to 
 admit his intelligence, fairness, and honor, I will say, 
 without intending, and I hope without seeming to cast a 
 reproach upon a character whose head and heart are in- 
 ferior to none, that a strong bias has stolen on that gen- 
 tleman's mind, which ought to be vigilantly watched. 
 He was still surprised at the gentleman's proceedings, 
 because the very principle which he supports as to the 
 papers, would go to prevent the introduction of witnesses 
 before the grand jury. Papers he admits, are not proper 
 to go before the jury ; and therefore, if witnesses are to 
 carry them, they themselves ought not to go. If Mr. 
 Hay were called before the jury, he would produce no 
 papers, but what had passed through the court. But 
 Mr. Hay is not the only prosecutor in this business. 
 There is another equally active and more deeply con- 
 cerned. Mr. Hay admits that this zealous prosecutor may 
 produce his papers before the jury. If he merely produce 
 papers to refresh his memory, any instruction which may 
 go from the court, will be perfectly innocent in its effects ; 
 but it is possible that such an instruction may be necessary 
 to repress the introduction of very improper papers, 
 which he might hope to convey to the multitude abroad, 
 through the channel of the grand jury. We are asked 
 why we suppose that improper papers will be carried to 
 the grand jury? There was a particular reason to re- 
 commend this vigilance. It was understood that a spe- 
 cies of plunder had been permitted ; that the post-offices 
 had been robbed ; and that letters thus improperly 
 obtained, ought not to be laid before the grand jury, 
 without being first examined by the court. It was, in 
 fact, impossible that any papers, obtained by such means, 
 could be legal evidence. Mr. Botts here read as an author- 
 ity, from the eighth volume of the American Museum, 
 Judge Grimpkie's charge to the grand jury, to show that 
 written evidence ought not to be heard by a grand jury ; 
 it being a well-established principle, that a grand jury 
 ought not to hear such evidence, till it is examined, and 
 declared to be authentic, by the court. 
 
 Chief Justice. Neither affidavits nor papers, contain-
 
 PAPERS TO GRAND JURY. 199 
 
 ing distinct substantive testimony against the accused, 
 ought to be sent to the grand jury. 
 
 Mr. Martin. Mr. attorney has conceded this in sub- 
 stance ; and we admit that any witness may refer to 
 papers to refresh his memory. 
 
 Mr. Hay. I am willing to adhere in form and substance 
 to my promise. I know not what papers General Wilkinson 
 may produce. I was with him yesterday, and saw him in 
 possession of a great many. But which of them he may 
 choose to refer to, I can not possibly say. If gentlemen 
 wish to know the object of my visit to him, I will tell 
 them. 
 
 Mr. Martin. It is unnecessary. 
 
 Mr. Hay. I had said before in this court, that I would 
 not undertake to defend General Wilkinson ; but the re- 
 sult of my conversation with him yesterday is, that it is 
 my duty to defend him ; because I am well satisfied' that 
 he is an honest man, and a patriot. All my suspicions, 
 imbibed from the mysterious circumstances in the case, 
 have completely vanished ; and being convinced of his 
 unsullied integrity. I shall defend him with the most per- 
 fect sincerity. 
 
 Mr. Martin. The gentleman has taken a good way to 
 remove his unfavorable impressions, if that can be called 
 a good one, which consists in hearing but one side of a 
 cause. He has heard Wilkinson's own story. I wish he 
 would hear Colonel Burr's story ; perhaps his impressions 
 against him might also be removed. 
 
 Mr. Hay. I have heard his story from his counsel ; 
 but they have strengthened my conviction against him. 
 
 Mr. Wirt said, that he had perused the authority 
 quoted by Mr. Botts, and that he was satisfied that the 
 papers referred to by Judge Grimpkie, were only affida- 
 vits. [Mr. Wirt read quotations to prove his position.] 
 That the distinction was, that where a piece of written 
 testimony was distinct and substantive, it was not ad- 
 missible as evidence before a grand jury; but where it 
 was explanatory of viva voce evidence, it was proper and 
 admissible. That it was sometimes necessary to resort 
 to written papers as the very best testimony. For ex- 
 ample, said he, suppose General Wilkinson should state, 
 that on such a day he received a letter from Burr, by the 
 hands of Bollman or Swartwout ; would not Burr's letters,
 
 200 TRIAL OF AARON BURR. 
 
 in such a case, with Wilkinson's oath, that they were the 
 handwriting of Burr, be evidence even before a petit 
 jury, and of course before a grand jury? Such letters 
 are the best evidence of their own contents. If he were 
 to make a verbal statement of their contents, would not 
 the jury have a right to say to him, " Produce the origi- 
 nal, we demand it as the best evidence?" Suppose 
 General Wilkinson were to produce the cyphered letter, 
 would it not be competent to the jury to say, " Produce 
 it ; we shall receive it, and explanations of its contents ? " 
 This shows, that the objection, as made generally to all 
 papers, is fallacious and can not be supported by law or 
 reason. There are many different links in the chain of 
 evidence. It is manifest, that written documents are 
 sometimes not only evidence, but the very best, which 
 can, in the nature of things, be adduced. 
 
 Mr. WickJiam. The counsel said, that he would send 
 up no papers. But it is contended that the witnesses 
 may carry up papers to the grand jury. It is a distinc- 
 tion without a difference. The object is to prevent the 
 admission of improper evidence ; and it is precisely the 
 same thing in substance to receive it from a witness who 
 carries as from the attorney who sends it. When a petit 
 jury is empaneled, the court inspect the papers before 
 the jury are permitted to see them. The gentlemen have 
 laid down a broad position, that any witness may have 
 recourse to any papers to' strengthen his recollection. 
 This is certainly not correct. I beg leave to remind the 
 court of a case (Judge Chase's trial), which happened be- 
 fore the highest tribunal in this country, the senate of 
 the United States, where it was decided, that a witness 
 (Mr. -Hay himself) was not permitted to read memoranda, 
 even to refresh his memory. Mr. Wirt admits that an 
 affidavit may not be read, but that a paper, not on oath, 
 may be read. 
 
 Mr. Wirt. The gentleman is uncandid. I wish he 
 would understand me, and answer me candidly. He 
 puts an absurdity into my mouth which I disclaim. I 
 wish the gentleman to state his argument against my 
 argument as it was, and not according to his own deduc- 
 tions. 
 
 . Mr. Wickham. I agree that the gentleman did not 
 state an absurdity in terms ; but an absurdity inevitably
 
 PAPERS TO GRAND JURY. 201 
 
 follows from what he said. The court alone ought- to 
 determine what papers are evidence and proper to be at 
 all heard by a grand jury. 
 
 Mr. Hay. I beg leave to make one observation. I 
 care not for the decision in Chase's trial ; nor do I know 
 that it was as now stated ; but if it were, I assert, that 
 those who made it, knew that it was contrary to % law. 
 In the trials of Hardy, Tooke, and Thelwal, a con- 
 trary principle was determined. A witness, who was a 
 spy of the government, had no memory or recollection 
 of the circumstances he was to prove, but from his refer- 
 ence to written memoranda. Mr. Wickham knew this 
 decision not to be law, but he mentioned it merely be- 
 cause I was the witness in that case. 
 
 Mr. Bctts. Mr. Hay's observation is the longest I 
 ever heard. The senate did so decide, and perhaps unan- 
 imously ; and it was composed of the ablest lawyers 
 from all parts of the union. 
 
 Mr. Hay contested the fact of decision in that manner ; 
 but he was irritated, and did not recollect precisely how 
 it was ; but he was informed that it was not decided un- 
 animously, though it might have been so pronounced. 
 
 Messrs. Martin and Wickham stated, truit the decision 
 was by eighteen senators against sixteen (which was the 
 fact). 
 
 Mr. Botts.M.?. Hay and Mr. Wirt take different 
 grounds. 
 
 Mr. Martin contended, that the court was to decide 
 what evidence was to go to the grand jury. He cited 
 Danby's case, where a witness gave a deposition under 
 the statute of William and Mary ; he prevaricated before 
 the grand jury, and they sent for his deposition to con- 
 front him. The court decided that they should not have 
 it, because it was improper for them to see it. 
 
 Chief Justice. There is a difference between the grand 
 and petit jury. The former are to make inquiry ; they 
 may send for witnesses; directions ought therefore to be 
 given them in general terms. But lam not satisfied that 
 a court ought to inspect the papers which form a part of 
 a witness's testimony before he is sent to the grand jury. 
 This would render it necessary to examine the witnesses 
 in open court. The chief justice here delivered the opin- 
 ion of the court, reduced to writing, in order to be laid
 
 202 TRIAL OF AARON BURR. 
 
 before the grand jury. Its purport was, to instruct the 
 grand jury not to inspect any papers but such as formed 
 a part of the narrative of the witness, and prove to be the 
 papers of the person against whom an indictment was 
 exhibited. 
 
 Mr. Hay objected to this form of instruction. Suppose 
 a pajjer from a person closely connected with the accused 
 were adduced ; as, for instance, Doctor Bollman. Such 
 a paper maybe important to prove to the jury the integ- 
 rity and proper conduct of General Wilkinson. It may 
 have had a material influence on his mind, even if not 
 genuine. 
 
 Chief Justice. Your argument is, that the papers are 
 to be admitted to justify the conduct of the witness ; but 
 they ought not to bear upon the accused. 
 
 Mr. Hay. The prejudices in the western and other 
 papers against General Wilkinson's character, represent- 
 ing him as connected with Aaron Burr, make it necessary 
 that his reputation should be vindicated. He comes be- 
 fore the jury as a suspected person. The language of 
 the cyphered letter seems to countenance the conjecture. 
 It may be necessary to exhibit these papers to support 
 the credit of the witness. 
 
 Chief Jiistice. The opinion may therefore be amended, 
 by adding that such papers are also admissible as tend 
 to justify the witness, but not to bear upon the prisoner. 
 
 Mr. Wickhain. General Wilkinson is not on his trial. 
 Their object is not to vindicate Wilkinson, but to accuse 
 Burr, who is on his trial. Wilkinson's oath is to be sup- 
 ported by proving papers by his oath ; so that he is to 
 support himself. This is not legal testimony, and ought 
 not to be admitted.' It is true, that these papers do not 
 criminate Colonel Burr directly, but they bear upon him 
 by vindicating Wilkinson ; and it is a sound rule of law, 
 that what can not be done directly shall not be permitted 
 to be done indirectly. 
 
 Mr. Wirt. The court does not contravene that doc- 
 trine. On Shaftsbury's trial, the grand jury wished to 
 examine witnesses as to the credibility of a witness. 
 Pemberton rejected such evidence, but that opinion has 
 been exploded. It is the privilege and duty of the 
 grand jury to judge of the credibility of witnesses. If
 
 INSTRUCTIONS TO GRAND JURY. 203 
 
 they have doubts of the credibility of Wilkinson, they 
 ought to inquire into, and be satisfied upon the point. 
 They may call upon him for an explanation as to facts 
 and circumstances, which he can afford by the production 
 of his papers. 
 
 Mr. Hay proposed an amendment to the court's in- 
 structions : " that any paper might be exhibited which 
 came from the accused, or any other person proved to be 
 an accomplice of the accused, or that formed a part, or 
 was explanatory of the witness's narrative." 
 
 Mr. Martin. The prpposed alteration suits the gentle- 
 man's purpose. There is no paper under heaven, but 
 what might be introduced as part of his narrative ; even 
 papers procured by breaking open letters from the post- 
 office, or seized by violence or robbery, might be so used 
 under that general definition. 
 
 The Chief Justice wished to send some specific instruc- 
 tions to the grand jury, to prevent the delay which might 
 arise from their coming into court, when they had a par- 
 ticular paper before them, on which they would wish to 
 obtain the instruction of the court. 
 
 Mr. Hay, contended, that the alteration he had sug- 
 gested was proper ; and quoted authority to show, that 
 when a man was once proved to be an accomplice or con- 
 nected with another, what was in proof against the other, 
 was good proof against 'him [which see hereafter]. 
 
 Chief Justice. Is there any authority to show, that 
 papers communicated by an accomplice can be used as 
 evidence ? 
 
 Mr. Hay. The doctrine is, that "where a man is 
 proved to be an accomplice, his papers may be used 
 against another." In Home Tooke's trial, Erskine con- 
 ceded, that where the prisoner's connection with a third 
 person was proved, the letters or papers of that third 
 person relating to the question before the court, were 
 testimony against him. I East's Crown Law, page 97. 
 
 Mr. Wirt added, that there was no difference between 
 the words or writings of an accomplice as evidence; in 
 support of which he referred to the trials of Hardy, 
 Tooke, and Thelwal [which see hereafter], and to 6th 
 Durnford & East's reports, p. 527 ; where it was solemnly 
 determined, on the trial of William Stone for high trea-
 
 204 TRIAL OF AARON BURR 
 
 son. that " a letter sent by one of the conspirators in pur- 
 suance of the common design, with a view of reaching 
 the enemy, was evidence against all persons engaged in 
 the same conspiracy." 
 
 Mr. Martin. The cases mentioned by the gentleman 
 are cases of treason, for a conspiracy to kill the king; it 
 is only in such cases, where the crime consists in the 
 imagination of the mind, " to compass the death of the 
 king," that such testimony is admissible ; but where 
 " levying war" is the charge, the declarations or acts of 
 third persons, however connected, can not be admitted 
 as evidence. 
 
 Mr. Wickham. Mr. Wirt's authorities do not apply 
 to the case of levying war. The constitution of the 
 United States says, that no person shall be convicted 
 except by the evidence of two witnesses, or his own con- 
 fession in open court. Colonel Burr's confession out of 
 court could not be used against him ; but it seems by 
 the doctrine of gentlemen, that the confession of others 
 can be adduced against him. 
 
 Mr. Hay. There are several good lawyers on the 
 grand jury. Mr. Martin says it would take him a day to 
 state what he had to say on this subject. It would take 
 him his whole life to prove the distinction he contends 
 for. Modern systems of evidence lay down the doctrine 
 without the distinction. There is much absurdity in the 
 distinction. The same rule ought to prevail in both 
 cases. Levying war against the states, is a higher offense 
 than compassing the death of the king. In the latter 
 case, the declarations of third persons connected with the 
 person accused, are admissible evidence; & fortiori they 
 ought to be in the former case. Mr. Wickham says that 
 confession in open court is requisite to convict. He does 
 not understand the doctine correctly. It is this, sir: 
 that where a party is convicted on his confession only, it 
 must be in open court ; but where the confession itself is 
 proved as evidence of an overt act, it must be proved by 
 two witnesses. This discussion is an unnecessary waste 
 of time ; it may be thus prolonged at gentlemen's pleas- 
 ure ; but it is only proper to tell the jury to ask advice 
 when they want it. 
 
 Mr. Martin thanked the gentleman for enlightening
 
 INSTRUCTIONS TO GRAND JURY. 305 
 
 his mind; but insisted that such a construction as that 
 contended for by him, was novel and extraordinary. 
 
 Mr. Botts, after some facetious remarks on the doctrine 
 of pleas, rejoinders, and rebutters, &c., as exemplified in 
 the cause, proceeded to this effect : The declarations of 
 persons connected in a conspiracy, are not to be received 
 in evidence until the conspiracy itself is proved. Pre- 
 viously, the association and the extent of it must be 
 proved. The association itself is not to be proved by 
 such declarations. Such evidence is admissible under 
 very limited restrictions. It is unreasonable and absurd 
 for such evidence to prevail over evidence of a superior 
 nature; over evidence of overt acts. Neither conspiracy 
 nor intention is war. The best evidence which the na- 
 ture of the case is susceptible of, must be produced on 
 all occasions. You make it out by such an unreasonably 
 dangerous doctrine as this is, that where a guilty inten- 
 tion is once formed it can not be forsaken with safety ; 
 for if it be admissible evidence, a previous declaration 
 may be proved against a man after he has repented and 
 relinquished his criminal intentions. 
 
 Mr. Hay informed the court, that the grand jury had 
 sent for Doctor Bollman ; that they wanted him to 
 decypher, if he could, a cyphered letter annexed to 
 Mr. Willie's affidavit, and which he held in his hand. 
 That Mr. Willie, the reputed secretary of Mr. Burr, 
 would prove the identity of the paper, and Dr. Bollman, 
 it was expected, would interpret it. 
 
 Mr. Martin hoped the affidavit would be severed from 
 the letter to which it was annexed. 
 
 Mr. Hay consented : and Mr. Willie who was absent, 
 was sent for. 
 
 The Chief Justice declared, that he did not wish to 
 pronounce an opinion on the distinction as to the evi- 
 dence in the two kinds of treason, without seeing authori- 
 ties referred to. That he was inclined to think that such 
 a distinction as was stated might exist. 
 
 Here the chief justice delivered the instruction, as 
 amended, to the marshal, to be transmitted to the grand 
 jury. It was not read in court. 
 
 Mr. Hay wished the expression concerning " credi- 
 bility " to be struck out as implying a doubt.
 
 206 TRIAL OF AARON B URR. 
 
 Chief Justice. That idea was not suggested by the 
 court ; such evidence is deemed inadmissible, except 
 for the purpose of supporting the credibility of wit- 
 nesses. 
 
 Mr. Hay wished the latter clause to be altered, as the 
 grand jury might think themselves bound to make ap- 
 plication to the court ; and that showed the impropriety 
 of giving such instructions at all. 
 
 Mr. Botts. It is indecorous to be consuming time 
 until the grand jury shall have returned ; their own ex- 
 cellent understanding will condemn this conduct. 
 
 Mr. Hay. General Wilkinson is not under examina- 
 tion. 
 
 Mr. Wickham. Gentlemen think General Wilkinson 
 the sole patron of the cause, but there are other wit- 
 nesses. 
 
 Mr. Hay. None who are expected to have any papers. 
 Mr. Hay again produced the cyphered letter, annexed 
 to Willie's affidavit (Willie appearing in court). He 
 then proceeded : This is the paper which I wish to trans- 
 mit to the grand jury. It is addressed, I understand, to 
 Doctor Bollman under a fictitious name, and is all in the 
 handwriting of Mr. Willie. 
 
 Mr. Botts objected to its being sent up to the grand 
 jury ; that he understood that no paper was to be laid 
 before them ; that was not material to the cause, whether 
 it could or could not be authenticated ; and that gentle- 
 men must therefore prove both its materiality and its 
 authenticity. 
 
 Mr. Hay. A hard proposition indeed, when it is 
 written partly in cypher and partly in German ! I deem 
 it material, because I understand it was either dictated 
 by the accused, or first written by him, and afterwards 
 writen by his secretary, and at his request ; it is addressed 
 to Henry Wilbourn alias Erick Bollman. I wish it to 
 be sent up while Doctor Bollman is before the grand 
 jury. 
 
 Mr. Botts. Our wishes are at issue. 
 
 Mr. Wirt. May it not be received under the instruc- 
 tions already sent up? 
 
 Mr. Burr. The paper is now in possession of the 
 court ; it is not to be sent up to the grand jury, but under
 
 THE CYPHERED LETTER. 207 
 
 the judgment of the court ; and of course the court 
 must be satisfied with the materiality of the paper. 
 
 Mr. Hay. The accused is mistaken in point of fact. 
 The paper is in my possession. Though I considered 
 myself bound to show it to the court according to my 
 agreement, I have not yet delivered it, nor am I bound 
 to deliver it. 
 
 Mr. Wickham. Why was it offered to the court, if it 
 were not to be put into their possession? If it be merely 
 brought into court that it maybe sent to the grand jury, 
 and not considered as in possession, or under the control 
 of the court, any paper may be conveyed to them in the 
 same manner. Mr. Hay asserts, that it is addressed to 
 E. Bollman. But how has it been obtained ? Has it 
 not been taken from the post-office? Has it not the 
 post-office mark on it ? Has it not been obtained by 
 felony? He wished to see it. 
 
 Mr. Hay refused to show it, and said that he would 
 know what to do with papers hereafter. [He was 
 understood to deny that there was any post-office mark 
 on it ; this, however, may be a mistake.] 
 
 Mr. Wickham demanded as a matter of right, that the . 
 paper should be delivered to him. 
 
 Mr. Hay. I deny that the paper is in possession of 
 the court, or that it was offered by me. If "it were, I 
 acted improperly. There is no precedent to justify the 
 doctrine, that I was compelled to offer it. A paper 
 offered to the court is either delivered or read. I did 
 neither. I have a right to send any paper to the grand 
 jury, under the directions already received by them ; 
 unless it be explained by Willie and Bollman, it will be 
 no more than an oak leaf. I hope I shall be permitted 
 to pursue the usual and regular course. 
 
 Mr. Wickham. If the paper be not before the court, 
 I wish to know what is the question ? Does he offer it 
 to the court ? [Mr. Hay. No.] How then can any notice 
 be taken of it ? How can he send it up to the jury. By 
 the marshal? He is the officer of this court, and bound 
 to pursue its orders. By Mr. Willie? He is but a wit- 
 ness, and not bound to carry it. If any paper go from 
 the prosecutor to the grand jury, it must be with the 
 leave of the court. If a witness go up, it is because he is
 
 zoS TRIAL OF AARON BURR. 
 
 presumed to be a relevant witness; but if it be a paper 
 how can its relevancy be established, until its contents 
 and materiality are known ? If an improper paper be 
 sent to the grand jury, the indictment may be quashed, 
 because founded on illegal evidence. Was not the leave 
 of the court asked ? If it were, that put it in the power 
 of the court. If it were not asked, the whole is improper 
 and illegal. As to what they say they can prove respect- 
 ing the paper, let them first prove it. When they do, 
 the paper may be proper. 
 
 Some ingenious sparrings between Messrs. Wickham 
 and Wirt amused the audience a moment; when, 
 
 Mr, Botts objected to the transmission of the paper. 
 It was immaterial, or it was not. If it were immaterial, 
 why embarrass the jury with it? If it contained perti- 
 nent matter, it was certainly wicked matter, in which 
 Mr. Willie may be himself concerned. If he be sent to 
 the grand jury with this paper, what would he say about 
 it ? Would the court wish him to say anything that 
 would criminate himself? We have a right, said Mr. 
 Botts, to see this paper. Perhaps we shall find, that it 
 has been filched from the post-office, contrary to the 
 eighth amendment of the constitution, which protects 
 every man's papers from unreasonable searches and 
 seizures. If it has been obtained by such illegal and 
 violent means, perhaps the court would arrest it ; even 
 the grand jury would not dirty their fingers with it. 
 
 Some desultory conversation ensued, when Mr. Willie 
 was called to the court. 
 
 Mr. Williams, his counsel, hoped that no question 
 would be put the answer to which might tend to crimin- 
 ate himself. 
 
 Mr. Mac Rea. Did you copy this paper? 
 
 Mr. Williams (after consulting with his client). He 
 says, that if any paper he has written have any effect on 
 any other person, it will as much affect himself. 
 
 Mr. Wirt. He has sworn, in his deposition, that he 
 did not understand the cypher of this letter. How then 
 can his merely copying it implicate him in a crime when 
 he does not know its contents ? 
 
 Mr. Mac Rea. We will change our question. Do you 
 understand the contents of that paper?
 
 THE CYPHERED LETTER. 209 
 
 Mr. Williams. He objects to answering. He says, 
 that though that question may be an innocent one, yet 
 the counsel for the prosecution might go on gradually, 
 from one question to Another, until he at last obtained 
 matter enough to criminate him. 
 
 Mr. Mac Rea. My question is not, " Do you under- 
 stand this letter, and then what are its contents ? " If I 
 pursued this course, I might then propound a question 
 to which he might object ; but unless I take that course, 
 how can he be criminated ? 
 
 Mr. Botts. If a man know of treasonable matter, and 
 do not disclose it, he is guilty of misprision of treason. 
 Two circumstances, therefore, constitute this crime : 
 knowledge of the treason, and concealment of it. The 
 knowledge of the treason, again, comprehends two ideas ; 
 that he must have seen and understood the treasonable 
 matter. To one of these points, Mr. Willie is called 
 upon to depose. If this be established, who knows but 
 the other elements of the crime may be gradually un- 
 folded, so as to implicate him. The witness ought to 
 judge for himself. 
 
 Mr. Mac Rea. I did not first ask, if he copied, and 
 then understood it? but first, if he understood it? Had 
 he answered this question in the affirmative, I certainly 
 should not have pressed the other question upon him, 
 because, that might have amounted to self-crimination ; 
 but, if he did not understand it, it could not criminate 
 him. 
 
 Mr. Hay. I will simply ask him whether he knows 
 this letter to be written by Aaron Burr, or by some one 
 under his authority. 
 
 The Chief Justice said that that was a proper ques- 
 tion. 
 
 Mr. Williams. He refuses to answer ; it might tend 
 to criminate him. 
 
 The court were of opinion, that Mr. Willie should 
 answer upon oath, whether or not he thought that an- 
 swering the proposed question, might have a tendency 
 to criminate himself. 
 
 Here a long desultory argument ensued. 
 
 Chief Justice. Has the witness a right to refuse to 
 answer? 
 
 114-
 
 210 TRIAL OF AARON BURR. 
 
 Mr. Williams. The knowledge of the treason, and 
 concealment of it amount to a misprision of treason. 
 
 Chief Justice. The better question is, Do you under- 
 stand it? 
 
 Mr. Williams. He ought not to have such a question 
 put to him, because he might be obliged to answer " Yes." 
 He ought not to be compelled to answer, if it might 
 possibly criminate him. The witness is to |udge for him- 
 self though the question may not seem to affect him. 
 He referred to the case of young Goosely before referred 
 to by Mr. Randolph. 
 
 Mr. Botts. I will give Mr. Hay the benefit of an au- 
 thority, i Mac Nally, 257-258, which shows, that the 
 possibility of crimination is sufficient to excuse the wit- 
 ness from answering. 
 
 Mr. Williams. What the witness says here, tending 
 to his own crimination, may be used as evidence against 
 him on a prosecution. If he answer at all, he is deprived 
 of the privilege given by the law, not to criminate one's 
 self. 
 
 Chief Justice. If he be to decide upon this, it must 
 be on oath. He asked Willie, whether his answering the 
 question, whether he understood that letter, would crim- 
 inate himself? He answered, it may in a certain 
 case. 
 
 Chief Justice. I wish to consider the question until 
 to-morrow. 
 
 Judge Griffin (to Mr. Williams). The case of Goosely 
 was not as you represented it. It was the court who 
 knew that the witness was one of those who robbed the 
 mail. 
 
 Mr. Hay. The doctrine is most pernicious and con- 
 trary to the public good. 
 
 Mr. Williams. The public good does not require the 
 conviction of Colonel Burr so much as to dispense with 
 the law. 
 
 It was then agreed that the point should be argued to- 
 morrow, and Colonel Burr's counsel promised to produce 
 their authorities to show, that Willie could not be com- 
 pelled to answer such questions, as might in his own 
 ooinion tend to criminate himself.
 
 LETTER FROM THE PRESIDENT. 211 
 
 TUESDAY, June i6th, 1807. 
 
 As soon as the court met, Mr. Hay produced and read 
 the following letter from the President of the United 
 States, in answer to his letter on the subject of the sub- 
 pcena duccs fecum, observing at the same time, that he 
 read it to show the disposition of the government not to 
 withhold any necessary papers, and that if gentlemen 
 would specify what orders they wanted, they would be 
 furnished without the necessity of expresses: 
 
 WASHINGTON, June isth, 1807. 
 
 " SIR, Your letter of the pth is this moment received. 
 Reserving the necessary right of the President of the 
 United States, to decide independently of all other au- 
 thority what papers coming to him as president, the pub- 
 lic interest permits to be communicated, and to whom, 
 I assure you of my readiness, under that restriction, vol- 
 untarily to furnish on all occasions whatever the purposes 
 of justice may require. But the letter of General Wil- 
 kinson of October 2ist, requested for the defense of 
 Colonel Burr, with every other paper relating to the 
 charges against him, which were in my possession when 
 the attorney-general went on to Richmond in March, I 
 then delivered to him ; and I have always taken for 
 granted he left the whole with you. If he did, and 
 the bundle retains the Ofder in which I had arranged it, 
 you will readily find the letter desired, under the date 
 of its receipt, which was November 25th ; but lest the 
 attorney-general should not have left those papers with 
 you, I this day write to him to forward this one by post. 
 An uncertainty whether he be at Philadelphia, Wilming- 
 ton, or New-Castle, may produce delay in his receiving 
 my letter, of which it is proper you should be apprised. 
 But as I do not recollect the whole contents of the letter, 
 I must beg leave to devolve on you the exercise of that 
 discretion which it would be my right and duty to exer- 
 cise, by withholding the communication of any parts of 
 the letter which are not directly material for the purposes 
 of justice. With this application, which is specific, a 
 prompt compliance is practicable ; but when the request 
 goes to copies of the orders issued, in relation to Colonel'
 
 212 TRIAL OF AARON BURR. 
 
 Burr, to the officers at Orleans and Natchez, and by the 
 secretaries of the war and navy departments, it seems to 
 cover a correspondence of many months, with such a 
 variety of officers civil and military, all over the United 
 States, as would amount to laying open the whole exec- 
 utive books. I have desired the secretary at war to 
 examine his official communications, and on a view of 
 these we may be able to judge what can and ought to be 
 done, towards a compliance with the request. If the 
 defendant allege, that there was any particular order 
 which, as a cause, produced any particular act on his part, 
 then he must know what this order was, can specify it, 
 and a prompt answer can be given. If the object had 
 been specified, we might then have had some guide for 
 our conjectures, as to what part of the executive records 
 might be useful to him. But with a perfect willingness 
 to do what is right, we are without the indications which 
 may enable us to do it. If the researches of the secre- 
 tary at war should produce anything proper for commu- 
 nication and pertinent to any point we can conceive in 
 the defense before the court, it shall be forwarded to you. 
 I salute you with esteem and respect. 
 
 "TH. JEFFERSON. 
 " George Hay, Esq." 
 
 Some conversation ensued, about the specification of 
 the papers wanted for the executive. 
 
 Mr. Hay stated, that in his communication to the 
 president, to which this letter was a reply, he had men- 
 tioned these papers in the terms by which he thought 
 the opposite counsel would probably have described 
 them.. The president, however, did not deem this de- 
 scription sufficient. 
 
 Mr. Burr's counsel then stated, that they had sent an 
 express to Washington for these papers, with a subpoena 
 to the president, and that it would appear on the return, 
 whether they could obtain them or not. 
 
 The Chief Justice recommended a certain order in the 
 debate, and that only two counsel should speak on each 
 side ; that it would be the best course on every point of 
 subordinate importance, for the counsel on one side to 
 open the motion or argument, the opposite counsel to
 
 THE CYPHERED LETTER. 213 
 
 reply, and the party who opened, to close the debate, 
 unless some new matter rendered a departure from this 
 rule proper. 
 
 Both parties acquiesced in the propriety of this arrange- 
 ment, except that Mr. Martin said, that as there was no 
 other business before the court, there was no necessity 
 of adhering to the rule, limiting the number of counsel 
 to speak. 
 
 Mr. Hay hoped the rule would be observed ; it would 
 relieve himself and some other gentlemen. He then 
 begged leave to call the attention of the court to a sub- 
 ject mentioned yesterday ; that Docter Bollman had 
 gone up before the grand jury. What his answers were 
 he knew not ; but he thought he ought to be sent to the 
 grand jury with Willie, that he might interpret, and 
 Willie could authenticate the cyphered letter; hence 
 arose the necessity of deciding the proposition that he 
 was a pardoned man. 
 
 Mr. Botts hoped, that they would not be interrupted 
 in the discussion of the question about Willie, which they 
 were about to begin. 
 
 Mr. Hay was willing to discuss either point first. 
 
 Here a desultory conversation ensued, in which Mr. 
 Hay insisted that Doctor Bollman was a pardoned man, 
 and ought to communicate all he knew to the grand 
 jury; which was denied by the other side ; when Doctor 
 Bollman, addressing himself to the court, said, I have 
 answered every.question that was put to me by the grand 
 jury. 
 
 Chief Justice. Is there any obligation to ask Doctor 
 Bollman if he can decypher the letter ? 
 
 Mr. Martin. It will be time enough to discuss that 
 question, after the letter shall have been before the grand 
 jury. 
 
 Mr. Mac Rae. I wish the question now put. I asked 
 Willie whether he understood that part of the letter which 
 is in cypher; he could, not be criminal, if he did not un- 
 derstand it. I wish the part which is written in German 
 now to be explained, to show that there is nothing crim- 
 inal in it. I wish Bollman to translate that part. 
 
 Chief Justice. I had rather proceed with the other 
 ^point now ; how far a witness may refuse to answer
 
 2i4 TRIAL OF AARON BURR. 
 
 a question, which he thinks would criminate him- 
 self, 
 
 Mr. Botts. I am glad to be relieved from the neces- 
 sity of showing the versatility of gentlemen, who fly 
 from one point to another. I am sorry they should at- 
 tempt to drive us from the discussion. The oblique 
 insinuation of Mr. Hay against Willie, seeming to pre- 
 suppose his guilt from his exercising the privilege of 
 not answering the questions propounded to him, must 
 be answered, though it is painful for me to notice such 
 illiberal attacks. He says, that Willie acts as if he were 
 engaged in the conspiracy. Can not Willie have another 
 excuse in seeking exemption from the examination, than 
 conscious guilt ? The attorney for the United States sees 
 every object, connected with Colonel Burr, though a jaun- 
 diced medium. With him " trifles light as air, are confirma- 
 tion strong as proofs of holy writ." How far he might be 
 disposed to involve this young man, upon a confession 
 of having copied a letter in cypher, though of v harmless 
 import, I am not prepared to say. But let Willie only 
 commit himself, so far as to make such confession, and 
 then be called by his business to that poor unfortunate, 
 enslaved country, Louisiana, and it may be the pretext 
 for oppressing him most cruelly. He may be seized, 
 thrown into a dungeon, or into the hold of a ship in the 
 most rigorous season, and be heard of no more, unless he 
 should have the better fortune of being transported to 
 Washington for trial. An unfortunate ignorant man 
 should be guarded from the penalty of suspicion. The 
 danger to be apprehended from this source is not imagi- 
 nary. We have not arrived at that part of our inquiry, 
 which is awfully terrible, and apt to rouse the indignation 
 of our country ; we shall very soon give you an awful 
 impression of the miseries of that ill-fated territory, un- 
 der the total surrender of the civil authority to military 
 guidance. I am driven prematurely to glance at one 
 outrage which may serve as a sample of the wretched 
 state in which that section of our dependencies is. A 
 citizen of the United States, now within the hearing of 
 my voice, in a time of profound peace, was seized in 
 New-Orleans, and, without being charged with any 
 offense, but merely on suspicion that he could give evi-
 
 THE CYPHERED LETTER 215 
 
 dence against Colonel Burr in this court, to which he 
 was willing to come, was committed to prison without 
 bail or mainprize ; thrown into a stinking room with the 
 commonfelonsand negroes confined there, and only taken 
 out at last to be transported on board of a vessel to 
 Richmond in custody. He was hurried like a malefactor 
 on board, without being permitted to go to his lodgings 
 to get a shirt to put on. He was forced to yield, in the 
 humility of abject submission, to the arbitrary will of his 
 oppressors. Are we content to bear such enormities? 
 A man, only suspected of being a witness, is subjected to 
 military slavery. Shall we furnish a pretext against this 
 stranger, now called on to implicate himself, in what are 
 called the treason and misdemeanors of Colonel Burr ? 
 It has been said, that my client and his counsel have 
 taken much interest in this privilege. I feel interested 
 to protect the innocence of that young man from the 
 vengeance of illegal power, My client feels the same 
 anxiety. He is solicitous that he alone should feel the 
 pressure of unjust suspicion and persecution. 
 
 But how did this letter come here ? Foulness and 
 violence are betrayed in the mode of its acquisition. In 
 the hardest and most arbitary times in England, papers 
 which were seized by force, were brought forward as evi- 
 dence against the party from whom they were taken ; but 
 succeeding times have abhorred the doctrine ; and papers 
 found in possession of a party have been deemed the 
 weakest of all evidence. The foulness of that very mark 
 of 25 cents deserves execration. 
 
 Mr. Hay said that there was no post mark. 
 
 Mr. Botts. The' "25 " on the back, is the only post- 
 mark of many of the country post-offices. Mr. Hay did 
 not withhold it on that account. How came that mark 
 there ? Will the gentleman say how the paper was 
 acquired ? If the post-office was robbed, the possession 
 of the paper was gained feloniously. The constitution 
 has provided against the seizure of papers ; and the act 
 of congress has fixed the offense of stealing from the 
 post-offices. The means of obtaining the paper are 
 unconstitutional. The end can not be sanctioned, 'with- 
 out maintaining the means. It is impossible that this 
 most detestable vice, of the most infamous of European
 
 2i6 TRIAL OF AARON BURR. 
 
 courts, can have been patronized by the government. 
 By a familiarity of our rulers with such hateful practices 
 the people would be demoralized. I claim from the 
 counsel for the United States, as patriots, their aid to 
 sanction my propositions, and join me in arraigning an 
 act, which will disgrace all who had any agency in it. It 
 must be a dreadful state of society, in which such an of- 
 fense should be made the means of assisting to prove 
 another. The principal of the government, if here, would 
 join in the denunciation. If it behoove the government 
 to suppress a paper thus unconstitutionally, clandestinely, 
 and illegally obtained, if they can not use the end with- 
 out sanctifying the means, I wish, for the honor of the 
 government, that the paper may be suppressed. I hope 
 that in the dignity and generous spirit of Chatham, they 
 will renounce it as unworthy of their use. It will do 
 more mischief than the treason could, were it real. 
 
 I come now to the abstract question of law. The 
 question put to Willie is, do you understand that the 
 original of this letter was written by Colonel Burr? 
 
 Mr. Mac Rae. That is not the question last put. It 
 is, Do you understand that part of the letter which is ?n 
 cypher ? , 
 
 Mr. 2?<?/fo. -Very well. The gentlemen charge that 
 this letter contains treasonable matter. 
 
 Mr. Hay denied it. 
 
 Mr. Botts. Either the letter contains treasonable 
 matter or it does not. If the latter, it is irrelevant and im- 
 proper for discussion. If treasonable matter be contained 
 in it, the question goes to criminate the witness. If he 
 answer "Yes," he is infamous. The rule is, that you 
 shall not make the witness answer a question which may 
 tend to implicate him in moral or legal turpitude. The 
 witness himself is the judge, how far his answer may 
 affect him. If he were obliged to answer, that the court 
 may judge of its tendency, he would be surrendering his 
 protection in the means of securing it. If the answer 
 should tend to make a single link in the chain of testi- 
 mony necessary to involve him in suspicion, he has a 
 right to decline it. The link can not be perceived by the 
 judges to belong to the chain, without an exposure of 
 every other part of it. Suppose another question were
 
 THE CYPHERED LETTER. 217 
 
 put to him, How do you understand it? He must 
 answer it, as he is to tell the whole truth. Half of the 
 truth is not to be told. Gilbert's Law of Evidence, p. 
 134. 9 State Trials, 434. Another authority from an 
 able arid impartial court, which has been already referred 
 to, shows that although a question may be apparently 
 innocent, yet a witness is not bound to answer it, if he 
 think that it tends to criminate him. The question was, 
 " What profession are you of? " The witness was a 
 Roman Catholic priest, and the answer would have sub- 
 jected him to penalties. The court did not know what 
 the question would be, or how it would affect him, but 
 the witness did know. His right to decline to answer 
 was sustained. What question could on its face, be more 
 harmless than that resisted by that witness ? Unless the 
 witness be made the sole judge of answering, the benefit 
 of the rule is lost to him. 
 
 If, as I have already observed, the contents of the let- 
 ter be not of a treasonable nature, it is irrelevant ; we 
 know not the contents of it. Suppose the letter were 
 written by an amorous young fellow to his sweetheart, 
 would it be a proper subject of discussion in this case ? 
 
 I shall conclude with an admonition, or an humble 
 request, that gentlemen will give us a better opportunity 
 to prepare ourselves for the defense of our rights, by pos- 
 sessing the court with any papers they intend to exhibit 
 and letting us see them. It is a matter of right, that 
 when a paper is offered for any purpose, it should be 
 deposited with the clerk. Heretofore we have been 
 prevented from getting a sight of any paper till the mo- 
 ment of discussion, and then obtained it not without 
 difficulty. 
 
 Mr. Williams (counsel for Mr. Willie). I lay down two 
 propositions which I deem incontrovertible : first, that 
 a witness is not bound to criminate himself: secondly, 
 that a witness is from necessity the best judge of the 
 tendency of his answers. 
 
 To support the first proposition, I refer the court to I 
 Mac Nally, 256-7-8 ; Douglas, 590 ; Goosely's case in 
 this court, where I understand both points for which I 
 contend were established. If a witness admit that he 
 knows the contents, he is guilty of misprision of treason,
 
 ai8 TRIAL OF AARON JBURR. 
 
 and if it only tend to produce the result, he is not bound 
 to answer. 
 
 Second, The witness is to be the judge how far he 
 ought to answer. The reason of the rule supports this 
 position. It is given for his benefit; it is a privilege for 
 his protection. The other rule of examining witnesses on 
 the " voir dire " before they are sworn in chief, is explan- 
 atory of this rule. A witness is asked whether he is 
 interested in the event of the cause, before he is admitted 
 to give evidence relative to the matter in issue. If the 
 opinion of the person offered as a witness be that he is 
 interested, he is rejected as an incompetent witness. If 
 his opinion be to exclude him in civil cases, h fortiori, 
 ought it to exempt him from giving testimony in a crim- 
 inal prosecution where his personal safety may be in 
 danger? The witness only knows what will be the an- 
 swer to the question. The court can not know. It may 
 discharge or criminate him. The witness must tell the 
 court what his answer will be, before they know it. A 
 bystander who hears him, may be called on to fix guilt 
 on him by his declaration. The interest of the United 
 States can not deprive him of his right. His saying that 
 he can not answer without criminating himself is on oath, 
 and if he were to perjure himself upon that point, he would 
 be equally ready to perjure himself on every other point. 
 Whether public justice require an answer, is not the 
 question ; but whether the witness ought to be com- 
 pelled to answer, when he believes it would criminate or 
 endanger him ? To compel him would be a violation 
 of a great and valuable principle of law and justice. No 
 case can be produced wherein it has been adjudged, that 
 a witness is first to say what he does kno.w, and that the 
 court is then to judge of its tendency, whether it will 
 endanger him or not. A man is not bound to produce 
 evidence against himself. I. Bl. Rep. 37. 
 
 Mr. Martin. The answer must be, " I do or I do not." 
 Mr. Willie has been considered a secretary of Colonel 
 Burr. If he confess that he knew the contents of this 
 letter, and they should prove to be treasonable, his 
 continuing in the service of Colonel Burr, will make him 
 a principal in the treason. He may have written to 
 others ; the post-offices have been put in requisition.
 
 THE CYPHERED LETTER. 2 > 9 
 
 Mr. Hay. Insinuations ought not to be thrown out 
 against the government without evidence to support them. 
 I am willing to communicate all that I know about that 
 letter. It was transmitted by General Wilkinson, through 
 the hands of Mr. Minnikin, who accompanied Mr. Willie 
 to this place, and it was attached to an affidavit obtained 
 from Judge Toulmin. I know not whether Willie ever 
 saw it or not. 
 
 Mr. Martin. I do not charge General Wilkinson with 
 plundering this letter, but we will hereafter prove, that 
 they have laid violent hands upon the post-office of New 
 Orleans. They have a paper and know not how they 
 have come by it. The post-office mark on it, is a pre- 
 sumptive proof of the violation of the post-office. Never 
 will I mince the matter. They would not get Willie to 
 decypher this letter if he could ; but other witnesses may 
 be used to decypher it, and it may then be evidence 
 against him, if he acknowledge now that he understands 
 its contents. Do gentlemen produce this letter to crim- 
 inate Doctor Bollman ? Let him decypher this letter. 
 If other letters are hereafter found in the same cypher, 
 his acknowledgment, that he can decypher the one, will 
 make him equally responsible for the rest. By this con- 
 trivance, he and Doctor Bollman may be made the in- 
 struments of their own crimination : the one being used 
 against the other. If a witness refuse to be sworn, he is 
 liable to be committed for a contempt of the court, Sal- 
 ke!d, 270 ; but there is no instance to be found where the 
 court has committed a witness for a contempt, for refusing 
 to answer a question, which he supposed would crimi- 
 nate himself. Mac Nally, 637 ; 2 State Trials, 124. 
 
 Mr. Botts. It is important to know how the letter 
 was obtained. I wish Minnikin to be examined. 
 
 Chief Justice. That is foreign to the present discus- 
 sion. 
 
 Mr. Mac Rae. The question proposed to the witness 
 is," Do you understand the contents of this letter ? " But, 
 before I proceed to demand the answer, I hope we may 
 congratulate ourselves on the situation in which we are 
 placed. The proceedings clearly evince, that it is not 
 our wish to withhold from the accused any, the slightest 
 means of defending himself, and yet the present is a
 
 220 TRIAL OF AARON BURR. 
 
 spectacle very rarely exhibited in a court of justic /he 
 counsel of the accused aiding the counsel of the witness 
 to prevent him from being examined ! I am glad, sir, 
 that counsel is employed for the witnesses, if thereby the 
 accused can be benefited. I am pleased that they have 
 united in his defense. But I have endeavored, in vain, to 
 discover whether anything which they have advanced, 
 bears upon the point before the court. These gentlemen 
 have widely wandered from it, and I feel a deep regret 
 that they will not confine themselves to the point of law. 
 Henceforth, I hope that they will do so, and abandon this 
 species of warfare, and address the judgment of the court, 
 instead of the prejudices of the multitude around. 
 
 Great part of Mr. Bott's remarks are foreign to the 
 point. Instead of reasoning on the subject and referring 
 to authors in support of his assertions, he has made some 
 strange conjectures, as to what may happen hereafter to 
 Willie, even if the letter were innocent. That his 
 acknowledging that he had copied it, though its con- 
 tents be innocent, may expose him, at some future day, 
 to persecution in some distant territory ; or perhaps 
 doom him to be thrown into confinement into the hold 
 of a vessel. Is not this mere declamation ? can it be 
 called argument ? Does it bear at all upon the question ? 
 His remarks were certainly improper ; and perhaps it 
 may be improper to answer them. His observations 
 about a distant territory are irrelevant, as are also all he 
 has said about the manner of obtaining the letter. 
 What connection has this subject with Louisiana or the 
 manner of obtaining this letter ? 
 
 As to the robbing of the mail, it is all conjecture. 
 Why has he not specified the name of the post-office, 
 and the name of the officer ? A custom prevails in those 
 post-offices to affix upon a letter the name of the office 
 printed or written. This impression would have been 
 sufficient to have led to the discovery ; but there is none 
 such on the back of that letter. The non-observance of 
 the custom in this case repels their insinuations. As to 
 the figures " 25," they occur very frequently on the face 
 of the letter. On the back of it, they may be a cyphered 
 direction or caution to the person for whom it was in- 
 tended ; and this conjecture is as good as theirs.
 
 THE CYPHERED LETTER. 221 
 
 Mr. Botts says, that this letter must be fraught with 
 treason, or it is not ; and that if it be not, it is perfectly 
 irrelevant to the present case. But ought not the fact 
 to be ascertained ? Is it not material to the present 
 inquiry that it should ? But, says' Mr. Botts, " if the 
 letter be material, and Willie confess that he copied it, 
 he will fix a crime on himself." That is not granted, sir. 
 Willie must also understand it. Even if it be treason- 
 ble, it was no offense to copy it, unless he understod its 
 contents. He can neither be accused nor punished for it. 
 All that could be said against him would be, that he had 
 ignorantly done an act, injurious to the public, with an 
 intention to benefit an individual. 
 
 The authority in Gilbert, 134, cited by Mr. Botts, 
 would apply if the question were afaout the credibility 
 of a witness. But that is not the case, and the authority 
 s inapplicable. 
 
 They have also quoted a case from 9 State Trials, where 
 a popish priest was permitted to elude a question with- 
 out answering it. According to the English laws, the 
 witness, if he confessed that he was a Roman Catholic, 
 was liable to certain disabilities. There it was known to 
 the court, as well as to the witness, that there was such 
 a law, and that by such a confession he would subject 
 himself to its operation. The court, therefore, did not 
 press him for an answer. But here it is contended that 
 the witness is alone the judge of the law and the fact 
 whether he ought to answer or not : for both both the 
 law and the fact are included in the privilege, which they 
 claim for the witness. In the cases cited by them, the 
 court did understand the subject, and saw the danger of 
 the witness; but here the subject is not understood by 
 the court ; and the right of judging, whether the witness 
 be in danger or not, is denied them. Mr. Martin cited 
 authority in support of this principle ; that courts had 
 punished a witness for a contempt in not taking the oath, 
 but never where he refused to answer in cases in which 
 he might criminate himself. A court has always a right 
 to understand the ground on which a witness refuses to 
 answer, and every man is liable to give testimony, unless 
 he come within certain exceptions ; and in those cases, 
 he must show some law or authority to justify his refusal
 
 222 TRIAL OF AARON BURR. 
 
 to answer. Does the court possess the power of com- 
 pelling a man to make oath that he will give evidence, 
 and yet not possess that of making him comply with it? 
 Surely this would be preposterous. 
 
 In the case of the'votr dire, it is not sufficient to ask a 
 witness, if he be not interested. If he say that he is not 
 interested in the event of the cause, inquiries may be 
 made into the ground of his opinion ; and if it can be 
 proved by other witnesses that he is interested, he is 
 excluded. It, is never referred to the witness only. 
 Every day's practice proves this to be the law. 
 
 The court has a right to understand the grounds oi 
 the privilege claimed by the witness. Suppose an at- 
 torney were called on to give testimony, and he should 
 say that his knowledge of facts had been derived from 
 confidential communications from his client : he would 
 not be the only judge in that case. The court would 
 inquire whether they were made to him in his profess- 
 ional or private character? The supreme court have so 
 decided. Cranche's Reports, 137, and i Mac Nally, 255, 
 substantially support this doctrine. The priest, in the 
 case referred to, was compelled to state the ground of 
 his refusing to answer. 
 
 The witness objects, that by answering he may crimi- 
 nate himself; but the court is to judge of the tendency 
 of the question. It must appear that he may criminate 
 himself. The question is, Do you understand that part of 
 the letter that is in cypher ? Whether he answer " yes," or 
 " no," he can not criminate himself. If he say "Yes," it 
 can not criminate him unless it be coupled with other 
 questions, and his answers to them ; and unless also he 
 wrote it. He may know the key to the cypher very 
 innocently. It may have been imparted to him for the 
 purpose of carrying on an innocent correspondence. 
 He may know the cypher without having any connec- 
 tion with its contents ; or he may have acquired a knowl- 
 edge of the cypher long after the letter was written. I 
 wish gentlemen to show how he can criminate himself, 
 by answering this question. They have not shown that 
 it will, or that it may criminate him ; and if the answer 
 will not criminate him, the United States are entitled to 
 his evidence. If he answer " No ;" if he be unacquainted
 
 THE CYPHERED LETTER. 223 
 
 with the cypher he is innocent, and can not be crimi- 
 nated. 
 
 As to the law, there is no difference in opinion. We 
 all agree in opinion, that a witness can not be made to 
 criminate himself. The only dispute is about the effect 
 of the answer. I hope, therefore, that the court will 
 compel him to answer the question, unless it be shown 
 that he will or may criminate himself. I am sorry that 
 so much time has been consumed upon so plain a ques- 
 tion. 
 
 Mr. Hay. I did not wish to say anything on this 
 frivolous question, when a subject so important ought to 
 occupy our time. The effect of the paper is dreaded, for 
 .gentlemen discover unexampled solicitude to keep it out 
 of view. I know not its contents. They have repeat- 
 edly asserted that Mr. Burr was persecuted and innocent. 
 If this be true, why do they shrink from the evidence. In- 
 tegrity walks forth with a bold, and erect front before the 
 world. A man who knows his own innocence, despises 
 the powerless efforts of his enemies. They have con- 
 sumed a great deal of time unnecessarily; and yet charge 
 us with wasting it. I have taken up about the fortieth 
 part of the time occupied by the gentleman who spoke first. 
 
 I come now to the question. There are, in fact, two 
 questions which we wish to put to the witness. 1st, 
 Do you understand the cypher of that paper? 2d, Did 
 the paper come from Mr. Burr? was it written by him, 
 or by his directions ? The last question ought to have 
 been first stated. The witness does not say why the 
 answer to the question will have a tendency to criminate 
 him. The court can not judge, whether his motive may 
 not be an unwillingness to give testimony against a per- 
 son to whom he is attached. He ought to answer ; the 
 court can not decide without information from him, 
 showing in what manner it may tend to his crimination. 
 The meaning of the argument offered in defense of his 
 silence, is, that he is connected with Mr. Burr, and as 
 deep in the treason as he is. Will his answering the 
 question, " Whether he understand that cypher? " sub- 
 ject him to a prosecution? It certainly will not. His 
 knowledge of the cypher is not inconsistent with perfect 
 innocence. They say that the question ought to be,
 
 224 TRIAL OF AARON BURR. 
 
 Has it a tendency to criminate him? The wit of man can 
 not tell whether any tendency to criminate him can result 
 from answering this question. The great rule of law, of 
 which the cases cited are illustrations, is this: that a wit- 
 ness is not to give evidence to accuse himself of a crime 
 (l Mac Nally, 256; Hawk, 609). I venture to affirm that 
 the gentlemen can not produce a case, that goes as far 
 as to say that a witness is not to answer what may tend 
 to criminate himself. But this answer will not even tend 
 to criminate him, nor will it tend to calumniate him. 
 The doctrine of Mr. Williams, about a pardoned man, 
 does not apply. I contend that a man is bound to an- 
 swer every question relating to the point in issue, unless 
 it subject him to a prosecution. But as to collateral 
 points, he is not bound merely to degrade or calumniate 
 himself. Every case mentioned has been decided on 
 these principles. I Mac Nally, 258: The authorities 
 there show, that a witness must make answer, unless it 
 directly criminate him ; or, what is the same thing, sub- 
 ject him to punishment. The objection now made by 
 the gentlemen was there expressly overruled. In the 
 case of the King v. Edwards, the question put was ob- 
 jected to, as tending to criminate himself. But the ob- 
 jection was overruled by the court ; saying, "there was 
 no impropriety in the question ; as the answer would not 
 subject him to any punishment." This, therefore, is a 
 decisive authority in our favor, being precisely the same 
 point. The doctrine cited from the State Trials, was 
 overruled by the cases in I Mac Nally, 259. I will not 
 appeal to the candor, but to the ingenuity of gentlemen, 
 to show how the answer to this question can criminate 
 the witness. The question is, " Do you know that cy- 
 pher?" relating to the present time. If the letter con- 
 tained guilt, and he knew it from the beginning, it might 
 
 o * 00*0 
 
 implicate him ; but we do not ask how long he has known 
 it. 
 
 The other question which we propose, is not whether 
 he copied or wrote the letter, but whether it were written 
 by Burr or by his directions. This he can say, without 
 saying who wrote it, if Mr. Burr did not. 
 
 But it is said, that " the court is not to judge " whether 
 he ought to answer, or whether it tend to criminate him
 
 THE CYPHERED LETTER. 225 
 
 or not. This is one of the wonderful positions in the 
 wonderful cases resorted to by gentlemen. Yesterday 
 they said that it was a clear case, and that they only 
 wanted time to look for authorities. And what have 
 they found ? Nothing to support their position, though 
 I have produced an authority, directly in point, against 
 it. I ask if this doctrine be not a prostration of the rules 
 uniformly prevailing in all courts of justice? The court 
 ought to judge every point of law arising collaterally or 
 incidentally in a cause. The witness, from caprice or 
 corrupt motives, may refuse to answer the question. Is 
 it not strange that the court should politely say to a 
 witness, " You have been sworn to tell the whole truth, 
 but you may be silent if you think proper," without 
 assigning any reason for it ? I expected something like 
 authorities to prove that the witness had a discretion to 
 answer or not. Douglas, 593, stating that a man was not 
 bound to answer whether he were a Roman Catholic or 
 not, might as well have been introduced to prove any- 
 thing else. The answer there, if in the affirmative, would 
 subject immediately to disabilities; but here it can not. 
 
 As to Goosely's case, I know nothing of it. Judge 
 Griffin and Mr. Williams differ in their statements con- 
 cerning it; but if that case be contrary to the uniform 
 current of authorities, it is not binding. In Cooper's 
 case the decision is contrary to law, and has been disre- 
 garded since. 
 
 The Chief Justice. The decision in Cooper's case was 
 only that the accused had not a right to obtain papers 
 from the public offices for certain purposes. 
 
 Mr. Hay. That decision, that papers shall not be 
 obtained from the public offices, does not apply to the 
 present case. 
 
 [Here Goosely's case was produced, and part of it read 
 from the manuscript report ot Mr. Daniel Call (a gentle- 
 man well known as an able lawyer and correct reporter), 
 and which case, in substance, is as follows : Goosely was 
 indicted for felony, under the i6th and i/th sections of 
 the act of Congress establishing the post-offices and post- 
 roads within the United States, for robbing the mail of 
 some bank notes. On his trial, " the attorney for the 
 United States called Reynolds, an accomplice
 
 226 TRIAL OF AARON BURR. 
 
 with the person, against whom an indictment for the 
 offence had been preferred, but which had been found 
 ' not a true bill' by the jury. Randolph and Wickham, 
 counsel for the prisoner, objected to his testimony on 
 the principle that the witness was not bound to give any 
 evidence which might implicate himself. The attorney 
 admitted the general principle, but denied its application, 
 and insisted that he might give evidence. The court de- 
 termined 'that he was a competent witness; ' but Judge 
 Iredell observed (and Judge Griffin concurred), that 'he 
 could not be compelled to answer a question leading to 
 an implication of himself ; and that it was very probable 
 that the jury would pay but little attention to a fact 
 which they were satisfied was but partially related.' He 
 was asked whether he knew of any bank notes being 
 taken out of the mail by the prisoner. Pie answered, 
 none, but what he was jointly concerned in. The court 
 said that he was not bound to tell anything that might 
 ' tend to criminate himself.' The jury returned a verdict 
 for the prisoner of not guilty, and he was discharged."] 
 
 Gentlemen prove a thing which is not denied, and say 
 that they have gained a victory. 4 State Trials, 414, 
 seems to countenance the doctrine on the other side. In 
 i Mac Nally, 258, the court perhaps knew the situation 
 of the man, and that it would criminate him ; but it is 
 here decided that where the court knows not the situa- 
 tion of the witness, or whether his answer would subject 
 him to punishment, they will leave it to the witness. 
 
 Mr. Williams says that the answer itself must be given 
 to enable the court to judge whether it will criminate 
 him. But certainly the court may inquire into the cir- 
 cumstances, to discover why he will be endangered. A 
 man who says that he is interested, even if he be not, is 
 disqualified ; because he is under a bias if he think so, 
 whether the fact be that he is or is not interested. In 
 that case, it is an objection to the testimony of a witness 
 who is offered. This, on the contrary, is a question of 
 exemption of privilege, claimed by the witness to excuse 
 him from giving testimony ; a duty incumbent on all, 
 except interested persons. In the case of Marbury v. 
 Madison, it was decided that "a witness may state his 
 objections," and the witness did state his objections,
 
 THE CYPHERED^ LETTER. 227 
 
 and they were sustained ; but here the witness refuses to 
 state his objections. He is silent, and refuses to explain. 
 
 Mr. Botts says that the letter is irrelevant. To this I 
 answer, that this can only be ascertained by discovering 
 its meaning;. The gentleman declaim about plundering 
 the post-offices. We deny it ; let them prove it. I could 
 talk of a detestable plot to plunder a city and rob a bank, 
 as subservient to the execution of projects of unprinci- 
 pled ambition; but I will not do it till a future day. 
 They scatter ambiguous words with a view to excite 
 public suspicion and discontent. They insinuate, that 
 this depredation has not only been committed, but 
 that it was countenanced by General Wilkinson and 
 the President of the United States. But it ought to be 
 proved before they allege it in a court of justice. J3ut 
 suppose the letter had been in the post office, and it 
 had been voluntarily delivered by the post-master, on 
 discovering that it contained a treasonable plot, to the 
 commander-in-chief, in order to prevent the treason ; 
 would this have been criminal or improper? It has 
 always been the practice to intercept letters to prevent 
 treason. It is founded on necessity, and dictated by 
 the laws of self-preservation. As to Mr. Martin's 
 position, that a witness may be committed for refusing 
 to be sworn, but not tor refusing to answer 
 
 Chief Justice. Mr. Martin's position was, that a 
 witness might be committed for refusing to be sworn; 
 but not for refusing to answer, when he thinks the 
 answer would criminate him. 
 
 Mr. Hay. If that be the law, it does not justify the 
 refusal of the witness in this case to answer. The 
 cases are not alike. No authority would be found, 
 after their most industrious researches; because no 
 case could be found similar to this case. I trust, there- 
 fore, that the witness will not be permitted to judge for 
 himself; but that he must answer our question, as it 
 can not be shown that it will endanger him. 
 
 Mr. Wirt. Very little is left for me to say, after the 
 able arguments of my respectable associates ; but, if I 
 can not add to their arguments, I will try not to ob- 
 scure the subject. We ought, indeed, to render thanks 
 to the gentlemen for keeping us from gaping, by the
 
 223 TRIAL OF AARON BURR. 
 
 multiplicity of their motions and interludes. They 
 have made so many points as to form a chevaux defrize 
 in the stream of the prosecution, and to place an insur- 
 mountable bar between the prisoner and justice. This 
 is the true mode to get the prisoner off at all events ; 
 but not the way to get him off with honor. If they 
 wish to remote the blot in his escutcheon, they must 
 submit to a candid examination of all the testimony ; 
 they must cease their constant efforts to stifle the evi- 
 dence that operates against them. 
 
 The gentlemen have assumed what is not proved, 
 that Willie is an accomplice. But all their arguments 
 and inferences founded on this assumption must be un- 
 availing. We do not, and will not admit, that he is an 
 accomplice till it be proved : but, if an accomplice may 
 be a witness, d fortiori a person who is not an accom- 
 plice may certainly be a witness ; and that an accom- 
 plice may be a witness, can be clearly shown by many 
 respectable authorities. I refer the court to i MacNally, 
 192, 193, 194; 2 Hawk, 608; Gilb. 122. Why should 
 the law make an accomplice a witness, unless the court 
 had a power to interrrogate him. This man cannot 
 shelter himself from giving testimony, but by showing 
 some legal privilege or exemption, i MacNally, 247, 
 253, 254, 255. All these authorities are strong and ap- 
 plicable; but the last is directly in point. It is there 
 stated as clear law, that the "claim of exemption from 
 giving evidence is scrutinized with a jealous eye; and the 
 person relying upon it, must establish his right, by show- 
 ing a positive law or express authority." There it was 
 determined, that it was no cause of exemption that the 
 knowledge "the witness had of the matter, arose from 
 a confidential communication made to him in the exercise 
 of his clerical functions : and which the principles of his 
 religion forbade him to disclose; " and that every man is 
 bound to discover what he knows of the matter in " issue 
 unless he be specially exempted and protected by law. 1 ' 
 They say that the witness is exempted by a rule of law. 
 I will examine what that rule is. It is laid down in Hawk- 
 ins, 609, Book 2, chap. 46, 20, that ' it is a general rule 
 that a witness shall not be asked any question, the an- 
 swering of which might oblige him to accuse himself of
 
 THE CYPHERED LETTER. 229 
 
 a crime." This, sir, is a narrow rule, which they have 
 blown up into an immense magnitude. If the answer 
 of the witness include guilt, he is not bound to speak. 
 Unless it oblige him to accuse himself of a crime, ha 
 must make answer to any question propounded to him ; 
 but what are the limits to the rule they contend tor. 
 What are the limits of u a tendency to criminate?" 
 Any question may indirectly and remotely have a tend- 
 ency to criminate or to produce any other effect. The 
 rule they insist on, is almighty and boundless: any 
 witness may thereby screen himself from giving evi- 
 dence against a person to whom he is attached. Like the 
 Cretan labyrinth, it can never be traced nor pursued, 
 and if the witness once get into it, you never can ex- 
 tricate him from it. Does the witness know that the 
 answer he is to make to this question has a tendency to 
 subject him to legal persecution or punishment? I con- 
 tend that the precise question put, must contain the 
 criminating matter; and that therefore a question, to 
 which an answer must criminate, must be put before the 
 court can arrest inquiry. If we put questions to which 
 answers may be made without such an effect, the witness 
 must answer them. This question requires no such an- 
 swer. If we afterwards put a question to which the 
 answer must subject to a prosecution, it will be then time 
 enough to arrest us. If the letter be treasonable, and he 
 were to answer "Yes" to the question,whether he knows 
 the cypher; and if he knew it to be treasonable from the 
 first, he might be endangered ; but many links are want- 
 ing to make a chain to bind Willie. Accomplices may be 
 witnesses,but they say they must not be compelled to give 
 evidence that may tend to criminate them. Tendency 
 unlimited, brings the rule to nothing. But I will meet 
 tnem plainly. If we ask the witness if he be guilty of 
 treason, and he answer u Yes," his confession cannot be 
 used against him. The " confession in open court," men- 
 tioned in the Constitution of the United States, applies 
 to confessions on arraignment, and to no other. It will 
 puzzle the learning of Mr. Martin to show a case of a wit- >. 
 ness being exempted from answering questions apply- 
 ing to the point in issue. The exemption in the cases 
 they rely on, extends only to collateral points. Cases are
 
 230 TRIAL OF AARON BURR. 
 
 frequent in the books, where witnesses are examined to 
 points to defame or convict themselves, where they are 
 questioned as to the issue. The cases in Mac Nally, are 
 always of questions put not touching the issue. In the 
 trial of Reading, 2 State Trials, p. 802, 806, 822, the 
 question was to a collateral point. It was so in the Earl 
 of Shaftesbury's case, in 3 State Trials, 418 ; and so it is 
 in all the cases. They are not permitted to wander out 
 of the track to defame witnesses. A confession made by a 
 witness on oath does not bind him because it is not vol- 
 untary. 2 State Trials 123'; Christopher Love's case. 
 Jackson's examination in that case, exactly resembles 
 this of Willie. It proves, too, that he was committed 
 not merely for refusing to swear, but also for refusing to 
 tell the wnole truth. If Mr. Martin say it was merely 
 for refusing to take the form of the oath, what benefit 
 would his taking the oath produce, if he were not to 
 answer the questions put to him ? That was only the 
 case of an accomplice about to be interrogated as to the 
 point in issue, and a difficulty was raised. This is a very 
 simple point; and the only way to authenticate this let- 
 ter is by the evidence of this witness. The prisoner is a 
 great lawyer. Is it supposed he did not guard his foot- 
 steps? Would he call two witnesses to the letter? We 
 want it not to go to the grand jury, until we prove it 
 his offspring, by this witness, who would not tell one 
 truth against him, if he could help it. They put their 
 hands on his mouth to prevent him from telling anything 
 he knows; and he is so eager to secure the safety of Mr. 
 Burr, that he employs counsel himself, to prevent him 
 from being obliged to reveal what he knows against him. 
 1 trust, therefore, that this witness will be compelled to 
 answer our questions. 
 
 Mr. Martin proposed to go on with the argument to- 
 morrow. 
 
 Mr. Ray wished it to go on this evening ; that the 
 public convenience required that the evidence should be 
 introduced at this time to the grand jury. 
 
 Mr. Martin. I will endeavor to answer first, the gen- 
 tleman who spoke last. He says that we have made 
 more points than ever were made before; to which I 
 answer, that no prosecution was ever conducted like this
 
 THE CYPHERED LETTER. 231 
 
 He says that we ought to court the fullest investigation. 
 What ! without the means of repelling their unjust at- 
 tacks, and the misrepresentations of their witnesses. 
 The privilege is not Mr. Burr's, but that of the witness. 
 As to accomplices being witnesses, they may be, and 
 sometimes are so voluntarily, but never otherwise. As 
 to the witness employ ing counsel, he is right to do it to 
 protect himself. His own character and life may be 
 endangered, and the counsel for the defendant are not 
 wrong in assisting to protect the witness. A great law- 
 yer in the case of Callender did the same ; and there is 
 no impropriety in either case ; both are proper. 
 
 Mr. Wirt said that he would not follow the same track 
 which we had travelled. He has indeed followed differ- 
 ent principles. In all the cases which he has cited the 
 accomplice came forward voluntarily ; but he could not 
 have been compelled to give testimony ; there the objec- 
 tion went to the credibility, not to the competency of 
 the witnesses. The accomplice having confessed, can 
 not afterwards refuse to answer. H? states also, that an 
 accomplice being a competent witness by law, can not 
 be privileged from giving testimony, without a special 
 exemption. Now all accomplices are persons expressly 
 excepted by the law, unless they waive their privilege, 
 arid voluntarily come forward and swear. 
 
 Mr. Wirt. I deny that Mr. Martin stated my argu- 
 ment correctly. It is not a confession that makes an 
 accomplice a witness. Confession does, not prevent his 
 being a witness ; but it is not necessary to make him 
 one. The doctrine is that of approvers. 
 
 Mr. Martin. All the cases are, where the accom- 
 plice comes forward voluntarily. 
 
 Mr. Wirt. Porter's examination (in State Trials) 
 was a compulsory examination of an accomplice. 
 
 Mr. Martin. That case is not authority. It is an 
 arbitrary doctrine. They have two strings to their bow, 
 or rather two stools to sit on the treason and misde- 
 meanor ; that they may repose on the one, should the 
 other fail them. But we trust that both will fail them. 
 The case of compulsory examination applies to treason 
 only. Lord Audley's was a case of rape, not of treason. 
 I know not why Christopher Love's case was intro-
 
 232 TRIAL OF AARON BURR. 
 
 duced, unless it were to show the coarse language 
 used in those days by prosecutors and judges. There is 
 nothing else remarkable in it. A m:m -refused to swear, 
 and he was committed for it. That a witness may be 
 committed for not swearing, but not for not answering 
 questions, is said to be my argument, and very uncan- 
 did deductions are made from what is called my posi- 
 tion. I never was so weak as to think or to say, that a 
 witness was obliged to be sworn ; and yet that he 
 might withhold testimony, and be silent at his whim and 
 pleasure. No, sir; my position was only, that a witness, 
 having a legal reason for refusing to answer, was never 
 committed : and so far is it from being dependent on 
 his whim, th.it he must swear to the existence of this 
 legal reason; and as much reliance is to be put on his 
 oath, on this point, as on any other. 
 
 I ask the gentlemen to produce any authority to 
 show, that a witness can be compelled to answer, where 
 he thinks it can criminate him ; but no such authority 
 exists. As it was now late, Mr. Martin said that he 
 could not finish his argument to-day, but hoped that 
 the court would adjourn ; and that he should be per- 
 mitted to add some observations to-morrow. 
 
 WEDNESDAY, June i/th, 1807. 
 
 Mr. Hay stated to the court, that many remarks had 
 been made yesterday, respecting the letter addressed 
 to Wmburn (in cypher) ; that it had been insinuated, 
 that it had been taken improperly if not felonously from 
 the post office; that this was evidently done to affect 
 the character of General Wilkinson, who having been in- 
 formed of it wrote him the following note on the subject: 
 
 RICHMOND, June 171/1, 1807. 
 
 SIR, 
 
 The letter addressed to Winburn was delivered to me 
 by Cnarles Patton, of the house or' " Meeker, William- 
 son & Patton," New Orleans ; and he informed me, 
 was transmitted in the enclosed envelope. Respectfully, 
 I am, sir, your obedient servant, 
 
 JAMES WILKINSON. 
 
 George Hay, esquire.
 
 THE CYPHERED LETTER. 233 
 
 Mr, Martin requested to know who opened the letter, 
 or who first broke the seal? 
 
 The court said that this was a question which was not 
 before it. 
 
 Mi'. Bolts said that at a proper time they would bring 
 it before the court, as a substantive and independent 
 injury. 
 
 Mr. Martin said, that General Wilkinson was not a 
 proper witness to remove suspicions from himself. He 
 then resumed the argument which he left unfinished 
 yesterday. 
 
 The great question is not, whether the witness ought 
 to answer or not? But whether he is not the sole judge 
 whether his answer to the question will criminate him or 
 not? I contend that he is ; and it' it were otherwise, the 
 provision in his favor would be nugatory. He ought to 
 answer no question, if it tend or lead to criminate him. 
 
 The first gentleman who spoke for the prosecution, on 
 this point, manifested candor. He advised us not to 
 wander from the question. The advice was good ; I 
 wish they had followed their own advice. If good advice 
 had been followed, the post-offices would not have been 
 violated. Was, their advice given as a caution by these 
 kind, indulgent friends? Or was it to excite prejudices 
 against Mr. Burr? Many and strong attempts have 
 been made to prevent a fair trial. The newspapers, and 
 party-writers, are emploved to cry and write him down. 
 His counsel are denounced for daring to defend him. 
 The passions of the grand jury are endeavored to be 
 excited against him, and the very judges denounced if 
 they do not decide against him, at all events ! The laws 
 of the country, on the contrary, presume every- man in- 
 nocent till he be convicted. How. then, can such pro- 
 ceedings be justified? On the trial before ttie petit 
 jury, I admit that they may declare as counsel that Burr 
 is guilty ; but at this stage of the proceedings, every ob- 
 servation should be avoided that may create or excite 
 prejudices either on one side or the other. I hope that 
 the zeal of gentlemen will be moderated, and that they 
 will remember-the benignity of the law, which declares, 
 that it is better that ten guilty men should escape unpun- 
 ished, than that one innocent man should be punished.
 
 234 TRIAL OF AARON BURR. 
 
 Gentleman say, that they are about establishing 1 the 
 relevancy of the paper. They do not know its contents ; 
 yet they take it for granted, that it is material, because 
 we oppose it. Heretofore it has been the invariable 
 practice to know, in such cases, and to produce evi- 
 dence both of the contents and the relevancy of such 
 exhibits. Suppose the letter were written in the French 
 language, they must procure a translator before they 
 could read it as testimony. Yet they can not compel 
 anybody to translate it against his will. A person ought 
 to be specially sworn as an interpreter, to translate 
 truly and faithfully. If they could not translate it them- 
 selves, they ought to have procured some person to do 
 it ; for the court is not bound to find a translator. 
 
 The gentlemen say that there is this distinction : that 
 a witness is not compelled to answer where the point 
 to which he is questioned is not in issue, but that he 
 must answer where it is in issue. No such distinction 
 exists. "No evidence ought to be admitted to any 
 point, but that on which the issue is joined." This is 
 manifest from MacNally, p. 2, and is the first rule of 
 evidence therein stated. The court is to judge whether 
 the evidence be pertinent to the issue or not. 
 
 Mr. Hay. That is what we want. 
 
 Mr. Martin. I am not arguing about that ; but de- 
 monstrating that no such distinction exists. I refer 
 the court to Hargrave's Index to the State Trials. ;> A 
 witness is not compelled to answer, where it tends to 
 criminate him, nor where it does not relate to the 
 issue.' 
 
 Mr. Hay and Mr. Wirt wished to see the pages re- 
 ferred to. 
 
 Mr. Martin. They are cases in the Second State 
 Trials, and already commented upon. I cite this au- 
 thority only to show Hargrave's opinion. He certainly 
 is of opinion that if a witness imagines a question has a 
 tendency to criminate him, or subject him to a Denalty, 
 he is not bound to answer it. 
 
 Mr. Martin then read Hoffman's argument in the trial 
 oi Smith, to show the question put to Ogden, concern- 
 ing the u Leander's " destination. He also quoted the 
 question put to Mr. Ogden relative to his first acquaint-
 
 THE CYPHERED LETTER. 235 
 
 ance with Miranda ; when the court appeared to be of 
 opinion, and admitted the principle, that Mr. Ogden 
 was not bound to answer any question which might 
 criminate himself, but yet declared that he should 
 answer these questions put to him, pp. 95, 96, 98 ; and 
 added, that Talmadge's opinion was of no consequence, 
 but which was not admitted by the counsel on the other 
 side. 
 
 Mr. Hay. It is irregular to read the arguments of 
 counsel as authority. 
 
 Chief Justice. It is regular to read them only as ar- 
 guments. 
 
 Mr. Hay requested Mr. Martin to read the argu- 
 ments in the same case, on the part of the prosecution. 
 
 Mr. Martin, after some conversation on this point, 
 read the words of the prosecutor, in the same case, and 
 the argument of Golden, for the defendant, and a part 
 of the arguments of Mr. Edwards, one of the counsel 
 in the same case. There, it was evident that the court 
 was wrong. There was a question refused by Ogden 
 to be answered. From the arguments and observations 
 of counsel I infer that they waived their right to enforce 
 the law against Ogden. They declined at that time 
 calling on the court to enforce its decision, in respect to 
 Ogden's answering, but said that they did not waive 
 the right to call upon him thereafter ; but they never 
 exercised it. From which it may be reasonably inferred 
 that they had not the fullest confidence in the opinion 
 of the court, but thought it erroneous or doubtful. 
 
 As to the case of the United States against Goosely, 
 the counsel merely objected from memory : Mr. Wirt 
 only read a part of it from Call's manuscript report of 
 it, p. 140. But why did not the gentleman read the 
 whole of that case? If he had read another part of it, 
 it would have explained the law much more fully, and 
 proved that a witness could not be compelled to an- 
 swer a question which might tend to implicate or crim- 
 inate himself. [Here the case of the United States vs. 
 Goosely was fully read. Vide ante.'] 
 
 Here, then, is a decisive authority that my position is 
 correct, as far as the opinion of one very respectable 
 judge (Judge Iredell) goes.
 
 236 TRIAL OF AARON BURR. 
 
 Mr. Martin then read from Mac Nally, p. 258, the 
 authority relied on by the other side, the case of the 
 King against Edwards, accused of grand larceny. One 
 of his bail was asked whether he had net stood in the 
 pillory for perjury ? The question was objected to as 
 tending to criminate him. but overruled. He said that 
 both in England and Maryland, and in every State whose 
 laws he had had occasion to investigate, the law ex- 
 empted in penal cases a witness from criminating him- 
 self. This case, in Mac N.illy, 258, and 4 Term Re- 
 ports, 440, is the only authority relied on as establish- 
 ing the opinion that a witness may be examined as to 
 matters that make him infamous. It means, where a 
 witness has been convicted of an infamous crime, and 
 has suffered the execution of the judgment, that he may 
 be questioned as to that fact. That was a case where 
 bail was called on to justify as to the sufficiency of his 
 property, and the objection was to his credibility, on ac- 
 count of his former infamy, where he had been pun- 
 ished, but could not be subjected to any further penalty. 
 I doubt, however, this authority. Tiie prosecutions for 
 treason in England have been generally conducted with 
 candor and gentleness. These authorities (or rather 
 this authority, as there is but one case), however they 
 may be justified, are more rigid than formerly. They 
 are of modern invention. The mild maxim of the law 
 is, %i nemo tenetur seipsum. accusare."" Even after a man 
 is pardoned for a crime, he is not bound 4 to show his own 
 former turpitude or infamy : 2 State Trials, 822. An 
 additional authority on this point is I Mac Nally, 212, 
 rule the sixth, where it is said, that " whenever the 
 competency of a witness is objected to, on the charge 
 of conviction and judgment on an infamous crime, the 
 party making the charge must produce in the court the 
 record of the judgment, stib pede xiyiUi" which shows 
 that such evidence could not be extorted from the wit- 
 ness himself. There was no instance of such doctrine 
 until the decision of the King v. Edwards, in 4 Term 
 Reports. Until that decision, the rule of law was 
 sacred, that a record was necessary to be produced to 
 prove perjury. The relaxation of the law. with respect 
 to witnesses, is for the benefit of the party, because he
 
 THE CYPHERED LETTER. 237 
 
 does not know what witness will be brought against him. 
 Peake, 88, explains this to be the reason. That a wit- 
 ness may be asked, whether he had been convicted and 
 punished ? 4 Term Reports, 440 ; was a decision in the 
 year 1791, since the revolution. It may ba no authority. 
 We do not know whether our courts of justice will adopt 
 this law-rule or not. It has not been adopted in Mary- 
 land. It has no bearing on the question. The true 
 question is, whether the court has a right to inquire into 
 the circumstances, or whether the witness is the sole 
 judge whether he ought to answer or not? Let us re- 
 vert to the authorities before cited by us. Mac Nally 
 256 : ' ; Hilsley, a Roman Catholic witness, bsing again 
 asked by Titus Oates, by virtue of his oath, whether the 
 house where he lodged, at St. Omers, was not governed 
 by priests and Jesuits ?" That was apparently an inno- 
 cent question ; but as it might be made a link in a chain 
 of testimony that would criminate him, the chief justice 
 said it was not a question fit to be asked, and told the 
 witness that he was not bound by his oath to answer it. 
 Mac Nally has put in that he was a Roman Catholic 
 priest, but nothing appears (in the report of the same 
 case in State Trials) to the court, of his being a priest. 
 The court determined that they were not to go into the 
 circumstances ; 'because, thereby facts criminating the 
 witness, would be disclosed, in order to show how an an- 
 swer to the question would criminate hitn, so that by his 
 answer he would lose the privilege of the law. In the 
 case of the voir dire, if a witness think himself interested, 
 he is excused from being sworn. We admit, that in this 
 case, the witness m.iy be swjra; but insist that he is 
 not to answer questions which he thinks may tend to 
 criminate him. His b;ing interested, ought to exempt 
 him from giving evidence, as in the case of the voir dire. 
 There is no difficulty in going into circumstances on the 
 voir dire. Disclosures can do no injury. But it is not 
 so, it' he think himself interested : he is excused, without 
 any examination into circumstances. Tnis rule is laid 
 down explicitly in Mac N.iily, 140, that " if a witness 
 think himself interested, although in point of fact he is 
 not, he should not be examined as a witness." A for- 
 tiori, in a case where his honor, fame, and life are in
 
 238 TRIAL OF AARON BURR. 
 
 question, if a witness think that his answer will criminate 
 him, he ought not to answer. Does it not aoply with 
 tenfold force ? It would drive men to perjury, if witnesses 
 were compelled to answer in such circumstances ; and 
 Lord Mansfield has always laid it down as a great 
 maxim, that men ought not be exposed to temptation. 
 
 But it is said, that if an attorney be called to give evi- 
 dence, the court ought to decide whether he ought to be 
 excused, and that he is not judge for himself. By anal- 
 ogy, this is in our favor. The privilege belongs not to 
 the attorney, but to the client. The court in such cases 
 only asks him, whether his client made the communica- 
 tion to him as an attorney, or otherwise ? but the court 
 goes no further. So in this case they ought only to ask 
 the witness, if he think his answer will criminate him ? 
 and it is impossible to obtain from him an explanation 
 of the effect of his answ3r, without taking away from 
 him the protection of the law. 
 
 If he gave it secretly to the judges, they might be 
 compelled to reveal it, however confidentially communi- 
 cated. The authority in I Cranch, in the case of Marbury 
 v. Madison, is said to be conclusive in their favor. I thank 
 them for adducing it. It is strongly in our favor, because 
 there the witness was not compelled to give the evidence 
 required. Gentlemen say that they disapprove of part of 
 the authority ; and so I. disapprove of so much of it as 
 declares that the court did not think themselves emoow- 
 ered to issue the mandamus to the Secretary of State. 
 They say that, in that case, the witness was bound to 
 state, and did state his objection to answer. We admit 
 it, and we state our objection. The witness says, " It 
 tends to criminate me," and this objection is sufficient. 
 But gentlemen say that we have produced no authority 
 in support of our argument. I insist that the opinion of 
 Judge Iredell in Goqseley'scase, and the case referred to 
 from 9 State Trials, are conclusive in our favor. The at- 
 torney for the United States has told us, that he expected 
 a great deal would be said by us, but it would not produce 
 conviction on his mind. We hope to convince the court, 
 but we do not expect to produce conviction on the im- 
 penetrable mind of Mr. Hay, which is harder than Ajax's 
 seven-fold shield of bull's hides. I do not think it neces
 
 THE CYPHERED LETTER. 239 
 
 sary to say more, than once more to express our hopes 
 of a favorable decision. 
 
 Mr. Wickham. I shall add a few remarks to what 
 has been already said, and trust that the importance of 
 the subject will be my excuse. I mean, that the prin- 
 ciple is of very great importance ; for as to the paper 
 it is of but little. 
 
 They contend that Mr. Burr is liable for the letters of 
 persons connected with him, however remote the con- 
 nection, and whatever may be the contents of the letters. 
 This principle is too general, and more dangerous than 
 it is comprehensive. We do not admit it, either in its 
 application, or in the extent insisted on. It may be 
 constructed in the most dangerous manner. Blanner- 
 hasset, stated to be connected with him, is said to be 
 imprudent and of a singular turn of thinking. Is Mr. 
 Burr to be responsible for all his actual and verbal eccen- 
 tricities, merely because he was acquainted with him ? 
 I thought before that no man was liable for the acts of 
 another, unless done by his authority or contrivance. 
 Though we do not admit principles contended for by the 
 gentlemen on the other side (which we sincerely believe 
 to be unjust and unfounded) yet as it is not impossible 
 but the court may decide against us, it is our duty to 
 oppose them. This is a governing principle which may 
 run through the whole cause, and will apply to every 
 other similar evidence. We deem it our indispensable 
 duty to oppose the testimony now adduced, to affect 
 Mr. Burr with the acts of others. Was it fair to sound 
 so much alarm and prejudice throughout the whole 
 country, because we stated and availed ourselves ot 
 these legal objections? 1 am not well acquainted with 
 that branch of the science which is called criminal law, 
 and I hope to become less so ; but I had always thought 
 that more protection was necessary and afforded by the 
 law, for the rights of individuals, in criminal than in 
 other cases. If other prosecutors act like these, I am 
 mistaken. I never knew before, declarations made 
 against any person for standing on the rules of law. I 
 never knew before, that a citizen is to be reviled for ad- 
 hering to the laws of his country. The court ought to 
 stop gentlemen who make such an objection.
 
 2 4 o TRIAL OF AARON BURR. 
 
 But it is said that " public prejudice is excited by his 
 mode of defense ! " It' his claiming legal rights excite 
 prejudice, we need not try him, but convict him at once 
 without a trial. The witness ought not to be compelled 
 to answer. The examination of facts leads to the dis- 
 covery which he seeks to avoid. He is on his oath. If 
 he commit p'erjury in answering this interrogatory, he 
 would do so in any other case. The question asked a 
 (Roman Catholic) witness, what business lie had at St. 
 Omers six years before, and what profession he was of, 
 are innocent questions: yet in both instances the wit- 
 ness was excused from answering, because he thought 
 it would criminate him. 
 
 They tell us, " that this objection admits the guilt of 
 Mr. Burr.'' No, it only admits that he is under prose- 
 cution. Does it not endanger this young man of being 
 arraigned, if he own connection with Mr. Burr? Is not 
 an innocent man in danger of conviction by perjury ? 
 The whole strength of the government is exerted against 
 the prisoner. The government would not suborn wit- 
 nesses ; but bad men might think to render an accept- 
 able service by swearing falsely against a party under 
 prosecution. The danger is real, though the party ac- 
 cused is innocent. 
 
 As to Goosely's case, gentlemen suppose me mis- 
 taken. Mr. Win. Marshall's (the clerk of the court) 
 recollection corresponds with mine. Our remembrance 
 is confirmed by Mr. Randolph, who was counsel in the 
 case, and by the judge. Reynolds was an accomplice, 
 and was proved, by the finding of the grand jury on the 
 record, to be an innocent man; and it was determined 
 that he was not bound to give testimony against 
 Goosely, because it might tend to criminate himself. 
 The case is the same here. Willie, the secretary of, is 
 connected, with, Burr. They might send up to the 
 grand jury a bill of indictment against him, if they did 
 not think him too insignificant. The witness, like most 
 other men, may estimate his own importance more 
 highly than others might be disposed to do. A ques- 
 tion, "where were you on such a day? " is an innocent 
 one; yet, as it might tend to criminate him by being 
 connected with other evidence, the court excused a
 
 THE CYPHERED LETTER. 241 
 
 tness from answering it. The question at present be- 
 ore the court is of the same nature, and his answer 
 may be made, with the aid of other testimony, to crim- 
 inate him. 
 
 As to the authority from Mac Nally, that a man is 1 
 bound to answer the question whether he had been pun- 
 ished for a crime or not ? I shall observe that a man's 
 answering whether he had been punished, can not injure 
 his character, because the punishment is public ; if it 
 were private, he would not be compelled to answer. 
 Every man i$ indifferent until sworn. He ought to 
 refuse to be sworn to any inquiry tending or leading to 
 implicate him. The secret is locked up in his own 
 breast ; you can not know that such a secret exists until 
 he be examined, and you have no right to extort it from 
 him to his own injury. I am sorry that so much time is 
 consumed on so plain a question: but as it is important, 
 as it respects the progress of the investigation, I hope 
 we shall be excused. 
 
 Here some conversation ensued between Mr. Wirt and 
 Mr. Martin, respecting the legal authorities referred to 
 by Mr. Wirt, and supposed to have been admitted by 
 Mr. Martin. 
 
 After some further desultory conversation, the chief 
 justice asked whether there were any other question be- 
 fore the court ? 
 
 Mr. Mac Rae requested a decision on Dr. Bollman's 
 case, as he wished to interrogate him about the cyphered 
 letter. 
 
 Mr. Williams was ready to discuss the question. 
 
 Mr. Burr. There will arise some very important 
 questions, affecting the very sources of the jurispru- 
 dence of this country. I have several affidavits to 
 produce to show that improper means have been used 
 to procure witnesses, and thereby contaminate the pub- 
 lic justice ; when these proofs have been duly exhibited, 
 it will be the province of the court to decide, whether 
 they will not arrest the progress of such improper 
 conduct, and prevent the introduction of such evi- 
 dence. 
 
 Mr. Botts. I rise to apprise the opposite counsel, that 
 there are three or four questions of considerable import- 
 i.~ 16
 
 242 TRIAL OP AARON BVRR. 
 
 ance which we shall bring forward as soon as possible. 
 Two or three days ago, I commented upon the plunder 
 of the post-offices ; and I assure the counsel for the 
 prosecution, that I shall probe that subject to the 
 bottom ; as no man can be more anxious than myself 
 that the stigma which this transaction attaches to the 
 inferior or superior officers of the government should 
 be wiped off. As a private citizen, or as counsel for my 
 client, I shall be sincerely pleased with a fit opportunity 
 of retracting the expressions which I have employed. 
 The court will at once perceive the necessity of going 
 into this inquiry at a very early period ; for if the officers 
 of government have hitherto broken open letters from 
 Mr. Burr, they may hereafter resort to the very same 
 expedient ; and by thus obstructing the very medium of 
 communication between Mr. Burr and his witnesses, 
 prevent him from summoning them, and preparing for 
 his defense. One more remark: yesterday I understood 
 Mr. Hay to charge us with having made certain insinua- 
 tions against persons not actually named. He demanded 
 why we had not forborne these charges, until we were 
 prepared to support them ? That remark, sir, struck me 
 with peculiar force. I was of the same opinion, that 
 some proof ought to be produced; I immediately rose 
 and professed my wishes to go into an investigation of 
 the case. But, sir, little did I expect that the gentleman 
 would have proceeded to have justified these crimes. 
 Little did I expect that such felonious transactions 
 should have been blazoned into mighty virtues, or that 
 it would have ever been maintained in this court, that 
 the persons who had failed to plunder the post-offices, 
 would have been guilty of a dereliction of their duty. 
 The offer to go into the evidence operated as magic : he 
 justified what he had before denied. I wish, sir, to ex- 
 plore the post-office laws to see whether they do not 
 contain some provision, prohibiting the introduction of 
 testimony thus illegally obtained. 
 
 Chief Justice. Unless these allegations affected some 
 testimony that was about to be delivered, how can you 
 introduce this subject ? 
 
 Mr. Hay informed the court that Colonel Morgan 
 was at that time before the grand jury, and they had
 
 THE CYPHERED LETTER. 243 
 
 sent for a letter from Aaron Burr to him. Should 
 the letter (holding it in his hand) be sent to the grand 
 jury ? 
 
 Mr. Botts requested to see it. Here, said he, is a 
 small piece of newspaper attached to it, which ought 
 not to accompany it before the grand jury. 
 
 Mr. Burr. I have no objection that any of my let- 
 ters should be sent up ; but I trust, sir, it will be separ- 
 ated from this bit of a newspaper, and this comment 
 which Mr. Morgan has attached to it. 
 
 The letter was handed to the chief justice ; who ob- 
 served, that the only use of the newspaper was to show, 
 that at that time Mr. Burr was at Pittsburg. 
 
 Mr. Hay said it was nothing more than to refresh his 
 memory. 
 
 The chief justice decided that it was right to dissever 
 it from the letter; the newspaper itself was no evi- 
 dence ; but if Colonel Morgan would wish to refresh 
 his memory, there could be no objection. They were 
 accordingly separated by the directions of the court ; 
 one was sent to the grand jury, and the other to Colonel 
 Morgan. 
 
 Mr. Burr. The court has very properly demanded 
 some proof of the revelancy of our proposition. Sir, 
 we are ready to prove the violation of the post-office. 
 We are ready to fasten it on individuals now here, and we 
 are ready to name the post-offices, if the court .require 
 it, which have been thus plundered. When it comes 
 out, that evidence has been thus improperly obtained, we 
 shall say, sir, that it is contaminated by fraud. I will 
 name three peasons who have been guilty of improper 
 conduct, in improperly obtaining letters from the post- 
 office, to be evidence against me. These are, Judge 
 Toulmin, of the Mississippi Territory, Jahn G. Jackson, 
 a member of congress, and General Wilkinson. Two of 
 these persons are within the reach of this court. As 
 well as the improper manner in which they have pro- 
 cured affidavits and witnesses against me, I mention 
 these circumstances for two reasons : First, that the facts 
 may be proved to the satisfaction of the court : and sec- 
 ond, that the court may lay their hands on testimony 
 thus procured.
 
 2 4 4 TRIAL OF AARON BURR. 
 
 Mr. Botts. The circumstance of the post mark 
 proves that the post-office was robbed of that letter ; 
 therefore it is not evidence. 
 
 The chief justice said let the consequences be as they 
 may, this court can not take cognizance of any act which 
 has not been committed within this district. That mark 
 is not necessarily a post mark. The court can only 
 know the fact, in a case to which it applies, except to 
 commit and send for trial. 
 
 Mr. Hay. Let some specific motion be made, and the 
 evidence procured ; and if there have been any crime 
 committed, let the offenders be prosecuted according to 
 law. These gentlemen know the course ; and I most 
 solemnly promise to discharge f the duties of my office, 
 whether they bear against General Wilkinson, or the 
 man at the bar. If the crime have been committed, it 
 is not the province of the court to notice it till after an 
 indictment has been found. 
 
 Mr. Botts. We only wish to prove, and prevent a re- 
 pitition and continuance of this improper mode of pro- 
 ceeding. The proof will affect General Wilkinson. 
 
 Chief Justice. If it did affect General Wilkinson, it 
 could not prevent him from being a witness. 
 
 Some desultory conversation here ensued, when Mr. 
 Burr observed, that he was afraid he was not sufficiently 
 understood, from mingling two distinct propositions to- 
 gether. As to the subject of the post-offices, it might 
 rest for the present ; but as to the improper means em- 
 ployed in obtaining testimony, they were at this moment 
 in actual operation. Some witnesses had been brought 
 here by this practice ; and it was one which ought im- 
 mediately to be checked : he did not particularly level 
 his observations against General Wilkinson. He did not 
 say, that the attorney for the United States ought to 
 indict, or that such a crime if committed out of this dis- 
 trict was cognizable by the court, unless it be going on 
 while the court is in session, or the cause depending ; in 
 those cases improper practices relative to crimes com- 
 mitted out of the limits of this court may be examined, 
 and the persons committing them attached. Such prac- 
 tices have been since I have been recognized here, a id 
 they ought to be punished by attachment.
 
 MOTION FOR AN ATTACHMENT. ^45 
 
 Mr, Wirt I do not yet understand the gentlemen. 
 What is the object of their motion ? 
 
 Mr. Botts. We shall hereafter make it ; we have no 
 other object by the present annunciation, than to give 
 gentlemen a timely notice of our intentions. 
 
 Mr. Burr. We have sufficient evidence on which to 
 found our motion. 
 
 Mr. Hay. What motion ? . 
 
 Mr. Burr. I thought, sir, I had sufficiently explained 
 my intentions. I may either move for a rule, to show 
 cause why an attachment should not issue against Judge 
 Toulmin, John G. Jackson, and General Wilkinson, or 
 what is sometimes, though not so frequently practiced, I 
 may directly move for an attachment itself. 
 
 Mr. Mac Rae. At whose motion. 
 
 Mr. Burr. At the public's. 
 
 Mr. Mac Rae. A pretty proceeding indeed ! that the 
 public prosecution should thus be taken out of the hands 
 of the public prosecutor, and that the accused should 
 supersede the attorney for the United States! 
 
 Mr. Burr. A strange remark indeed ! As if it were 
 not the business of the injured person himself to institute 
 the complaint. 
 
 Mr. Hay. I wish for further explanation. Let the 
 specific charge, on which their motion is founded,, be 
 clearly pointed out and reduced to writing. 
 
 Mr. Burr. The motion will be for an attachment, for 
 the irregular examination of witnesses, practicing on their 
 fears, forcing them to come to this place, and transport- 
 ing them from New Orleans to Norfolk. 
 
 At this moment Mr. Randolph entered the court, and 
 observed, that if he had been present, he would have 
 himself opened this motion ; which was intended to oper- 
 ate immediately upon General Wilkinson, and ultimately 
 upon some other persons. Mr. Randolph here read the 
 motion which he would have submitted to the court. 
 
 Mr. Hay protested against this proceeding ; which was 
 calculated to interrupt the course of the prosecution ; 
 and was levelled at General Wilkinson alone. He asked 
 why these hints? Why these mysterious looks of awe 
 and terror, with which gentlemen come into this court, 
 l.s if they had something to communicate which was too
 
 246 TRIAL OF AARON BURR. 
 
 horrible to be told? Was Mr. Randolph [when attorney- 
 general, it is presumed he meant] ever interrupted in the 
 midst of one prosecution, by introducing another? Do 
 they wish to intercept General Wilkinson from going to 
 the grand jury ? Mr. Hay claimed from the court, a pri- 
 ority for the business of the United States. Let the 
 present prosecution be concluded ; and gentlemen may 
 then proceed with their investigation into the conduct 
 of General Wilkinson. 
 
 Mr. Randolph. The gentlemen, sir, will understand 
 this subject much better to-morrow. I understood the 
 motion was to be postponed till to-morrow ; but as he 
 asked for some intimation of our designs, I thought proper 
 to accompany it with a few remarks. And, sir, if this 
 affair be really so stupendous, as I conceive it to be, if it 
 be true [Mr. Hay exclaimed that it was not] is it not 
 entitled to the most serious inquiry ? If this subject bear 
 upon the present case, though it may influence the result 
 of the trial, ought it to be suppressed ? Your honor will 
 direct me when to come out ; and I assure your honor, 
 that It is not merely conjecture, but fact. I shall come 
 forward with the affidavit of one of the witnesses to sup- 
 port our motion. 
 
 Mr. Martin. The gentleman is on his heroics. He 
 will protest where? In "The Argus," I suppose. He 
 hopped up like a parched pea, to make his protest 
 against our motion. He insists that we shall postpone 
 it till the trial is over, and the evil is done ! The court 
 and grand jury may be engaged in twenty different 
 prosecutions at the same time. We shall prepare our 
 motion, and make it to-morrow. 
 
 Mr. Hay". I hope the court will decide not to hear it 
 till this business is over. My protest will not have the 
 tenth p^rt of the effect of the attic wit of Mr. Martin. 
 I have a great deal of feeling, but it is not such as can 
 be excited by the elegant comparisons of that gentle- 
 man. Comparisons are always odious. This is expres- 
 sive of contempt, and is viewed as it ought. Mr. Hay 
 then expatiated at some length. He understood the 
 object of this motion was to affect the credibility of Gen- 
 eral Wilkinson's testimony ; and in what way ? He pre- 
 sumed that the court would not notice the pretended
 
 MOTION FOR AN ATTACHMENT. 247 
 
 transactions which had been alluded to, in any other 
 way, than as amounting to a contempt. As to any other 
 offense against the laws of the United States, the true 
 course would be, to proceed in the way of a presentment, 
 or indictment in the regular way. Now, what are the 
 principles of the law of contempt in relation to this sub- 
 ject? General Wilkinson is said to -have taken the de- 
 positions of certain persons in New Orleans, and then to 
 have brought these reluctant witnesses hither by mili- 
 tary force. This is the only ground of the contempt 
 against this court? But how can a contempt be com- 
 mitted ? Either by directly insulting this court or abus- 
 ing its process, or interrupting its justice. Will it be 
 said that General Wilkinson's conduct comes under 
 either of those descriptions ? 
 
 Gentlemen have very often been pleased to put words 
 into our mouths ; and on one occasion, they have made 
 us to say that General Wilkinson is the " pivot of the 
 prosecution." And is it this very pivot which they are 
 now attempting to remove or pare down, by this precipi- 
 tate application ? It is my duty to vindicate him from this 
 unjust charge, which is as immaterial as it is unjust. 
 Are the communications between the court and the 
 grand jury to be thus interrupted ? Is their examina- 
 tion to-be suspended until General Wilkinson has been 
 put upon his trial ? If these suspected transactions do 
 amount to a contempt of this court, ft is not my 
 business officially to notice it. It is of no consequence 
 to them whether they prevail in their motion or 
 not ; their purpose is attained ; their pompous declama- 
 tion, that Wilkinson is a despot, and acted tyrannically, 
 is intended to excite prejudice against him. 
 
 Mr. Hay then said that he should move to postpone 
 the motion of gentlemen until the prosecution was over, 
 for several reasons: because it would necessarily inter- 
 rupt the business before the court ; because it was in- 
 tended to impeach the credit of a witness ; and because 
 this inquiry could be as well conducted after as before 
 the prosecution. 
 
 Mr. Mac Rae. I will affirm, sir, in the presence of 
 this court, and the surrounding people, that the charge 
 now adduced against General Wilkinson is completely
 
 248 TRIAL OF AARON BURR. 
 
 unfounded. I affirm, that no witness has been brought 
 forcibly by General Wilkinson from New Orleans ; one 
 individual came reluctantly, escorted ; who, refusing to 
 obey the summons of the government, was regularly 
 brought before a magistrate, for his disobedience, and 
 dealt with according to the due course of law; and who 
 is now in the custody of a person before this court. All 
 the rest came as good citizens ought to have done ; 
 and the only fault which can possibly be attributed to 
 them, if it be a fault, is, that they came in the United 
 States vessel in which General Wilkinson was authorized 
 to come. 
 
 Mr. Wickham. May I request the liberty, sir, of 
 making a few remarks upon Mr. Hay's motion ? Mr. 
 Burr brought forward his motion in the simplest style 
 possible. There was no imputation ; there was no at- 
 tempt to excite the public feelings. He merely stated 
 his object in the most general terms ; he ought to have 
 been understood. The gentlemen, however, misunder- 
 stood him. They required a specification of our designs ; 
 we gave it to them in writing, and then we promised to 
 bring forward our motion to-morrow. They still in- 
 sisted upon a more particular explanation of our points ; 
 and Mr. Randolph rose and spoke to gratify them. 
 Nothing, however, seems to please those gentlemen. 
 They not only found fault with the motion, but the 
 looks of Mr. Randolph. He will scarcely, however, change 
 his face to please them. It is precisely such as God Al- 
 mighty gave him. 
 
 Mr. Hay, sir, has got into parliamentary habits ; and 
 talks very fluently of the previous motion. These 
 things are novel to me, who am a mere lawyer. On this 
 motion I will make but one remark. The constitution 
 has divided the powers of the government among these 
 great departments: the legislative, executive, and judi- 
 ciary. These must be kept separate and distinct, not 
 only in their duties, but in their practice. The legisla- 
 ture act upon expediency, the judiciary act upon right. 
 The gentleman, however, seems to think himself sud- 
 denly transported to the legislative hall ; and no doubt, 
 would soon think it very convenient to hang Mr. Burr. 
 He tramples all our judiciary forms under foot ; if we
 
 MOTION FOR AN ATTACHMENT. 249 
 
 make a motion before the court, he soon trips up the 
 heels of ours with his previous motion ; but he has no 
 right to do so. And where is his doctrine to end ? We 
 certainly have the same rights which they have ; and as 
 they have moved the previous question, we move, sir, 
 that the court shall not "hear their motion. This will 
 be ringing the charges without end ; it is a new inven- 
 tion. It is better that we send these parliamentary dis- 
 tinctions to the other side of the house, where they ought 
 forever to remain. 
 
 Mr. Hay says that this motion ought not to be made 
 pendente lite, and that he ought to be tried like other 
 people. Sir, Mr. Burr ought to have the same justice 
 meted out to him, which is meted to every other person. 
 He stands here on the same footing, and with the same 
 privileges, as any other citizen in his situation. I assert 
 that any other man would have a right to this attach- 
 ment ; and that the motion ought to be made pendente 
 lite, if at all. " Why (they loudly ask us) does he make 
 it at this time ? " " Why does he not postpone it till 
 after the prosecution?" Why, sir, when Mr. Burr is dis- 
 charged (and I hope he will shortly be so), he may not 
 be disposed to trouble the court any further. How long 
 this prosecution will last, no one knows : perhaps a week ; 
 perhaps longer. It is already gone so far beyond our 
 expectations, that it is impossible to conjecture. Now 
 sir, may not similar contempts occur ? Is it not necessary 
 to restrain certain people, by convincing them, that such 
 practices make them liable to punishment ? But they 
 say, that these charges are no foundation for a motion. 
 Our object is not to inflame the public mind ; facts will 
 suffice. And what has General Wilkinson done ? He has 
 brought witnesses with him from New Orleans, by mili- 
 tary force. He has taken their depositions entirely ex 
 parte at theNpoint of the bayonet ; yet there is no horror 
 in all this, for the purpose of keeping their testimony 
 straight ! I lay down this broad position : that the man 
 who goes about collecting affidavits upon affidavits, cor- 
 rupts the fountains of justice. We have already seen a 
 volume of such at this bar. [Mr. Hay. Did they come 
 from New Orleans ?] I did not say from New Orleans. 
 I might have particularly mentioned Mr. Jackson, who.
 
 250 TRIAL OF AARON BURR. 
 
 comes here with the depositions of witnesses, who are 
 thus bound hand and foot, thus tongue-tied because 
 their depositions had been taken. Sir, I saw them in this 
 very court examining witnesses with affidavits in their 
 hands, and comparing the one with the other : deposi- 
 tions taken not by commission", but ex parte. When an 
 interested agent thus goes about collecting depositions, 
 and with ignorant men, shaping them just as he pleases, 
 I aver that they are contrary to law, and to the spirit 
 and genius of our government ; that they are a contempt 
 upon this court, if done during the prosecution, by in- 
 terfering with the purposes of justice. Such men are 
 liable to an attachment, from the very moment when the 
 government took possession of Mr. Burr's person ; not 
 from the moment of his first arrest, but from the time 
 when they ordered Perkins to conduct his prisoner from 
 Fredericksburg to Richmond. 
 
 The gentleman has enummerated three species of con- 
 tempt : but the enumeration is certainly imperfect. 
 Does the gentleman know nothing of prosecutions for 
 libels on the court or on the parties? The publication 
 of a handbill against a party is a contempt of the court, 
 because the administration of justice is affected by it. 
 All acts to defeat justice, or to influence the public mind 
 pendente lite, are for the same reason contempts of the 
 court. Such contempts have been punished in Europe 
 and in this country. I repeat it, that whoever does any 
 act to influence the administration of justice is liable to 
 an attachment. But they say our object is to affect 
 General Wilkinson. He is a competent witness, however 
 arbitrary he maybe. His credibility will be judged of 
 from all the circumstances. Does General Wilkinson 
 shrink from the investigation ? 
 
 Mr. Hay. You know he does not. 
 
 Mr. WickJiam. The attorney for the United States 
 charges us with interrupting the prosecution. Our 
 motion is founded on right, and we will prove its truth. 
 He need not attend to it. If the court have not the right 
 to grant our motion, we shall lament it. We hope the 
 court will hear our motion to-morrow. 
 
 The Chief Justice said that the pendency of the prose- 
 cution was no objection to hear the motion but it was
 
 OPINION IN WILLIE'S CASE. 251 
 
 another question, whether there were any grounds for it 
 or not ; and that the court would not say that a motion 
 relating to the justice of the case ought not to be heard. 
 
 Mr. Hay wished it postponed to a later day ; and 
 insisted that, admitting the charges were true, they could 
 have no legal effect on the prosecution. He said he 
 would repeat his motion to postpone the inquiry. 
 
 Mr. Martin and Mr. Botts denied it ; and after some 
 desultory conversation, the court adjourned. 
 
 THURSDAY, June i8th, 1807. 
 
 As soon as the court met, the Chief Justice delivered 
 the following opinion in the case of Willie : 
 
 In point of law, the question now before the court re 
 lates to the witness himself. The attorney for the United 
 States offers a paper in cypher, which he supposes to have 
 proceeded from a person against whom he has preferred 
 an indictment for high treason, and another for a mis- 
 demeanor, both of which are now before the grand jury ; 
 and produces a person said to be the secretary or clerk 
 of the accused, who is supposed either to have copied 
 this paper by his direction, or to be able to prove in 
 some other manner that it has proceeded from his author- 
 ity. To a question, demanding whether he understands 
 this paper, the witness has declined giving an answer, 
 saying, that the answer might criminate himself; and it 
 is referred to the court to decide, whether the excuse he 
 has offered be sufficient to prevent his answering the 
 question which has been propounded to him. 
 
 It is a settled maxim of law, that no man is bound to 
 criminate himself. This maxim forms one exception to 
 the general rule, which declares that every person is 
 compellable to bear testimony in a court of justice. 
 For the witness, who considers himself as being within 
 this exception, it is alleged, that he is, and from the 
 nature of things must be, the sole judge of the effect 
 of his answer: That he is consequently at liberty to 
 refuse to answer any question, if he will say upon his 
 oath, that his answer to that question might criminate 
 himself. 
 
 When this opinion was first suggested, the court con-
 
 252 TRIAL OF AARON BURR. 
 
 ceived the principle laid down at the bar to be too 
 broad, and therefore required that authorities in support 
 of it might be adduced. Authorities have been ad- 
 duced, and have been considered. In all of them, the 
 court could perceive, that an answer to the question 
 propounded might criminate the witness, and he was in- 
 formed that he was at liberty to refuse an answer. 
 These cases do not appear to the court to support the 
 principle laid down by the counsel for the witness, in 
 the full latitude in which they have stated it. There is 
 no distinction which takes from the court the right to 
 consider and decide whether any direct answer to the 
 particular question propounded, could be reasonably 
 supposed to affect the witness. There may be questions, 
 no direct answer to which, could in any degree affect 
 him ; and there is no case which goes so far as to say, 
 that he is not bound to answer such questions. The 
 case of Goosely in this court is, perhaps, the strongest 
 that has been adduced. But the general doctrine of 
 the judge in that case, must have referred to the cir- 
 cumstances, which showed that the answer might crim- 
 inate him. 
 
 When two principles come in conflict with each other, 
 the court must give them both a reasonable construction, 
 so as to preserve them both to a reasonable extent. The 
 principle which entitles the United States to the testi- 
 mony of every citizen, and the principle by which every 
 witness is privileged not to accuse himself, can neither. 
 of them be entirely disregarded. They are believed 
 both to be preserved to a reasonable extent, and accor- 
 ding to the true intention of the rule, and of the ex- 
 ception to that rule, by observing that course, which, 
 it is conceived, courts have generally observed. It is 
 this : 
 
 When a question is propounded, it belongs to the 
 court to consider and to decide whether any direct an- 
 s\ver to it can implicate the witness. If this be decided 
 in the negative, then he may answer it without violating 
 the privilege which is secured to him by law. If a 
 direct answer to it may criminate himself, then he must 
 be the sole judge what his answer would be. The court 
 can not participate with him in this judgment, because
 
 OPINION ON WILLIE'S CASE. 253 
 
 they can not decide on the effect of his answer without 
 knowing what it would be ; and a disclosure of that fact 
 to the judges would strip him of the privilege which the 
 law allows, and which he claims. It follows necessarily, 
 then, from this statement of things, that if the question 
 be of such a description, that an answer to it may or 
 may not criminate the witness, according to the purport 
 of that answer, it must rest with himself, who alone can 
 tell what it would be, to answer the question or not. If, 
 in such a case, he say, upon his oath, that his answer 
 would criminate himself, the court can demand no other 
 testimony of the fact. If the declaration be untrue, it 
 is in conscience and in law as much a perjury as if he 
 had declared any other untruth upon his oath ; as it is 
 one of those cases in which the rule of law must be 
 abandoned, or the oath of the witness be received. 
 
 The counsel for the United States have also laid down 
 this rule according to their understanding of it ; but 
 they appear to the court to have made it as much too 
 narrow, as the counsel for the witness have made it too 
 broad. According to their statement, a witness can 
 never refuse to answer any question, unless that answer, 
 unconnected with other testimony, would be sufficient 
 to convict him of a crime. This would be rendering the 
 rule almost perfectly worthless. Many links frequently 
 compose that chain of testimony, which is necessary to 
 convict any individual of a crime. It appears to the 
 court to be the true sense of the rule, that no witness is 
 compellable to furnish any one of them against himself. 
 It is certainly not only a possible, but a probable case, 
 that a witness, by disclosing a single fact may complete 
 the testimony against himself; and to every effectual 
 purpose accuse himself as entirely as he would by stat- 
 ing every circumstance which would be required for his 
 conviction. That fact of itself might be unavailing, but 
 all other facts without it would be insufficient. While 
 that remains concealed within his own bosom, he is safe ; 
 but draw it from thence, and he is exposed to a prose- 
 cution. The rule which declares that no man is compel- 
 lable to accuse himself, would most obviously be in- 
 fringed, by compelling a witness to disclose a fact of this 
 description.
 
 254 TRIAL OF AARON BURR. 
 
 What testimony may be possessed, or is attainable 
 against any individual, the court can never know. It 
 would seem, then, that the court ought never to compel 
 a witness to give an answer, which discloses a fact that 
 would form a necessary and essential part of a crime 
 which is punishable by the laws. 
 
 To apply this reasoning to the particular case under 
 consideration : To know and conceal the treason of an- 
 other is misprision of treason, and is punishable by law. 
 No witness, therefore, is compellable by law, to disclose a 
 fact which would form a necessary and essential part of 
 this crime. If the letter in question contain evidence of 
 treason, which is a fact not dependent on the testimony 
 of the witness before the court, and therefore may be 
 proved without the aid of his testimony; and if the 
 witness were acquainted with that treason when the letter 
 was written, he may probably be guilty of misprision of 
 treason ; and therefore the court ought not to compel 
 him to answer any question, the answer to which might 
 disclose his former knowledge of the contents of that let- 
 ter. 
 
 But if the letter should relate to the misdemeanor and 
 not to the treason, the court is not apprised that a knowl- 
 edge and concealment of the misdemeanor would expose 
 the witness to any prosecution whatever. On this ac- 
 count, the court was at first disposed to inquire, whether 
 the letter could be decyphered ; in order to determin-e 
 from its contents how far the witness could be examined 
 respecting it. The court was inclined to this course from 
 considering the question as one, which might require a 
 disclosure of the knowledge which the witness might 
 have had of the contents of this letter when it was put 
 in cypher, or when it was copied by himself; if, indeed, 
 such were the fact. But on hearing the question more 
 particularly and precisely stated, and finding that it refers 
 only to the present knowledge of the cypher, it appears 
 to the court that the question may be answered without 
 implicating the witness ; because his present knowledge 
 would not it is believed, in a criminal prosecution, justify 
 the inference, that his knowledge was acquired previous 
 to this trial, or afford the means of proving that 
 fact.
 
 EXAMINATION OF WILLIE. 255 
 
 The court is therefore of opinion, that the witness may 
 answer the question now propounded. 
 
 The gentlemen of the bar will understand the rule laid 
 down by the court to be this : 
 
 It is the province of the court to judge, whether any 
 direct answer to the question, which may be proposed, 
 will furnish evidence against the witness. 
 
 If such answer may disclose a fact, which forms a neces- 
 sary and essential link in the chain of testimony, which 
 would be sufficient to convict him of any crime, he is not 
 bound to answer it o as to furnish matter for that con- 
 viction. 
 
 In such a case, the witness must himself judge what 
 his answer will be; and if he say on oath, that he can 
 not answer without accusing himself, he can not be com- 
 pelled to answer. 
 
 Mr. Williams (counsel for Mr. Willie) stated, that he 
 had misunderstood him the other day in court, and 
 in a subsequent conversation had obtained more ac- 
 curate information. He does understand a part of that 
 letter. 
 
 Mr. Hay requested that Mr. Willie should be called 
 into court. 
 
 When he appeared, Mr. Hay interrogated him. Do 
 you understand the contents of that letter ? Answer, No. 
 Mr. Willie afterwards said, that he understood the part of 
 the letter which is written in Dutch. 
 
 Mr. Hay. Was this letter written by the hand or the 
 direction of Aaron Burr. 
 
 Mr. Wickham objected to the question. 
 
 Chief Justice. The witness and his counsel will con- 
 sult. 
 
 Mr. Hay repeated the question. Mr. Willie: Yes. 
 Mr. Hay: Which? By his hand, or his direction? Mr. 
 Willie: By his direction. It was copied from a paper 
 written by himself. 
 
 Mr. Hay. I wish this paper to be carried to the grand 
 jury. I presume there can be no objection. 
 
 Mr. Botts. No objection ! We call upon you to show 
 the materiality of that letter. 
 
 Mr. Hay. I deny the necessity of any such thing. 
 Until this letter be decyphered, it will be perfectly unin-
 
 256 TRIAL OF AARON BURR. 
 
 telligible to me, and to the grand jury. It is no more 
 than a blank piece of paper. 
 
 Mr. WickJiam. I had always understood before, that 
 the testimony which is laid before the grand jury, must 
 not only be legal in itself, but proved to be material. 
 
 Mr. Williams begged leave to interrupt the gentleman. 
 Mr. Willie is anxious to be particularly understood. He 
 says, that this cyphered letter was first written by Mr. 
 Burr, and afterwards copied. But it is the cypher only, 
 which has been copied from Mr. Burr's original. 
 
 Mr, Hay. It is quite sufficient, sir. If Mr. Burr wrote 
 the cyphered part, he will be considered the author of 
 the whole. 
 
 Mr. Wickham. The gentleman has started a curious 
 proposition indeed ! I had always understood before, 
 that the whole included the part ; but it seems now, that 
 the part is to comprehend the whole. 
 
 Mr. Hay. The remark of the gentlemen may be wit, 
 sir, but he certainly knows that it is not law. 
 
 Chief Justice. Can you get this letter decyphered. 
 
 Mr. Hay. Is Erick Bollman in court? I wish him to 
 be called. These gentlemen demand proof of the ma- 
 teriality of this letter. Is this a question about which 
 the court will interfere? Can the court think it proper 
 to require the materiality of this cyphered letter to be 
 proved before it is sent up to the grand jury ? We may 
 turn the very favorite argument of gentlemen against 
 themselves. This letter is either material to the pres- 
 ent case, or it is not. If it be material, how can they 
 object to its production ? And if it be perfectly imma- 
 terial, what injurious consequences can result from its 
 being sent up to the grand jury? 
 
 Mr. Botts. I never supposed that it could be a ques- 
 tion, whether an immaterial paper could be exhibited 
 before the grand jury ? This question has been fre- 
 quently decided in the negative. On the trial of Smith 
 and Ogden, Judge Patterson solemnly decided against 
 such a proceeding. Were papers permitted to be laid 
 before a grand or a petit jury, before their materiality 
 was proved, it would produce an endless confusion and 
 waste of time. In Washington's Reports there is a case 
 where the court of appeals inferred error, because an in
 
 THE CYPHERED LETTER. 257 
 
 ferior court had permitted the introduction of an imma- 
 terial paper ; and this, too, was in a civil case. Even if 
 the grand jury have called for it, it ought not to be sent 
 to them, before its materiality has been shown to the 
 satisfaction of the court. 
 
 Mr. Mac Rae. Would it not be as proper, sir, to com- 
 pel every witness, before he is sent up to the grand jury, 
 to state the substance of his testimony, as it is to require 
 proof of the materiality of a paper ? This inquiry, how- 
 ever, is never made. The only qualification which is re- 
 quired about a witness is, that he should be a legal, 
 competent witness ; not that he should be sworn to be a 
 material one. The very same principle is applicable to 
 this paper. After it is proved to be revelant testimony, 
 is it necessary that an inquiry should be made into its 
 materiality ? In fact, how can any such proof be given, 
 when the letter itself is principally in cyphers? 
 
 Mr. Wickham. Mr. Mac Rae has demanded -author- 
 ities ; I have prepared none at present, sir, because I 
 could not suppose that any were necessary. As to his 
 argument, that no inquiry is to be made into the materi- 
 ality of a paper to be sent to the grand jury, because 
 none is made into that of a witness, it does not apply. 
 When a witne?s is sent up before a grand jury, it is 
 presumed that his testimony is relevant to the case. 
 The only question is, is he a competent witness ? And 
 it is only on the ground of incompetency, that his testi- 
 mony is not legal. If competent, he is a legal witness; 
 he is sworn, and is forced to answer such questions as 
 may be put to him by the grand jury. If, however, he 
 refuse, they then call upon the court to interpose its jur- 
 isdiction ; and the inquiry will then be, whether the 
 question be material and proper? As to the papers, 
 they are not to be received at all, unless they are shown 
 to be relevant to the case. And where is the limit to 
 this species of proceeding ? Suppose, in this search 
 after papers, all the private letters of Mr. Burr should be 
 brought up ; all the most secret actions of his life should 
 be written down, and brought hither to be submitted to 
 public inspection ? will the court indulge them in such a 
 wide inquisition ? 
 
 Chief Justice said he had in some measure anticipated 
 17
 
 258 TRIAL OF AARON BURR. 
 
 this question, and had reflected upon it ; his opinion 
 was this : a paper, to go before the grand or petit jury, 
 must be relevant to the case, even if its materiality were 
 proved. Why send this letter before the grand jury, if 
 it can not be decyphered ? If it can be decyphered 
 before the grand jury, why not before the court ? Let 
 it, then, be decyphered, and its relevancy may at once be 
 established. 
 
 Mr. Hay. Is there no difference between any other 
 paper and a cyphered letter proved to have been origin- 
 ally written by Aaron Burr? 
 
 Chief Justice. Still this letter may not be relevant to 
 the present case. 
 
 Mr. Hay then directed Erick Bollman to be called 
 into court, that he might be interrogated as to its con- 
 tents. He requested that the court would indulge him 
 for a short time, until he could execute some important 
 business before the court of appeals. 
 
 The court accordingly suspended the prosecution. 
 
 At half past one o'clock, the court again resumed the 
 business ; but neither Doctor Bollman nor Mr. Hay ap- 
 peared. 
 
 A few minutes after the court had resumed its busi- 
 ness, Mr. John Randolph entered at ftie head of the 
 grand jury, and addressed the court : 
 
 May it please the court : One of the witnesses, under 
 examination before the grand jury, has answered certain 
 questions touching a letter in cyphers. The grand jury 
 understand that this letter is in the 'possession of the 
 court or of the counsel for the prosecution. They have 
 thought proper to appear before you, to know whether 
 the letter referred to by the witness, be in the possession 
 of the court ? 
 
 Chief Justice observed, that as the letter was wanted 
 by the grand jury, a witness having referred to it, that 
 was sufficient to establish its relevancy, and directed it 
 to be delivered to them. 
 
 Mr. Mac Rae hoped that before the grand jury retired 
 they would be informed, that a witness had proved that 
 this letter was originally written by Aaron Burr. 
 
 Mr. Wickham. And I hope, they will also be informed 
 that the superscription on that letter has not been proved
 
 WITNESS BEFORE GRAND JURY. 259 
 
 to have been written by Mr. Burr. The witness did not 
 and would not say, that he knew the superscription to 
 have been written by him. 
 
 FRIDAY, June iQth, 1807. 
 
 As soon as the court met, Mr. Burr addressed them. 
 He stated, that the express he had sent on to Wash- 
 ington with the subpoena duces tecum, had returned to 
 this city on Wednesday last, but had received no other 
 than a verbal reply from the president of the United 
 States, that the papers wanted would not be sent by him ; 
 from which I have inferred, said Mr. Burr, that he intends 
 to send them in some other way. I did not mention this 
 circumstance yesterday to the court, under an expecta- 
 tion that the last night's mail might give us further intel- 
 ligence on the subject. I now rise to give notice, that 
 unless I receive a satisfactory intimation on this subject 
 before the meeting of the court, I shall to-morrow move 
 the court to enforce its process. 
 
 Chief Justice handed down to the bar a copy of a letter 
 addressed from Doctor Erick'Bollman to the chief justice. 
 It was not publicly read, and for that reason Mr. Hay 
 declared that he should not make any remarks upon it. 
 
 Mr. Burr's counsel called James Knox and Chandler 
 Lindsley (two of the witnesses for the United States , 
 whose affidavits had been drawn and were intended as 
 the ground of the motion for an attachment against 
 General Wilkinson. 
 
 Mr. Hay interrupted the motion, by stating that he 
 himself had a motion to make to the court ; and that was 
 for leave to send up such written interrogatories to the 
 grand jury as he thought proper to put to certain wit- 
 nesses. His reason was that some of these witnesses would 
 voluntarily depose to as little as possible ; that the grand 
 jury might not always, know the particular questions to 
 be proposed to them respectively, and to what point to 
 shape their inquiries ; that he himself better knew what 
 they would say (having seen their depositions), and that 
 his interrogatories might probably aid the jury in their 
 investigation. 
 
 Mr. Martin. I shall object to this motion, unless it
 
 2 6o TRIAL OF AARON BURR. 
 
 be qualified by giving us the same privilege. We can not 
 send up our witnesses to the jury, but we may send up 
 our interrogatories. We will assent to the motion of the 
 attorney for the United States upon the condition that 
 he will assent to ours. 
 
 Some conversation ensued upon the motion tor an 
 attachment; when the Chief Justice asked if the papers 
 could not be put into his hands, and the argument take 
 place to-morrow ; that he wished to consider the ques- 
 tion before it was discussed. 
 
 Mr Hay approved of this course. It would prevent 
 the public exhibition of these affidavits, which were drawn 
 up for the sole purpose of defaming General Wilkinson, 
 and thereby making an improper impression on the pub- 
 lic mind with respect to the trial of Aaron Burr ; and 
 had been obtained from persons who were willing to say 
 anything to answer the purposes of the accused, but very 
 ' reluctant to give any evidence on behalf of the United 
 States. That these were voluntary affidavits of these 
 reluctant witnesses, whose connection with the accused 
 would one day be known. If the place where, and per- 
 sons by whom they were dictated, were considered, the 
 court would see that the object was to prejudice the sur- 
 rounding multitude against General Wilkinson ; that they 
 had such deadly hatred against him, that if they could 
 but sink him, they were regardless of sinking themselves, 
 but that the integrity and patriotism of that man would 
 soon be known to all America ; that he had merely glanced 
 his eye at a single expression in one of these papers 
 which was as impudent a falsehood as ever malignity had 
 uttered. The court might compare these papers with 
 the law, and determine whether they would justify an 
 attachment or a rule to show cause, and that the court, 
 if they entertained any doubts, might then direct an ar- 
 gument ; but then he hoped that the witnesses would be 
 
 o 
 
 examined in court. 
 
 Mr Randolph spoke at considerable length, 
 been disposed to postpone this subject till to-morrow ; 
 but from the moment when he heard Mr. Hays antici- 
 pating speech he was opposed to all delay. Had pro- 
 duced documents to support his motion ; and yet, accord- 
 ing to Mr. Hay, it was dictated by nothing more than
 
 MOTION FOR AN ATTACHMENT. 261 
 
 the policy to defame General Wilkinson. Mr. Hay had 
 wandered into the very error which he had charged to 
 us. He had called upon the court to defend the char- 
 acter of General Wilkinson, the defender of his country, 
 who is to come through the fiery furnace purer than 
 gold ; and yet he has himself charged the witnesses now 
 before the court with malignity and rancor ! That 
 General Wilkinson was subject to the legal consequences 
 of his own illegal acts, and ought to be punished ; that 
 the affidavits were to the point, and ought to be read ; 
 they would show that he practiced a system of tyranny 
 from the commencement. 
 
 Mr. Botts. Why do gentlemen object to the present 
 motion being heard, when they have so often insisted 
 upon their own right to be heard by the court ? Why 
 do they reproach us with shrinking from the evidence, 
 when they are attempting to screen their favorite wit- 
 ness, General Wilkinson, from a fair investigation of evi- 
 dence? The witnesses ought to have been under the 
 protection of the court. Their countenances do not 
 bespeak devils ; they are like other men ; but they are 
 branded as villains. Does Mr. Hay desire that the char- 
 acters of these men should be immolated to this savior 
 of his country ? that their fair reputation should be 
 sacrificed to save his ? The constitution has recognized 
 the equality of man. Though those gentlemen may not 
 be decked out in the tinsel ornaments of military grandeur, 
 their -rights as citizens, and the respect due to their 
 characters, are the same as those of any other men. If 
 Wilkinson be able to go through the fiery ordeal, put 
 him on his trial. If his private declarations to Mr. Hay 
 are to be set against their oaths, let it be tried. I desire 
 for them to be put on trial as well as General Wilkinson. 
 Put them in one scale, and him in the other. We hope 
 our motion will be heard. 
 
 Mr. Mac Rae, at some length, expatiated upon the im- 
 propriety of animadverting at this time upon the char- 
 acter of General Wilkinson. The court had already 
 said, that no step should be taken which would affect 
 the justice of the case ; and it was therefore much bet- 
 ter for the court to pursue the suggestion which it had 
 out; to examine the papers in private, and see
 
 262 TRIAL OF AARON BURR. 
 
 whether the affidavits were relevant to the point, than 
 to prejudice the justice of the case by a public exhibition 
 of these affidavits ; that he was prepared to vindicate his 
 character ; but this was not the time, and he wished the 
 cause to be conducted regularly ; that the motion ought 
 to be reduced to writing, and the court would then de- 
 cide on it and the affidavits together. 
 
 Mr. Wickham protested against the secret tribunal to 
 which gentlemen wished to resort, for stifling inquiry and 
 murdering character. That gentlemen complained of 
 the waste of time, but they themselves wasted the most 
 by previous questions. The gentlemen who have made 
 these affidavits are upon their oaths. Is it right, said 
 he, for the counsel to charge them with perjury, and yet 
 not give them an opportunity of vindicating their vera- 
 city ? If an expression escape our lips, we are charged 
 with forstalling the public opinion. In every instance 
 they wander into bold assertions and violent invec- 
 tives. Is Wilkinson's character too sacred for public 
 investigation ? We have a right to be heard, and in- 
 sist on it. 
 
 Mr. Hay denied having made any such assertion. He 
 had merely alluded to one expression in their affidavits, 
 which was too monstrous to be believed. ' But why 
 all this feeling on the present occasion, when gentle- 
 men have so often charged General Wilkinson with 
 perjury. 
 
 Mr. Martin. When did we charge him with any 
 other perjury, than that of violating the constitution 
 which he had sworn to support ? Is not this notorious ? 
 Are not Swartwout and others here to prove it ? We 
 did not say that General Wilkinson was ready to per- 
 jure himself; but merely that he had everything now at 
 stake, and would go almost all lengths to hang Mr. Burr. 
 
 Mr. Wickham insisted on their right to go on with 
 their motion ; that the court only wished to get the 
 affidavits to understand their arguments better; but even 
 the court could not deprive them of the right to be 
 heard as advocates. 
 
 After some other discussion, Mr. Burr agreed to place 
 the papers in the hands of the court, and to waive his mo- 
 tion till to-morrow.
 
 MOTION FOR AN ATTACHMENT. 263 
 
 Chief Justice. Reduce the motion to writing. [This 
 was done.] 
 
 Mr. Burr. It is only upon the affidavits of Knox 
 and Lindsley, that we move for a rule to show cause 
 why an attachment should not issue against General 
 Wilkinson. 
 
 Mr. Martin hoped, as Mr. Burr had postponed his 
 motion, the attorneys for the United States would post- 
 pone theirs. 
 
 Mr. Hay refused, upon the ground, that the witnesses 
 were now before the grand jury, and that his interroga- 
 tories would be necessary to direct their inquiries ; that 
 he knew the testimony better than they did, and in 
 saving time, he wished to promote their convenience and 
 to put them on the track to get the whole truth. 
 
 Mr. Burr. I instructed my counsel to consent to 
 this motion upon the condition, that I should also be 
 permitted to send counter-interrogatories ; and the way to 
 get the whole truth is to send interrogatories on both 
 sides. 
 
 Mr. Hay did not feel himself at liberty to acquiesce in 
 such a proposition. He would rather trust to the dis- 
 tinguished intelligence of the grand jury. 
 
 Mr. Martin said, that in his practice of nearly thirty 
 years, he had never known interrogatories to be sent to 
 a grand jury ; that such a practice had never been 
 known in the whole history of jurisprudence. 
 
 Chief Justice said that the court was unwilling to de- 
 clare its opinion before it heard argument on that point ; 
 that the practice was uncommon in America, because in- 
 dictments usually suggest enough to a grand jury; that 
 there was no objection, in principle, to interrogatories, 
 but that the witnesses ought to be fully examined ; that 
 witnesses were only on one side, arid, therefore, they 
 should relate all they knew on both sides. 
 
 Mr. Wirt. Though the practice is unknown in Amer- 
 ica, yet in Shaftesbury's trial, questions were put by 
 the attorney-general, the court, and the grand jury; 
 but the intelligence of this grand jury will save us this 
 trouble. 
 
 Mr. Botts. I wish you had found <?ut this before. 
 
 Mr. Wirt. It is time enough.
 
 264 TRIAL OF AARON BURR. 
 
 Mr. Randolph. The case cited by Mr. Wirt shows 
 that interrogatories on one side only are not admissible. 
 The court was counsel for the prisoner. 
 
 Chief J-ustice. I do not recollect whether at that 
 time a prisoner were allowed counsel or not. 
 
 Mr. Hay. If the court allow interrogatories by both 
 sides to be sent to the grand jury, I am not willing to 
 send any. I never heard of such a case. 
 
 Chief Justice. Nor hath the court ; but as the grand 
 jury are only to examine witnesses on behalf of the 
 prosecution, if they are to be aided by interrogatories, 
 the principle of equal justice requires, that the witnesses 
 should disclose all they know, on one side as well as on 
 the other, and that the interrogatories should be sent by 
 both sides. 
 
 Mr. Burr stated that he recollected no instance of in- 
 terrogatories sent to a grand >ury, except in Kentucky, 
 in the prosecution against himself. That Mr. Davies, 
 the attorney for the United States, had drawn up some 
 interrogatories, which were shown to him, and with some 
 slight alterations suggested by himself, were sent to the 
 grand jury. 
 
 Here some conversation ensued relative to the form 
 of the motion for an attachment against General Wil- 
 kinson. The counsel for the United States insisted 
 upon a specification of the conduct, for which it was to 
 issue; that if generally expressed as a "contempt of the 
 court," nothing but the spirit of divination could enable 
 him to discover the specific offense charged against 
 him, nor to prepare for his defense ; that the precise 
 circumstances which constituted the offense ought to be 
 particularized. 
 
 Mr. Burr and his counsel said that the specification was 
 to be found in the two affidavits, and that it was from 
 delicacy to gentlemen, he had not attempted to make 
 these affidavits matter of record, by introducing them 
 on the face of the motion. The motion reduced to 
 writing, stated the offense to be " for a contempt in 
 obstructing the administration of the justice of this 
 court." The court then adjourned till to-morrow, eleven 
 o'clock.
 
 LETTER FROM THE PRESIDENT. 265 
 SATURDAY, June 2oth, 1807. 
 
 The court met according to adjournment. Present, 
 the same judges as yesterday. 
 
 Mr. Randolph rose to proceed with his motion, 
 when he was interrupted by Mr. Hay, who spoke to this 
 effect : 
 
 I have a communication to make to the court, and to 
 the counsel of the accused. The court will recollect the 
 answer which I received from the president, to my letter 
 respecting certain papers. He stated in that letter, that 
 General Wilkinson's letter of the 2ist October had been 
 delivered to Mr. Rodney, the attorney-general, from 
 whom he would endeavor to obtain it. By the last mail 
 I have received this letter from the president on the 
 same subject : 
 
 WASHINGTON, June ifth, 1807. 
 SIR, 
 
 In answering your letter of the Qth, which desired a 
 communication of one to me from General Wilkinson, 
 specified by its date, I informed you in mine of the I2th, 
 that I had delivered it, with all other papers respecting 
 the charges against Aaron Burr, to the attorney-general, 
 when he went to Richmond ; that I had supposed he 
 had left them in your possession, but would immediately 
 write to him, if he had not, to forward that particular 
 letter without delay. I wrote to him accordingly on the 
 same day, but having no answer, I know not whether he 
 has forwarded the letter. I stated in the same letter, 
 that I had desired the secretary at war to examine his 
 office, in order to comply with your further request to 
 furnish copies of the orders which had been given re- 
 specting Aaron Burr and his property; and, in a subse- 
 quent letter of the same day, I forwarded to you copies 
 of two letters from the secretary at war, which appeared 
 to be within the description expressed in your letter. 
 The order from the secretary of the navy, you said you 
 were in possession of. The receipt of these papers has, 
 I presume, so far anticipated, and others this day for- 
 warded, will have substantially fulfilled the object of a 
 subpcena from the district court of Richmond, requir- 
 ing that those officers and myself should attend the
 
 266 TRIAL OF AARON BURR. 
 
 court in Richmond, with the letter of General Wilkin- 
 son, the answer to that letter, and the orders of the 
 department of war and the navy therein generally 
 described. No answer to General Wilkinson's letter, 
 other than a mere acknowledgment of its receipt in a 
 .letter written for a different purpose, was ever written 
 by myself or any other. To these communications of 
 papers, I will add, that if the defendant suppose there 
 are any facts within the knowledge of the heads of de- 
 partments, or of myself, which can be useful for his 
 defense, from a desire of doing anything our situation 
 will permit in furtherance of justice, we shall be ready 
 to give him the benefit of it, by way of deposition 
 through any persons whom the court shall authorize to 
 take our testimony at this place. I know indeed that 
 this can not be done but by consent of parties, and I 
 therefore authorize you to give consent on the part of 
 the United States. Mr. Burr's consent will be given, of 
 course, if he suppose the testimony useful. 
 
 As to our personal attendance at Richmond, I am per- 
 suaded the court is sensible, that paramount duties to 
 the nation at large, control the obligation of compliance 
 with its summons in this case, as it would, should we re- 
 ceive a similiar one to attend the trials of Blannerhasset 
 and others in the Mississippi Territory, those instituted 
 at St. Louis, and other places on the western waters, or 
 at any place other than the seat of government. To 
 comply with such calls, would leave the nation without 
 an executive branch, whose agency nevertheless is un- 
 derstood to be so constantly necessary, that it is the sole 
 branch which the constitution requires to be always in 
 function. It could not, then, intend that it should be 
 withdrawn from its station by any co-ordinate author- 
 ity. 
 
 With respect to papers, there is certainly a public and 
 private side to our offices. To the former belong grants 
 of lands, patents for inventions, certain commissions, 
 proclamations, and other papers patent in their nature. 
 To the other belong mere executive proceedings. All 
 nations have found it necessary, that, for the advantage- 
 ous conduct of their affairs, some of these proceedings at 
 least, should remain known to their executive functionary
 
 ORDER OF THE NAVY DEPARTMENT. 267 
 
 only. He, of course, from the nature of the case, must 
 be sole judge of which of them the public interests will 
 permit publication. Hence under our constitution, in 
 requests of papers from the legislative to the executive 
 branch, our exception is carefully expressed, " as to those 
 which he may deem the public welfare may require not 
 to be disclosed," as you will see in the inclosed resolution 
 of the House of Representatives, which produced the 
 message of January 22d, respecting this case. The re- 
 spect mutually due between the constituted authorities 
 in their official intercourse, as well as sincere dispositions 
 to do for everyone what is just, will always insure from 
 the executive, in exercising the duty of discrimination 
 confided to him, the same candor and integrity, to which 
 the nation has in like manner trusted in the disposal of 
 its judiciary authorities. Considering you as the organ 
 for communicating these sentiments to the court, I ad- 
 dress them to you for that purpose, and salute you with 
 esteem and respect. 
 
 TH. JEFFERSON. 
 
 Accompanying this letter is a copy of the resolution 
 of the House of Representatives, containing the excep- 
 tion to which the president refers. I have also received 
 a letter from Mr. Smith, secretary of the navy, containing 
 an authentic copy of the order which was wanted, pre- 
 cisely corresponding with the unauthenticated copy in 
 my possession. 
 
 Mr. Wickham. I presume that these must be consid- 
 ered and noted as the return to the "subpoena duces 
 tecum." 
 
 Mr. Hay. So far as they go. When we receive Gen- 
 eral Wilkinson's letter, the return will be complete. I 
 have also received a letter from the secretary at war, 
 which contains all the orders of his department relative 
 to Aaron Burr. All which papers I shall deposit with 
 the clerk of this court. 
 
 The following is the order of the navy department : 
 
 I certify that the annexed is a true copy from the 
 records in the office of the department of the navy of 
 the United States, of the letter from the secretary of
 
 268 TRIAL OF AARON BURR. 
 
 the navy, to Captain John Shaw, dated 2oth December, 
 1806. 
 
 In faith whereof, I Robert Smith, secretary of the 
 navy of the United States of America, havie signed these 
 presents, and caused the seal of my office to be affixed 
 hereto, at the city of Washington, this I7th day of June, 
 anno Domini, 1807 ; and in the 3ist year of the indepen- 
 dence of the said States. 
 
 (Registered,) . RT. SMITH, 
 
 Ch. W. Goldsborough, Secretary of the Navy. 
 
 Ch. Clk. N. D. 
 
 (Copy.) 
 
 NAVY DEPARTMENT, zolh December, 1806. 
 SIR, 
 
 A military expedition formed on the Western waters 
 by Col. Burr, will soon proceed down the Mississippi, and 
 by the time you receive this letter, will probably be near 
 New Orleans. You will, by all the means in your power, 
 aid the army and militia in suppressing this enterprise. 
 You will with your boats take the best position to inter- 
 cept and to take, and if necessary, to destroy the boats 
 descending under the command of Col. Burr, or of any 
 person holding an appointment under him. There is 
 great reliance on your vigilance and exertions. 
 
 I have the honor to be, sir, your most obedient, 
 
 (Signed) RT. SMITH. 
 
 Captain John Shaw, 
 or the Commanding Naval Officer, 
 
 at New-Orleans. 
 
 Mr. Randolph. May it please your honors : 
 I am now about to commit to your attention the mo- 
 tion of which we gave notice some days past. The gene- 
 ral purport of it will be to award a rule against General 
 Wilkinson, to show cause why an attachment should not 
 issue against him for attempting to obstruct the free ad- 
 ministration of justice. Whether we shall be again 
 charged with an intention to inflame the public mind 
 against General Wilkinson, or to defame him, I know 
 not ; but of one thing I am conscious, that my object is 
 essentially different. We do not proceed on mere gene- 
 ral surmise ; but on plain facts. We shall endeavor to
 
 MOTION FOR AN ATTACHMENT. 269 
 
 remove all the prejudices which have been excited, and 
 shall rely on plain facts only. We hope to guard the 
 public against erroneous impressions, by depending on 
 correct evidence alone ; and that it will be manifest to 
 all, that every effort to obstruct the free will of a witness 
 should be punished. If General Wilkinson's character 
 should be incidentally affected, it will not be our fault. 
 If he must take upon himself the legal consequences of 
 his own improper conduct ; if he must submit to legal 
 doctrines ; he can not complain. It is due to the United 
 States, to the witnesses themselves, and to the persons 
 accused, that obstructions to the free administration of 
 justice should not pass with impunity. Sir, we shall at- 
 tach General Wilkinson on specific allegations, and by 
 specific facts. It is his duty, if he can, to repel these by 
 legal evidence ; not by illegal testimony, or the protes- 
 tations of his counsel, that they believe him to be inno- 
 cent, and an Israelite without guile. I prefer this course 
 that there may be no more waste of time in passing eu- 
 logies on General Wilkinson. There will be a future 
 occasion which will require the concentration of all his 
 luster, and it will be as well that the beams of his glory 
 should not be dissipated till we make the attack that 
 will strike home. 
 
 The ground on which we make the motion is this, that 
 General Wilkinson, who is now before the court, in a case 
 depending between the United States and Mr. Burr, de- 
 liberately abused "the process of the law relative to a 
 witness who has been summoned in this case. He con- 
 trived, on his own affidavit, and by his own power, to 
 obstruct the free course of legal testimony, and to inti- 
 midate, and coercively bring to this court, a witness, by 
 the abuse of military authority. For this illegal pro- 
 ceeding it is the dftty of the court to take notice of Gene- 
 ral Wilkinson. As the cases ought to be kept distinct, I 
 speak of him only ; but it may be necessary to carry the 
 principle into immediate execution as to other persons. 
 The grounds of this accusation are the depositions of 
 James Knox and Chandler Lindlsey, which will be read 
 to the court. 
 
 Mr. Hay objected to the introduction of these affi- 
 davits, because he understood that they had been writ-
 
 270 TRIAL OF AARON BURR. 
 
 ten and dictated by the counsel of Mr. Burr. He did 
 not pretend to say, that they contained anything which 
 they did not believe to be true, nor did he know their con- 
 tents ; but he understood, that they were introduced for 
 the purpose of strengthening some testimony concern- 
 ing General Wilkinson, or of showing improper conduct 
 on his part ; that he understood, that those witnesses 
 had voluntarily gone and given information to the coun- 
 sel, upon which the counsel had written or dictated the 
 terms of those affidavits ; that his idea was that when 
 affidavits are taken by the opposite counsel, though the 
 court may be perfectly satisfied with the conduct of the 
 counsel in taking them, yet according to universal prac- 
 tice the court would not permit them to be read ; that 
 the legal authorities showed, that a court would never 
 issue an attachment founded on affidavits taken by the 
 agent or attorney of the party applying for it ; that this 
 court would admit of no exceptions to this rule ; the 
 court of King's bench determined that " it was invariable 
 and founded on the wisest and most obvious principles." 
 Mr. Hay here cited the case of the King v. Wallace, in 
 3 Term Rep. p. 403, where the court had set aside an 
 affidavit that had been sworn to before the attorney for 
 the prosecution, and refused to grant an attachment ; that 
 the present case was stronger than that. The objection in 
 that case was, that it was sworn to before the counsel ; the 
 objection here is, that it is penned by the counsel, and is 
 therefore stronger and more within' the scope of that 
 policy on which the principle of the law is founded ; that, 
 however, he did not mean to reproach gentlemen for the 
 course pursued in this instance ; that he was sure that 
 nothing like impropriety was thought of by them, and 
 that perhaps he would have done the same thing in their 
 situation. 
 
 Mr. Baker, May it please the court, I shall not un- 
 dertake to say, what Mr. Hay would have done in our 
 situation, nor do I feel much interested in knowing; but 
 I rise solely for the purpose of correcting a mistake which 
 he has committed. He says, that these affidavits were 
 originally written by Mr. Burr's counsel. As to the affida- 
 vit of Knox, I know I can say nothing ; but as to the 
 affidavit of Lindsley, it was written by himself. The
 
 MOTION FOR AN ATTACHMENT. 271 
 
 facts are simply these : He called upon me with his affi- 
 davit already written (I had never seen him before), to 
 know whether it were correctly written or not. I read it, 
 corrected some inaccuracies in the style, and wrote it 
 over again : it was not sworn to whe^i brought to me. 
 After I had corrected those grammatical errors, and 'sub- 
 mitted it to Mr. Lindsley's inspection, he said that the 
 statement was perfectly correct. 
 
 Mr. Wirt. Do you know, Mr. Baker, who induced 
 Mr. Lindsley to adopt that course? 
 
 Mr. Baker. Perhaps yourself, sir: I never saw Mr. 
 Lindsley before. 
 
 Mr. Mac Rae. I beg to add one observation to what 
 has been already said on this subject. As the witnesses 
 are now before the court, and can be examined viva voce, 
 there is no inconvenience in the objection. If they 
 were at a distance, so that they could not be personally 
 examined, we should have found no difficulty in admit- 
 ting their affidavits ; we should have waived the objection, 
 lest it might seem that we were afraid of them. I hope 
 that it will not be believed, that we feel any such ap- 
 prehension. I hope that it will seem to the court right, 
 that the affidavits shall not be read, especially as our 
 affidavits were objected to, when our witnesses were at 
 New Orleans. I hope that gentlemen will not insist on 
 the necessity of discussing this point further. If they 
 wish to know the whole truth, they will consent to ex- 
 amine the witnesses in open court. 
 
 Mr. Wickliam hoped that gentlemen would persevere 
 in the course which they had this day begun ; and in- 
 stead of warm and desultory declamation, come at once 
 to the law and authorities. They object to the reading 
 of our affidavits, and the question is whether in point of 
 law, their objection will be sustained? It happens in 
 many cases, and must happen in the progress of litiga- 
 tion, whether between individuals, or between the public 
 and individuals, that collateral points arise, in which it is 
 necessary that testimony should be heard: but if on 
 every collateral question, viva voce testimony were to be - 
 introduced, great inconvenience would result ; it would 
 lead to an unnecessary confusion and waste of time: and 
 the regular and established practice, therefore, is, when
 
 272 TRIAL OF AARON BURR 
 
 these 'collateral points occur, not to produce viva voce 
 testimony, but affidavits in support of them. These 
 affidavits are made before private magistrates ; that is 
 the authority by which they are taken. These being in 
 writing, must necessarily be written by one of three de- 
 scriptions of persons: by a magistrate or judge; by the 
 party himself, or his agent ; or by the witnesses. With 
 respect to the necessity of their being written by a judge 
 or magistrate, it will not be contended, that they are 
 ound to submit to the drudgery of writing the affidavits, 
 and most of'them have no clerks. It is therefore usual 
 to prepare the affidavits before, and for the magistrate 
 to sign them thus previously prepared : and besides, a 
 man may be an able magistrate, but a bad clerk. With 
 respect to the parties themselves, it will not be con- 
 tended, that they ought to write them, because a very 
 great proportion of them are unable to write them. 
 Who, then, is to write them? their counsel or agent, or 
 some indifferent person. How can the party get an in- 
 different person to write his affidavits ? The moment he 
 calls for an indifferent person to write them, he becomes 
 his agent, and is incapacitated from writing them : and 
 according to the gentlemen's arguments, these affidavits 
 could very seldom be produced. Hence, from the 
 necessity of the case, a custom has prevailed among 
 lawyers, to write their clients' affidavits; and the gentle- 
 man himself admitted fifteen minutes ago, that he has 
 been in the habit of doing so himself. 
 
 As to the authority quoted by Mr. Hay, had he consid- 
 ered it but one tenth part of the time he has argued it, he 
 would have seen that it did not apply. In that case, 
 the affidavits, on which the motion for an attachment 
 was founded, were sworn to before Lothian, who was the 
 attorney, or agent, for the prosecution. Here the affi- 
 davit was written by the witness himself, and only cor- 
 rected and copied by the counsel. Does the gentleman 
 suppose, that the actual presence of the attorney would 
 vitiate the affidavit? When a man writes an affidavit, 
 he acts a mere ministerial part ; but he who administers 
 an oath, performs the judicial function of a judge, or 
 justice of the peace. It is a sacred rule, that a magis- 
 trate who administers an oath, should be disinterested
 
 MOTION FOR AN ATTACHMENT. 273 
 
 between the parties; and in the case referred to, he who 
 administered the oath was not disinterested, but the at- 
 torney for the prosecution. I recollect an instance in 
 this city, where a magistrate, who was also a practitioner 
 of the law, drew an oath and administered it himself, 
 even in his own case : the first was not improper, though 
 the second was. Here Mr. Baker wrote the affidavit, 
 but did not administer the oath. There is a substantial 
 and plain reason, why the oath should be administered 
 with impartiality, but no reason can be assigned why the 
 agent of the party should not, as in this instance, copy, 
 and correct, in point of language, at the instance of the 
 witness; an affidavit prepared by the witness himself. 
 As to the witness being present, it makes no difference. 
 The practice, in such cases, is to read affidavits just as if 
 the witnesses were absent. 
 
 Mr. Burr. If it were perfectly agreeable to you, I 
 should have no objection to an examination of the wit- 
 nesses in court ; although the practice is, on principles 
 of convenience, otherwise: but if the court will submit 
 to the inconvenience, it will be agreeable to me. As to 
 the origin of this business, it is not perfectly undeistood, 
 and some unfounded insinuations have been made con- 
 cerning it. James Knox called on me, stated the usage 
 which he had received, and asked, whether any redress 
 could be obtained? One of my counsel, who was pres- 
 ent at this interview, concurred in opinion with me, that 
 some notice should be taken of this proceeding^ We at 
 first thought of referring him to Mr. Hay; but on recon- 
 sideration, we thought that, perhaps, Mr. Hay might 
 think himself disqualified from acting. Mr. Knox's own' 
 idea was, that he ought to come into court, and complain 
 himself, of the treatment he had received. 
 
 Mr. Wirt. Mr. Wickham says, that it is the practice 
 to produce affidavits on such motions; but this practice 
 is founded on expediency, and when it ceases to be ex- 
 pedient, the practice will also cease. The inquiry then 
 will be, whether it will be most expedient to examine a 
 number of witnesses openly, who are now in court, or 
 take their affidavits and read them ? The court would 
 wish to come at the true state of facts. I hope the gen- 
 tlemen on the othe$ side, would also wish the same. You 
 18
 
 274 TRIAL OF AARON BURR. 
 
 * 
 
 are called on to make a rule against General Wilkinson, 
 to show cause why an attachment should not issue 
 against him ; and to support this application, affidavits 
 are offered, and said to be founded on expediency. We 
 contend that viva voce testimony is better. Before you 
 grant it, you must be satisfied that it is right. The ques- 
 tion thep is, which is most satisfactory to your mind, an 
 affidavit taken by the party, or evidence stated by the 
 witness himself? How can the court be satisfied till 
 the witness be examined and fully heard ? Was the 
 affidavit written by the witness himself? Did it proceed 
 from him ? or, was it advised by him ? or, did it contain 
 his words? The counsel, no doubt, endeavored to draw 
 it as correctly, and as free from bias, as he could ; but it 
 was difficult to state it precisely as the witness would 
 have done. The witness states his facts, but he states 
 them in his own language. Is it likely, that when it is 
 changed to the words of the attorney, the idea intended 
 to be expressed by the witness, will be precisely retained ? 
 If you take the evidence, not from the fountain head, the 
 witness himself, but from a statement taken by another, 
 you run the risk of not being rightly informed ; but if 
 you examine the witness, there can be no mistake. 
 
 Mr. Botts said, that Mr. Burr had acquiesced, and con- 
 sented that the witnesses should be examined in court, 
 though he regretted the departure from usage established 
 on principles of convenience. 
 
 Mr. Martin. If the witness be examined, the clerk 
 will reduce what he shall say to writing, so as to give it 
 the effect of an affidavit. 
 
 Mr. Hay apologized for frequently misunderstanding 
 Mr. Burr. He complained, that from their respective 
 situations he could not hear the accused, notwithstanding 
 his clear and distinct voice, and emphatic manner. 
 
 James Knox was then called, when 
 
 Mr. Mac Rae addressed the court. He said, that as 
 the business was of considerable importance to General 
 Wilkinson, it was extremely desirable that he should be 
 present at the examination of this and the other witnesses 
 who might be introduced on this occasion ; that he was 
 now before the grand jury, and he had applied to the gen- 
 tlemen on the other side to postpone the motion till he
 
 MOTION FOR AN ATTACHMENT. 275 
 
 could be present, but they objected to any delay. He 
 therefore found it necessary to. apply to the court, to sus- 
 pend the examination for a short time, till the general 
 could be present ; that important facts, unknown to the 
 counsel for the prosecution, might be within the knowl- 
 edge of General Wilkinson, who therefore might material- 
 ly direct their inquiries in this examination. 
 
 Mr. Martin said, that the gentleman did not seem to 
 know in what stage of the business they were then en- 
 gaged ; that the question was, whether a rule should be 
 granted to show cause ; with which neither General Wil- 
 kinson nor his counsel had anything to do, and were not, 
 in fact, as much as supposed to be present ; and that the 
 court would take care that the witnesses should answer 
 correctly. 
 
 Mr. Wick ham complained, that they had been for a 
 considerable time prevented from making the motion, by 
 the delay of the gentlemen on the other side, and of Gen- 
 eral Wilkinson. 
 
 Mr. Mac Rae. The gentleman from Maryland has 
 said, that we were not present in court. I thought that 
 all the while he spoke, we were m court. The court 
 were pleased to notice our presence, and we were heard 
 and answered politely and respectfully: and what has the 
 court said? That gentlemen on both sides in court, had 
 a right to argue this question. It is now too late for 
 them to say, that they are exclusively engaged in this 
 motion, which we have an acknowledged right to discuss 
 and oppose ; and we shall be perfectly satisfied, if the 
 court will take notice of our observations, although Mr. 
 Martin should not. We hope, that if the reasons for de- 
 siring General Wilkinson's attendance appear as strong to 
 the court, as to the counsel for the prosecution, it will 
 consent to this short delay. We mean, with the leave 
 of the court, to put some questions to the witnesses, and 
 also, to produce some testimony ourselves; and we feel 
 confident, that we can s'atisfy the court, that no just foun- 
 dation exists for the present motion. 
 
 Mr. Martin. I thought I had assigned very sufficient 
 reasons, why the business should not be delayed. I knew 
 they were personally present. I saw them ; and if I had 
 not, they took good care to make us ojten hear them
 
 276 TRIAL OF AARON BURR. 
 
 They detained us three or four hours the other day, in 
 opposing the motion for a subpoena duces tecitm, after the 
 court had decided that they had no right to interfere. 
 It is unfair to take up a great deal of the time of. the 
 court, when, in point of legal contemplation, they are 
 not in court. Let the present motion be decided, and 
 when the rule is made, they may bring counter affidavits. 
 Mr. Wirt. If presence depend on speaking, Mr. 
 Martin is not only present, but, perhaps, is the only per- 
 son who is. I am willing, however, to be considered, if 
 he please, as not legally present ; but, as amicus curia, I 
 may make a few observations. These questions may 
 merit the consideration of the court. " Here is a rule 
 which I am required to make on General Wilkinson, to or- 
 der him to show cause why an attachment should not issue 
 against him. Shall I make it on a personal examination 
 of the witnesses, or follow custom, and by taking their 
 affidavits exclude part of their evidence? Shall I use 
 one or two links, when I may have the whole chain be- 
 fore me? Where testimony is present, ought I not to 
 take the full benefit of it ?" The inquiry will be made, 
 whether the man's interrogatories, when General Wilkin- 
 son is present, will not give more satisfaction to the 
 court than his mere affidavit ? Will not the court think 
 that a full view of the evidence will be better? Though 
 not present, he is deeply interested in the event of this 
 motion, when its object is, that he should show cause 
 why an attachment should not issue against him for a 
 supposed contempt of the court ; his character as a man, 
 as well as his credit as a witness, is affected. We are 
 told that the streams of the prosecution should be kept 
 clear and untroubled. If gentlemen be serious in these 
 admonitions, they will not persist in this mode of ex- 
 hibiting mutilated testimony ; for these ex parte affi- 
 davits, uncontradicted by General Wilkinson, may 
 unjustly prejudice the public opinion against him. We 
 hope that the court will, for themselves, as well as for 
 General . Wilkinson ; for expediency and public justice, 
 suspend this examination for a short time, till he can be 
 present. We do not wish a postponement for two or 
 three days or more, but a mere suspension while he is 
 necessarily before the grand jury.
 
 MOTION FOR AN ATTACHMENT. 277 
 
 Mr. Martin drew an analogy between this motion and 
 the proceedings before the grand jury. Gentlemen, 
 said he, have no more right to interfere in this stage of 
 the business, than we have to interfere before the grand 
 jury. It is exclusively in the power of the counsel for 
 the prosecution to send witnesses before the grand jury. 
 We have no such right. When the grand jury find a 
 true bill, and the trial in chief comes on before the 
 court, we can introduce what evidence we please, but 
 not before ; the principle is the same here. Gentlemen 
 have no right to introduce testimony when we apply for 
 the rule, but after it is granted, and they come forward 
 to show cause against issuing the attachment, then they 
 have an undoubted right to adduce what testimony they 
 think proper, to show that it ought not to issue. But 
 gentlemen say, that granting the rule may possibly tar- 
 nish the reputation of General Wilkinson. He may, on 
 showing cause against the attachment, come forward in 
 vindication of his character. We have no right to bring 
 testimony in our exculpation before the grand jury, 
 where indictments and accusations, committing our 
 character and as materially injuring us as he can be by 
 this motion, are- exhibited. Were we to attempt it, 
 their answer to us would be, " You are irregular ; you 
 can introduce no evidence before the grand jury, and if 
 they find any bill against you, you can wipe off the im- 
 pression made by their finding, in the usual and regu- 
 lar manner." As this is the way in which we wipe 
 off the impression of what is before the grand jury, so 
 he can wipe off the effect of granting the rule, on showing 
 cause. 
 
 Mr. Burr. It is not my wish to prevent gentlemen 
 from producing testimony in behalf of General Wilkin- 
 son, or to prevent his witnesses from being heard ; but 
 this can be done by introducing their affidavits. I 
 object only to the innovation of examining them per- 
 sonally on collateral motions like this, instead of reading 
 their affidavits. 
 
 Mr. Hay. It seems to be conceded that General 
 Wilkinson may produce testimony in his part. He has 
 been three hours before the grand jury, and in a very 
 short time, he may be discharged and appear in court.
 
 278 TRIAL OF AARON BURR. 
 
 It is singular that we should, by their own concession 
 have the right to appear and interrogate witnesses after 
 the rule is made, and yet not at this stage of the pro- 
 ceedings, when we are present to contest it. The party 
 on whom such a rule is usually made, is absent ; and the 
 object of it is, to bring him forward and to show cause, 
 if he can, why he should not be attached for his sup- 
 posed misconduct. No opposition is usually made, 
 because the party happens to be at a distance ; yet if 
 he be on the spot, as in the present case, there could be 
 no sort of reason or justice in preventing him from 
 showing at once that the charges against him are per- 
 fectly visionary and groundless. 
 
 Mr. Wick ham stated the importance of immediately 
 proceeding with the motion ; and that, according to law 
 and practice, there was no just ground of opposing it; 
 but that if the counsel on the other side would name a 
 particular hour in the course of this day, when the mo- 
 tion would be made, they would waive their right of 
 going on with it now. 
 
 Mr. Martin hoped, that the court would express in its 
 order, that this postponement was not in consequence of 
 the right of the gentlemen to demand it, but of the 
 consent of his friend. 
 
 Chief Justice said, that it was necessary to do so. He 
 stated what the law and practice were, and observed, 
 that if the motion were to be postponed till Monday, and 
 the witnesses on both sides were then heard, it would 
 answer every purpose ; and ,it might be considered 
 then as a motion for an attachment, not for a rule 
 to show cause. This would prevent disputes and delay. 
 
 Mr. Randolph. We shall move then immediately for 
 an attachment. 
 
 Mr. Mac Rae observed, that they only wished the 
 motion delayed till General Wilkinson could be permitted 
 to attend. 
 
 Mr. Hay wished, that in order to save time, gentlemen 
 would prepare their interrogatories, by reducing them to 
 writing. 
 
 Mr. Martin said, that this could not be done till it was 
 determined that an attachment would go ; but that there 
 would be no delay on that account.
 
 MOTION FOR AN ATTACHMENT. 279 
 MONDAY, June 22d, 1807. 
 
 Mr. Randolph, having directed James Knox and Chand- 
 ler Lindsley to be called, was proceeding to open the 
 motion which he had introduced on Saturday 
 
 Mr. Mac Rae had understood that this motion was to 
 be postponed till General Wilkinson could be present ; 
 and that the moment he was discharged from the grand 
 jury, they should notify the opposite counsel of it. 
 
 Chief Justice said, that as this was a motion for an at- 
 tachment against General Wilkinson, he ought to be 
 heard in his defense. 
 
 Here a desultory discussion took place. 
 
 Mr. Botts observed, that from a spirit of accommoda- 
 tion, they had agreed on Saturday, to postpone their 
 motion till this day; but it was in certain expectation 
 that General Wilkinson would be here to-day, and that 
 their motion would be no longer delayed ; that if they 
 consented to further delay, it might take several days 
 before the general would be discharged from the grand 
 jury; that though he was not present himself, he was 
 ably represented by counsel ; and that considering the 
 hardships and inconvenience imposed on Mr. Burr, by 
 such delays, he hoped that they would now be permitted 
 to proceed in their motion for an attachment, or a rule to 
 show cause. 
 
 Mr. Burr enforced the same principle. He was un- 
 willing to contravene the opinion or wishes of the court ; 
 but the subject required a few remarks. On Saturday, 
 he had waived his rights ; he had consented to vary the 
 motion, to give General Wilkinson an opportunity to be 
 present, under an expectation that he would be here on 
 this day, and that the motion would certainly be made ; 
 but he asked, whether his consent was to be indefinitely 
 extended to any period ? It was then in his power to 
 vary the form of the motion once more ; but notwith- 
 standing the inconvenience it would occasion to himself, 
 he was ready to waive his motion for the present, if they 
 would but name a certain time to-morrow, when they 
 would be certainly ready. 
 
 Mr. VVirt declared that was impossible for them to 
 say, when the grand jury would finish the examination
 
 2 8o TRIAL OF AARON BURR. 
 
 of General Wilkinson ; before which time he could not 
 come into court. We would have thanked gentlemen for 
 the accommodating spirit which they had manifested, if 
 they had not completely wiped away the obligation, by 
 converting it into a topic of reproach. If the rule were 
 granted, General Wilkinson would still be before the 
 grand jury, who would not spare him to the court. 
 
 The Chief Justice said, that the court would have con- 
 ceived itself bound to hear the motion for the rule, as it 
 was a motion of course ; but now it was varied, partak- 
 ing of a motion for a rule to show cause, and of one for 
 an attachment. That if'Genera! Wilkinson should be in 
 court to-morrow, the motion might go on ; that it was 
 not certain that he would be present ; but that the tes- 
 timony of .Mr. Burr could not be delayed longer than till 
 to-morrow ; and that General Wilkinson could cross-ex- 
 amine these witnesses when he came into court. 
 
 Mr. Hay stated, that this was the very circumstance 
 which they wished to avoid ; that those witnesses were 
 brought hither to accuse General Wilkinson, and that he 
 ought to be present to shape his inquiries according to 
 their evidence, and to expose their fallacy. 
 
 Chief Justice. General Wilkinson can not cross-exam- 
 ine them till Mr. Burr have done with them. 
 
 Mr. Hay. How can General Wilkinson know what 
 questions to put, if he know not what testimony has been 
 given by those witnesses ? 
 
 Chief Justice. All the questions put to them, and their 
 answers, will be reduced to writing. 
 
 Mr. Hay was unwilling that gentlemen should believe 
 that he wished to waive the discussion for a single 
 moment. Perhaps the grand jury would spare him for 
 an hour. He understood that he was then employed in 
 decyphering a letter before them. He suggested that a 
 messenger should be sent up to the grand jury, request- 
 ing them to spare him for an hour, if it were compatible 
 with their arrangements. 
 
 The marshal was accordingly sent to deliver the mes- 
 sage, who returned and informed the court, that General 
 Wilkinson was at that moment under examination. The 
 motion was accordingly postponed till to-morrow, when 
 it was understood that it would certainly be made.
 
 MOTION FOR AN ATTACHMENT. 281 
 
 The Chief Justice observed, that the attorney for the 
 United States might state to General Wilkinson, the 
 facts which were charged in the affidavit, and which 
 would agree in all the most material points with the in- 
 terrogatories that would be proposed to the witnesses. 
 
 TUESDAY, June 23d, 1807. 
 
 General Wilkinson appeared in court, and took his seat 
 among the counsel for the United States. 
 
 Mr. Burr rose and observed to the court, that as Gen- 
 eral Wilkinson was then present, he would proceed with 
 his inquiry. He would have it, however, distinctly un- 
 derstood, that if the charge could not be broght home to 
 General Wilkinson himself, so as to support the motion 
 against him, yet it must attach according to the testi- 
 mony, to any of his subordinate officers, as Mr. Gaines, 
 or any other. 
 
 Mr. Hay objected to this extension of the motion, 
 which he had understood to be confined to General Wil- 
 kinson alone ; particularly as they had not given any in- 
 timation of such an intention before : As no other per- 
 son had notice of this intended motion, but General 
 Wilkinson, the inquiry should be restricted to him 
 alone. 
 
 Mr. Randolph insisted that the evidence to be intro- 
 duced in support of their motion, must attach to General 
 Wilkinson, or any of his subordinate officers, or any other 
 person, according to what the witnesses should prove. 
 Before the witnesses were examined, he stated briefly the 
 nature of their motion and the substance of the testi- 
 mony by which he expected to support it. That the 
 charge against General Wilkinson was, that he had, in 
 conjunction with others, used unlawful and oppressive 
 means, under color and in abuse of the process of this 
 court, to bring James Knox and Chandler Lindsley from 
 New Orleans to this city; and thus had obstructed the 
 free course of testimony, and the fair and regular admin- 
 istration of justice ; and he hoped, that if the evidence 
 would prove the facts as he expected, the court would 
 punish him, his associates, dependents, or others, accord- 
 ing to the degree of their misconduct.
 
 282 TRIAL OF AARON BURR. 
 
 The witnesses were then introduced. James Knox 
 was first sworn. His testimony was as folio weth : 
 
 He says, that he went to New Orleans some time in 
 March; soon after his arrival, he received a note from 
 General Wilkinson, making some inquiry concerning 
 Sergeant Dunbaugh. He waited on the general, who re- 
 ceived and treated him handsomely, took him by the 
 hand, and asked him if he were not afraid after what had 
 happened, and what had been said about him. He told 
 him he was not afraid. He asked him whether he were 
 at liberty to reveal what occurred in coming down the 
 river? The witness said he was at liberty to reveal what 
 he knew ; but did not wish to do so. He inquired 
 whether the witness were a free-mason ? He then began 
 to take notes. The witness stopped him from taking 
 down, and told him it was not his wish to have what he 
 said taken down. He complained of distress ; expected 
 to be ruined. Said that there was a great force coming 
 down the river. He asked the witness his circumstances; 
 what money was due to him for his services in com- 
 ing down? He answered, $150. Asked him if he 
 were in want of money, and offered to supply him, which 
 the witness refused. He said he was very unhappy ; had 
 lost his wife ; but all that was nothing to his trouble on 
 account of the state of the country. The witness said 
 that a subpoena had been served on him about the I2th 
 of May, by Mr. Gaines, to attend this court ; that he told 
 him he was not prepared to come round then, but he ex- 
 pected to get money in ten or twelve days, and would 
 then be ready. He went to Gaines's office about four 
 days afterwards; was taken by a sheriff on Sunday even- 
 ing, who took him to Judge Hall's. The judge was from 
 home. He went again, and was told by the judge that 
 he must give his deposition, or go round to Richmond. 
 He answered, that he had no objection to going to Rich- 
 mond ; but having no counsel, would not give his depo- 
 sition, lest he should commit himself. No person but 
 the sheriff was present. The governor desired the sheriff 
 to take his word, if the judge could not be found: saw 
 the judge, and was bailed until eleven o'clock ; gave two 
 securities, bound in five hundred dollars each, to avoid 
 being put in jail. When he appeared, the judge had be-
 
 MOTION FOR AN ATTACHMENT. 283 
 
 fore him a number of printed interrogatories. The wit- 
 ness asked the liberty of reading them. He permitted 
 him to do so. The judge asked him if he would answer. 
 The witness refused until he had counsel ; but offered to 
 be placed in confinement until he could procure counsel. 
 He afterwards saw as his counsel, Mr. Carr, who informed 
 him that the judge had no right to demand such answers. 
 The judge still persisted in interrogating him, to some of 
 which interrogatories he answered, in order to save trouble. 
 The witness then related everything that had passed, 
 from Meadville until his arrival in New Orleans. Mr. 
 Fort was then sent for and interrogated. He made some 
 observations, and refused to answer (being, he said, 
 about Tom, Dick and Harry). After which the judge 
 gave the deputy marshal a note, who put Fort and the 
 witness into jail^among forty or fifty negroes and crim- 
 inals. Fort was bailed by his friends ; but they required 
 bail of the witness in five or six thousand dollars, and he 
 remained in jail until the vessel was ready in which he 
 embarked. He requested leave to get his clothes. Dun- 
 baugh then came with some men with belts and side- 
 arms. The witness asked if they were a guard ? He 
 was answered, no; but that they were some acquaint- 
 ances. That he has since been told by Dunbaugh, they 
 were a guard. They went with Dunbaugh and himself, 
 to the water-edge. The witness asked whether Lieuten- 
 ant Gaines were on board? They said no, but soon 
 would be. When Dunbaugh came to the jail, he had 
 an order which was handed to the jailer. While in jail, 
 the witness wrote to Lindsley and Doctor Mulhollon, to 
 come and see him ; and told them if they came to New 
 Orleans, what they might expect. He was informed by 
 the jailer that they would be confined. He did not 
 send the note. He did not see Gaines until the next day. 
 When Lieutenant Gaines came on board the vessel, he 
 said the witness was in a bad .humor; the witness told 
 him he was, and Gaines said that he had better be satis 
 fied, and bear his situation with patience. He asked 
 Gaines fo/* leave to go on shore for his clothes: he did 
 not care wha.t guard was sent with him. Gaines said, 
 that it was not in his power to grant it, but the powei 
 i/as in General Wilkinson. The witness was not permit
 
 284 TRIAL OF AARON B URR. 
 
 ted to get his clothes, and came without any except 
 what he had on at the time, and except that Lindsley 
 brought him one of his shirts which he had lent him. 
 Gaines, after having told him that he might put him in 
 irons, and bring him round in that manner, offered him 
 forty dollars. The witness said, that if he would let 
 him go on shore, he did not want it : otherwise must take 
 it. * It was paid and sent on shore; twenty dollars were 
 paid to his landlord, and the other twenty dollars re- 
 turned to him by Governor Claiborne, who came on 
 board and went with them six or eight miles on the 
 passage. And also, when they came to anchor in 
 Hampton Roads, Gaines asked him if he had any objec- 
 tion to coming to Richmond; he answered that he never 
 had any objection. Gaines said, that he was- sent by 
 the authority of Judge Hall. General Wilkinson spoke 
 to him next day, and asked him if he had any objection 
 to come to Richmond. He answered he had not, if 
 properly treated ; but he had been brought off without 
 clothes or money. General Wilkinson had not heard of 
 his not being permitted to bring his clothes, until that 
 morning. General Wilkinson agreed he was ill-treated. 
 Told him that he (witness) must understand, that he was 
 brought round by the direction of Judge Hall. General 
 Wilkinson proposed to let the witness go to Richmond 
 upon his parole of honor, which was refused. Wilkin- 
 son said, if the witness wanted twenty dollars, he should 
 have it ; afterwards he talked with Mr. Lindsley, and re- 
 turned to the witness and said, if he wanted fifty dollars 
 he might have it. Witness wanting money to purchase 
 clothes, took it. He observed, in the first conversation, 
 that he had twice asked favors of him and Gaines, and 
 would never ask a third favor of any person. He came 
 to Richmond with Moxley, in a pilot-boat. Moxley told 
 him that he had orders from General Wilkinson, to take 
 charge of the passengers on board the Revenge, and 
 bring them to Richmond, and there wait his (Wilkin- 
 son's) order. 
 
 Cross-examination by the counsel for the United 
 States. Have you any military commission? Answer: 
 None. Where were you born ? Answer: In Maryland ; 
 left it very young ; resided in Pennsylvania, and left it
 
 * MOTION FOR AN ATTACHMENT. 285 
 
 some time in November last. Left Pennsylvania (Mead- 
 ville) for New Orleans, on the 24th or 2$th of Novem- 
 ber ; went down the Alleghany and Ohio to Beaver ; went 
 from thence, with about twenty or thirty, to Blanner- 
 hasset's island, where he did not recollect to have stayed 
 but two days or a day and a half; left that place some 
 time in December, Blannerhasset and another with them, 
 who were the only persons who joined them there. 
 Stopped at Shawnee Town ; went with about double the 
 number to Cumberland island, just opposite to the 
 mouth of Cumberland river; stayed a day and a half; 
 met with Mr. Burr and a few others, the whole number 
 about fifty or sixty, about seven or eight boats, five fire- 
 arms ; went thence to Fort Massac ; Sergeant Dunbaugh 
 met them there with a musket, and after meeting with 
 Mr. Burr, he considered himself under his direction. 
 Went to Natchez. Mr. Burr did not accompany 
 them. Went from Natchez to New Orleans. Some of 
 the boats were chartered and others sold. They arrived 
 at New Orleans on the I3th or i6th of March. The 
 first notice he had, after seeing General Wilkinson, of 
 the proceedings against him was, when he was carried 
 before Judge Hall. He was said to be carried under an 
 affidavit of General Wilkinson before Judge Hall. Cap- 
 tain Gaines requested him to. write to him on shore, and 
 he would get what he wanted. He was not permitted 
 to send the letter. Never mentioned this to General 
 Wilkinson till they arrived in Hampton Roads. That 
 he was treated as others while on his way ; that is, as 
 well as some ; not so well as some, and better than 
 others. Arrived at Richmond on Friday evening ; put 
 up at the Bell tavern. Three days elapsed before he saw 
 Mr. Burr. He mentioned the treatment he had received 
 to Mr. Burr, and intended mentioning it to the court, on 
 his first appearance; but was told it was unnecessary. 
 That General Wilkinson used no terror against him ; and 
 offered to relieve him if he wanted money. Whilst at 
 the mouth of Cumberland river, and when Mr. Burr 
 made his escape, he was one that took Mr. Burr in a- 
 wherry, and carried him some distance, and left him in 
 the woods ; did not hear him address any one. The note 
 written him by General Wilkinson, and sent by Dun-
 
 236 TRIAL OF AARON BURR. 
 
 baugh, was left at his house sealed ; the object was to 
 obtain some information about Dunbaugh. No letters. 
 Carried Mr. Burr's things to a parson Bruin's, as he was 
 told. They had but few guns, which were traded for as 
 they descended the river. The vessel sailed from New 
 Orleans in half an hour after General Wilkinson came on 
 board. The one hundred and fifty dollars offered him by 
 General Wilkinson, he was induced to believe, was to 
 bribe him to give evidence against Mr. Burr, or it might 
 be considered as a bribe. Said he could obtain from 
 Colonel Tyler a sufficiency to carry him home under his 
 agreement with that gentleman. This conversation took 
 place before the subpoena was served. 
 
 Lieutenant Gaines was then sworn. He stated that 
 he received a letter from the attorney-general of the 
 United States, enclosing subpoenas for witnesses against 
 Mr. Burr. That he went to New Orleans in consequence, 
 and arrived there on the /th of May. Called several 
 times at the house where James Knox stayed, with Mr. 
 Lindsley and Doctor Mulhollon, and could not find them. 
 He was told by the landlord, that those gentlemen walked 
 out whenever he approached ; they supposed he had 
 something against them. He told his business, and at 
 length saw them. They said, that the reason why they 
 endeavored to keep out erf his way was, that they had 
 belonged to Burr's party and did not wish to appear 
 against him. He told them that the commander-in-chief 
 offered them a passage in a United States' vessel with 
 him. He desired Knox and Lindsley to say whether 
 they would come or not ? Knox said he could not 
 come until he had made some money arrangements 
 (though Lindsley seemed disposed to come on). That 
 he then applied to Judge Hall ; the judge directed him 
 to obtain an affidavit of the refusal, and that he would 
 take the proper steps. He said the subpoena might be 
 served by the marshal or sheriff, and proposed that he 
 (Lieutenant Gaines) should be appointed by the marshal, 
 a deputy. He refused, unless he could afterwards be 
 released from any further service in that capacity. Next 
 day the judge told him, that the marshal had left a depu- 
 tation for him, and asked him if he would act ; he an- 
 swered that he would on the foregoing condition, and
 
 MOTION FOR AN ATTACHMENT. 287 
 
 that he should not attend to Knox at New Orleans. 
 Knox appeared always ill-natured, which induced him 
 to ask him if he could do anything for him ? He ob- 
 tained from the United States' agent at that place, forty 
 dollars, and offered it to Knox, which he after sc:ro 
 hesitation accepted. In reply to his inquiries whether 
 Knox wanted assistance, he hesitated and then said, that 
 he wished to go on shore himself, to get some, necessa- 
 ries out of his trunk. He told him that as the vessel was 
 going to sail so soon, he could not ; but offered him pen, 
 ink, and paper, and requested him to write to some friend 
 on shore, to do what he wanted done ; or he would act 
 for him himself. He was then in a very ill humor, and 
 was so when the witness returned on board. James Knox 
 was under no restaint, from the time the vessel sailed, 
 till they arrived at Hampton Roads. To a question put 
 by Mr. Burr's counsel, by whose authority he acted, Lieu- 
 tenant Gaines answered, that in every step relative to 
 Knox, he acted under the authority'of the marshal at 
 New Orleans, except that he was authorized by the 
 commander-in-chief, to offer him a passage in a public 
 vessel. In serving the subpoena, he acted under the au- 
 thority of the attorney-general. When at Hampton 
 Roads, he inquired of Knox whether he had any dispo- 
 sition to go to Richmond? He said that he wished to 
 come to Richmond, but wished also to leave that vessel. 
 He told him he should leave it, but had not determined 
 how he would be conveyed to Richmond. General 
 Wilkinson told him, all would come in a vessel except 
 those who would come in the stage. His getting off 
 gave him no concern ; because he supposed that Knox 
 could be caught again in some part of the country, if he 
 attempted to go away. Whilst the witness"was on shore, 
 General Wilkinson procured a vessel in which Knox and 
 others were sent to Richmond. He considered Knox 
 under his authority, not as a military officer, but as deputy 
 marshal. That he was committed to his charge, as such, 
 in virtue of a warrant of commitment issued by Judge Hall. 
 He did not know the reason why the judge made such *" 
 an order. That General Wilkinson never attempted to 
 exercise any authority over Knox, on his passage. That 
 the deputation was not of his own procuring. That he
 
 288 TRIAL OF AARON BURR. 
 
 had received an order from the department of war, to 
 leave the garrison at which he commanded, under the 
 direction of some other person, and to attend to the 
 orders of the attorney-general. 
 
 Question by Mr. Burr. Had you no previous conver- 
 sation with General Wilkinson about this deputation ? 
 Answer: I had none. I never heard nor had any con- 
 ception of such a deputation till it was mentioned by 
 Judge Hall. He gave to Sergeant Dunbaugh an order at 
 New Orleans to receive from prison and deliver to the 
 commanding officer on board the United States schooner 
 Revenge, the body of James Knox, and he was accord- 
 ingly conveyed on board. 
 
 Question by Mr. Baker. Was not Dunbaugh a sergeant 
 in the army, and did you not consider him acting as such 
 under you? Answer: I should not have considered any 
 citizen of New Orleans bound to obey my order ; I did not 
 consider Sergeant Dunbaugh further bound than in compli- 
 ance with his promise. He was called Sergeant Dunbaugh, 
 but I did not consider him under my authority as a military 
 officer. I took no oath of office ; I gave no bond to per- 
 form the duties of a deputy marshal ; I do not know that 
 I shall get any pay ; I have no promise of any. General 
 Wilkinson made his affidavit at his own quarters, before 
 Mr. Cenas. I do not recollect whom General Wilkinson 
 consulted ; an attorney had been with him. I delivered 
 to General Wilkinson the subpoenas received from the 
 attorney-general of the United States, and among them 
 one for myself, another for Mr. Graham. I always con- 
 sidered myself bound to obey the orders of General Wil- 
 kinson. I was bound before the deputation to obey him, 
 and I continued so. I considered General Wilkinson as 
 having the -power of controlling myself, and every per- 
 son belonging to the army and navy of the United States 
 on board the Revenge, if he chose to exercise that con- 
 trol ; but I do not consider that he did exercise such 
 control. 
 
 The subpoenas which I delivered to General Wilkinson 
 came into my hands afterwards, but nothing passed be- 
 tween the general and myself on the subject, except that 
 I stated to him the orders I had received, and the power 
 I possessed. My impression was, that General Wilkinson
 
 MOTION FOR AN ATTACHMENT. 289 
 
 must have been privy to the whole, and perhaps recom- 
 mended that I should transact this business. I commu- 
 nicated to him what Judge Hall had said ; that an affi- 
 davit must be made of the materiality of Knox as a wit- 
 ness, before he could take any steps to compel his attend- 
 ance. General Wilkinson knew that Knox was put on 
 board the Revenge unwillingly. 
 
 On our way to Virginia we stopped at Havana for 
 fresh supplies of water and other necessaries. Some on 
 board were sick ; they prevailed on the officers to call. 
 While preparing to go on shore, a shot was fired from the 
 Moro castle, and orders given to come on shore. They 
 went on shore at the request of the sick persons on board 
 made to General Wilkinson and Captain Read. They 
 did not land until after four o'clock in the afternoon, and 
 a little after dark they set sail again. Had good provis- 
 ions, &c. on board. Heard Captain Read direct the cook 
 to Jet those people have their provisions regularly. To 
 a question put by Mr. Burr's counsel, he answered, that 
 General Wilkinson pointed out the witnesses on whom 
 the subpoenas must be served. He, on several occasions, 
 received advice and instructions from the counsel whom 
 he consulted how to act in executing the business in which 
 he was engaged. 
 
 Mr, Randolph. Upon what authority were the forty 
 dollars received from the military agent ? Answer: The 
 money received from the military agent was applied for, 
 after several applications from Knox; and General Wil- 
 kinson advised me to consult Judge Hall, whether it 
 were legal to demand money for him ? And was told by 
 the judge that it was regular to advance a reasonable sum ; 
 and was also told by the military agent, that General 
 Wilkinson had advised him to advance that sum. The 
 general advised me to consult the attorney-general there, 
 or Mr. Duncan, and the general's own idea corresponded 
 on the subject, 
 
 Mr. Graham being sworn gave the following testimony : 
 A short time after the arrival of Captain Gaines at New 
 Orleans, I was told that he had subpoenas for witnesses, 
 and one for myself; that there was a public vessel that 
 would carry us to Richmond. I then waited on General 
 Wilkinson to know whether J could be accommodated in 
 19
 
 2 9 o TRIAL OF AARON BURR. 
 
 that vessel? My health was bad at that time; General 
 Wilkinson agreed that I should ; and then said that he un- 
 derstood that there were several witnesses in town, some 
 of whom were unwilling, others unable to come round ; 
 and asked me if I knew any legal means or process, by 
 which those who were unwilling could be compelled to 
 come? I told him I did not know, but I supposed the 
 federal judge could inform him. As there was a misun- 
 derstanding between the general and the judge, I offered 
 to ask the judge myself, whether there were such process ; 
 and I did so. At this, or some subsequent time, General 
 Wilkinson told me to ask the judge, whether there were 
 any impropriety in advancing money to the witnesses, 
 and to what amount? The judge said, that so far from 
 being improper, the witnesses had a right to demand it. 
 The judge said, in answer to the other question, that if 
 the witness refused to enter into recognizance, or to an- 
 swer such questions as would satisfy him of the material- 
 ity or relevancy from the law (which he showed me), he 
 would be authorized to send such witness round under 
 the care of the district marshal. He saw a few days after, 
 in an outer room at the judge's, Mr. Knox talking with 
 Mr. Keene, a lawyer; some short time after, when these 
 gentlemen came i^to the room, the judge asked Knox if 
 he were then willing to answer questions, or enter into rec- 
 ognizance ? He declined doing either. The judge had 
 that clause of the law before him. He pointed it out 
 to Mr. Keene, and a Mr. Fort, who was in the same sit- 
 uation with Knox, and advised them to do one of the 
 two ; or he should be obliged to act rigidly towards them ; 
 that he was very unwilling to act against them ; but it 
 was his duty, and he must do it. The same gentleman 
 had a curiosity to know what questions they intended 
 to put to him, and then the printed interrogatories were 
 shown to him. The judge asked Mr. Fort to answer 
 these interrogatories, which he refused to do. The judge 
 then sent for the marshal, and committed both of them. 
 In the afternoon Captain Fort gave security in $500 
 for his appearance at Richmond, and was released. He 
 understood Captain Fort was going in the ship Amity to 
 New York, in order to come to Richmond ; but as Fort 
 told the witness, he could not leave New Orleans
 
 MOTION FOR AN ATTACHMENT. 291 
 
 without injury to his business, it was his own opinion, 
 that he would not leave that place. Mr. Keene inti- 
 mated to the judge, that he did not appear as an attor- 
 ney ; but expressed some doubt of the correctness of the 
 proceedings, and of the power of the judge to send Knox 
 round. The ship's stores were good, and the persons 
 treated civilly and not restrained. They slept where 
 he did. They called in at Havana on account of bad 
 winds, and being chased close in by a British cruiser. 
 Captain Read, who commands the vessel, Mr. Gaines, 
 Mr. Smith and himself went on shore to procure fruit, 
 &c. Remained there about three hours. His impression 
 was, that if the gun had not been fired from the fort, they 
 should not have gone in. That part of the navy of the 
 United States, which is at New Orleans, and was formerly 
 under the control of the government, and the officers 
 about New Orleans, when the country was considered to 
 be in a state of danger, was put under the command of 
 General Wilkinson. He saw no guard on his way to 
 New Orleans. I went, said Mr. Graham, partly by land, 
 and partly by water. I went down the river with Cap- 
 tain Fort, who said, that he was one of a party, whose 
 object was to go against Mexico ; of which declaration 
 he made no secret. I do not know by what authority 
 Fort was brought, before the judge, but Judge Hall said 
 he felt himself bound to act under the law. I advised 
 Fort not to oppose the judge, who was a very deter- 
 mined man. Fort replied, that Mr. Alexander said, that 
 the judge had no right to send him. The judge 
 and Mr. Keene both requested him to request Mr. 
 Gaines to remove Knox out of the prison to the 
 vessel. 
 
 Lieutenant Gaines, upon being called up again, said 
 he is an officer of the United States army: never con- 
 sulted General Wilkinson about accepting the appoint- 
 ment of deputy-marshal. He understood Fort was 
 -included in the same affidavit with Knox. He sailed 
 from New Orleans in the Revenge ; saw General Wilkin- 
 son exercise no kind of authority on the voyage. 
 
 Mr. Graham said, that General Wilkinson opposed 
 their stopping at Havana for two reasons ; first that it 
 would occasion delay, and secondly, that his enemies
 
 292 TRIAL OF AARON BURR. 
 
 might charge it against him as an improper act. The 
 gun was fired from the Moro castle. 
 
 1 understood that the judge had requested Mr. Gaines 
 to accept the deputation. Gaines did not wish to act. 
 He was urged by myself and others to accept it ; and he 
 did accept it, I believe from motives of patriotism. 
 General Wilkinson exercised no control over the persons 
 on board ; and no restraint was used, except what 
 has been mentioned with respect to the witness Mr. 
 Knox. 
 
 After the testimony was closed, a dispute arose be- 
 tween the counsel, which side should begin the argument, 
 both parties claiming the right. After some observations 
 by gentlemen on both sides, it was determined, that the 
 correct distinction was, that he who obtained a rule to 
 show cause should close, and, of course begin the argu- 
 ment. 
 
 WEDNESDAY, June 24th, 1807. 
 
 Mr. Graham was called by Mr. Mac Rae, and ques- 
 tioned, relative to the state of the public mind at New 
 Orleans, and whether great alarms were not excited by 
 the conspiracy ? Ke answered, that he had not arrived 
 at that place till the month of March, and at that time the 
 public mind was much agitated. 
 
 To a question put by Mr. Burr, whether General 
 Wilkinson himself had not contributed to excite those 
 alarms by. his violent measures? Mr. Hay objected as 
 improper. Colonel Burr insisted on the propriety of his 
 question. 
 
 The court was of opinion, that the witness was only 
 bound to answer such questions as directly applied to the 
 subject before them. 
 
 Mr. Graham said, tljat there was a considerable por- 
 tion of the people at New Orleans, who believed, that 
 there was another portion unfriendly to the government. 
 He did not know the measures pursued by the execu- 
 tive, at New Orleans. He was then interrogated as to 
 the post-offices being robbed of letters. He did not 
 recollect that General Wilkinson particularly informed 
 him how letters of information were received by him ;
 
 MOTION FOR AN ATTACHMENT. 293 
 
 only he observed, concerning a letter partly in cypher, 
 that he had received it from a house at New Orleans 
 [which Mr. Graham named : but it is not inserted, as he 
 was not distinctly heard] ; that the practice of opening 
 letters, if it existed at all, had ceased, when he arrived at 
 New Orleans ; that General Wilkinson showed him three 
 or four letters. He did not know how those letters were 
 taken from the post-office, but it was generally said at 
 New Orleans, that the post-master there had given him 
 those letters. 
 
 Mr. Burr asked him, whether a considerable number 
 of letters, directed to himself, or to others, had not been 
 taken from the post-office there ? He answered, that he 
 knew not ; but there was an impression on his mind, that 
 letters were improperly taken from the post-office ; 
 whether by General Wilkinson or not, he knew not. He 
 rather thought not. 
 
 Mr. Martin. Did you not understand that General 
 Wilkinson had placed guards on the river, and on the 
 roads, to stop travelers and passengers from passing? 
 
 Mr. Graham. I did understand that he had placed 
 guards at two points, near New Orleans, for the purpose 
 of arresting suspected characters. I had understood also, 
 that certain persons had been seized. 
 
 Mr. Martin. Did General Wilkinson never tell you 
 how he got those letters? Mr. Graham. He did not. 
 
 Captain Murray was then called and sworn. 
 
 Being interrogated by Mr. Burr, he stated that he was 
 stationed at Ville Grove, two miles above New Orleans. 
 His orders from Governor Claiborne were to stop boats 
 coming down the river, and examine them ; to examine 
 papers, but break no seal : but that, from his orders he 
 would have deemed it his duty to have transmitted letters 
 addressed to suspicious persons to the executive at New 
 Orleans. 
 
 Mr. Burr. Would you have obeyed the governor, 
 since, as an officer, you are strictly bound to obey Gene- 
 ral Wilkinson. 
 
 Captain Murray. Ye, I should. The orders from 
 Governor Claiborne originated with, and always came 
 through General Wilkinson. 
 , Mr. Edmund Randolph then addressed the court thus:
 
 294 TRIAL OF AARON BURR. 
 
 May it please your honors : The motion which we so 
 often attempted to bring forward, I hope, will now be 
 submitted and freely argued : the motion to attach Gene- 
 ral Wilkinson, for endeavoring to prevent the free course 
 of testimony. The immediate object will be to call on him 
 to answer interrogatories, whether improper practices have 
 not been used by him : the ulterior object will be deter- 
 mined afterwards. I believe that, in cases of this kind, 
 where strong suspicions exist, the attachment must go-, 
 because it is in the power of the party charged to purge 
 himself on oath. If he refuse, it arises from a conscious- 
 ness of his own guilt. His innocence is first to be pre- 
 sumed, and everything is in his own power. If he omit 
 to clear himself, the court will take measures for enforc- 
 ing obedience to the power and dignity of this tribunal. 
 
 Give me leave to open this case as it now appears, from 
 the testimony before the court. It no longer depends, 
 as at first insinuated, on the evidence of James Knox, 
 who has been censured for enmity against General Wil- 
 kinson. It has been enlarged and enforced by the testi- 
 mony of two very respectable gentlemen, brought for- 
 ward by General Wilkinson himself. 
 
 Sir, if we were to have the same command or range 61 
 persons that the counsel for the prosecution have, we 
 should lay before you a history of this illegal and oppres- 
 sive proceeding, far more detailed, and far more strong, 
 than is yet in our power. I judge, that this would be our 
 ability, when you hear so much from his own witnesses, 
 who are supposed by him the best to understand the cir- 
 cumstances which can operate in his favor. And here 
 give me leave to pay a tribute of applause (which I shall 
 always be ready to avow) to the frankness and manliness 
 of those gentlemen, whom he has introduced, in candidly 
 and ingenuously stating all the circumstances known to 
 them. That confidence which I had before in the evi- 
 dence of James Knox is greatly strengthened and con- 
 firmed by the strong and respectable testimony of Lieu- 
 tenant Gaines and Mr. Graham. Mr. Gaines, a lieuten- 
 ant in the army, was, by words, made a deputy marshal. 
 Sir, I feel a repugnance at the idea. I feel a repugnance 
 at this germ of an alliance between the civil and military 
 authority, when the civil wants not the aid of the military
 
 MOTION FOR AN ATTACHMENT. 295 
 
 arm. I am not sufficiently versed in the policy of mixing 
 offices of such opposite descriptions together, without 
 necessity. I hope I shall never have occasion to be ac- 
 quainted with the extraordinary and dangerous policy of 
 joining together such offices. 
 
 That a man, owing obedience only to a superior milita- 
 ry commander, is to be placed in a civil capacity, for. the 
 singlepurpose of catching and detainingunfbrtunatemen, 
 who may happen to be witnesses in a particular cause, is 
 a dangerous innovation, and ought not to be tolerated. 
 Sii, I do not pretend to recollect the purport of that paper, 
 by the authority of which Lieutenant Gaines acted as 
 deputy marshal ; but I understand, that its principal ob- 
 ject was, to enable him to transport Mr. Knox from New 
 Orleans to Richmond. It is immaterial, at this time and 
 place, to enter into a specification of his power thus con- 
 ferred, or attempted to be conferred. It is sufficient that 
 a military man is created a deputy-marshal ; not for the 
 general purposes of the office of marshal, but for the sin- 
 gle purpose of proceeding and carrying by force, to Rich- 
 mond, a man apprehended as a witness in New Orleans. 
 This outrage, whether it be called civil or military, was 
 committed after Mr. Knox was regularly summoned. 
 The inference that I draw from this, is, that something 
 of a military nature was intended in order to effect the 
 object in view by compulsion. 
 
 Can you believe, that there were so few men of integ- 
 rity in New Orleans (I believe it abounds with such) that 
 no man could be found by whom this business could have 
 been executed, without this oppressive union of military 
 power with civil authority? It can not then be justified by 
 the plea of necessity. It was as unnecessary as it was unpre- 
 cedented and illegal; and whether this appointment was 
 suggested by the judge (who seems to have been infected 
 with the mania excited by Wilkinson), or whether it pro- 
 ceeded from Wilkinson himself, it was equally improper. 
 He wasappointed to an office without the possibility of em- 
 ployment ; the subpoena had been served, and he had 
 nothing to do as marshal. Every step taken, after the 
 subpoena was served, was military, coercive, and violent : 
 nothing conformable to law. Consider the whole testi- 
 mony, and say, once for all, whether it were not a con-
 
 296 TRIAL OF AARON BURR 
 
 trivance to effect their favorite object, in pretended 
 observance, but in real evasion, of the law? It is evi- 
 dent that, in truth and in law, Mr. Gaines was no deputy 
 marshal. He was commanded by the act of congress, 
 to give bond and security before he entered on the 
 duties of his orifice; nay, more, he must qualify and be 
 duly sworn in the same manner that the marshal himself 
 is sworn ; and till he does comply with these requisites, 
 he has no more power as a marshal, than any man whom 
 I now behold in this assembly. [Here Mr. Gaines being 
 called for that purpose, showed his deputation.] But it 
 may be said that there was no occasion to give bond and 
 security because he was only appointed for the special 
 purpose of removing a man from New Orleans to Rich- 
 mond. But before he could be a marshal at all, these 
 requisites must be complied with. He would not other- 
 wise be a marshal for any purpose. Without doing so, he 
 was wholly unauthorized, and entitled to no respect as an 
 officer. He had no civil authority or character; he had 
 no right to take upon himself the office of sub-marshal. 
 Mr. Gaines frankly and candidly tells you, that he was 
 not absolved from military duty ; but to comply with 
 the wishes of the general, he was obliged, or found it 
 convenient, to act thus towards James Knox ; and he has 
 said, that if commanded by the general, he would have 
 put him in irons. The military genius prevailed over 
 the civil wherever it was seen. But he deemed it 
 necessary to make use of the judge to execute his plan. 
 This man, without any authority, by the orders of his 
 superior officer, and to please him, goes to Judge Hall ; 
 he has an interview with him : " How am I to get this 
 refractory man to Richmond?" "You can not do it 
 without an affidavit." " How must this affidavit be 
 procured?" The transaction furnishes the answer. It 
 is procured by a communication through Mr. Gaines to 
 General Wilkinson, that this step was necessary for 
 this particular purpose. The affidavit is made by Gen- 
 eral Wilkinson, knowing that its object was to effect the 
 transportation of James Knox to Richmond. He him- 
 self caused his own affidavit to be taken. He tells 
 Captain Gaines, a military officer under his command, to 
 tinnsport him. He willfully, then, contributed to do an
 
 MO TION FOR AN A TTA CHMENT. 2 g 7 
 
 act which he knew to be illegal. Do not let me.be told, 
 that it was the act of the judge. The case will not be 
 amended by that refuge, for the judge himself, as is mani- 
 fested by all the circumstances, was stimulated by Wilkin- 
 son, and greatly transcended the limits of the law, to effect 
 the performance of an act to which Wilkinson was not 
 only contributing, but of which he was prime mover. 
 He demanded bail and bond security that Knox would 
 go twelve hundred miles. Sir, if conduct Jike this in a 
 judge is to be tolerated, there is an end of all law and 
 justice. He could not but know that there was no law 
 authorizing such an act of oppression. What, sir, shall 
 he, from his own arbitrary will, demand bond and secu- 
 rity, in a large sum, of a man who is merely summoned 
 to appear at a court as a witness, who is willing to 
 attemd, and whose failure to appear legally subjects him 
 only to an attachment ? Shall he cast a man thus sum- 
 moned into jail, because he can not give such excessive 
 security as he tyrannically demands ? They wished to 
 extort testimony from this man by intimidation and 
 violence; they required bail of him, though a stranger 
 without property, in five or six thousand dollars, in a 
 case where they had no right to require any security, or 
 to molest him at all. Was this man capable of giving 
 bail in so excessive a sum ? This judicial outrage of de- 
 manding bail where none was demandable ; of casting 
 the man into prison, because this illegal condition was 
 not, and could not be complied with, and this for the 
 purpose of extorting evidence, is an offense of unusual 
 enormity. What a mass of destruction to the rights and 
 privileges of private citizens is here contrived between 
 the judge and General Wilkinson ? The illegal design 
 can not be accomplished without an affidavit. Wilkin- 
 son voluntarily makes this affidavit, stating the material- 
 ity of the evidence of Knox. After it is made, by 
 what means does it come into the hands of Judge Hall ? 
 Who was the carrier of it? Not Lieutenant Gaines, 
 but General Wilkinson himself. And for what purpose? 
 To enable them to transport James Knox to Richmond. 
 And who is the executioner of this order? This trans- 
 portation is to be effected, not by a regular marshal or 
 civil officer, but by an officer under his command, unless
 
 298 TRIAL OF AARON BURR. 
 
 Knox gives bond and security, in a strange country, to an 
 amount which he could not possibly command ; and, 
 moreover, this is to be executed on a man already in 
 jail for the sin of being a witness ! Thus General Wil- 
 kinson has incorporated himself with all Hall's acts. 
 
 But Wilkinson connects himself further in these pro- 
 ceediggs, which are all illegal from beginning to end. 
 Stimulated by Wilkinson's oath, his agents put, Knox in 
 confinement ; t and Knox was removed by a military 
 order, from an officer under the command of Wilkinson, 
 on board of a vessel under the control of this comman- 
 der-in-chief ; so that the outrage against Knox was com- 
 menced by his imprisonment on shore, and consummated 
 by his imprisonment on sea; and both contrived by Wil- 
 kinson. The same commander-in-chief has drawn money 
 from the military chest, for the purpose of aiding him in 
 these unlawful transactions. Sir, you can not view any 
 part of this case, without viewing the same military 
 features strongly marked; General Wilkinson as the 
 principal actor, as a military character, and for military 
 purposes. Wilkinson most assuredly considered himself 
 as possessing the most positive power over this vessel : 
 because he authorized Captain Gaines to offer him a pas- 
 sage in the vessel ; and how could he give such an au- 
 thority, if Read was not under his command ? Wilkin- 
 son was the effective commander of this vessel. Observe, 
 sir, if you please, the order which Gaines gives. It is a 
 written order, in a military style, delivered to Sergeant 
 Dunbaugh, commanding him to take this man into cus- 
 tody. He directs him not as a deputy marshal, but as 
 Captain Gaines, to take possession of Knox ; and he ad- 
 dresses him, not as an individual obliged to obey a mar- 
 shal, but as Sergeant Dunbaugh, bound to obey him as 
 his military superior officer ; and no permission is given 
 to Knox to go on shore, but through Wilkinson. The 
 spirit of Wilkinson appears through the whole of this 
 business. The genius of Wilkinson is apparent in every 
 stage of the transaction. I was at no loss at all, when I 
 saw the letter of the attorney-general directing so many 
 subpoenas to be put into Wilkinson's hands, to perceive the 
 object. What authority could the attorney-general con- 
 fer on Wilkinson? I had no hesitation, on reading this
 
 MOTION FOR AN ATTACHMENT. 299 
 
 letter, to conclude that the intention was, to enable him 
 to effect by force, the removal of such persons as he could 
 not persuade to come, voluntarily. I refer to the fact : it 
 is acknowledged and can not be denied. [Here Mr. Hay 
 interrupted him ; he insisted that the letter should be 
 read, and that it would show that Mr. Randolph was in- 
 correct.] Mr. Randolph waived the reading of the letter ; 
 but appealed to the facts, and insisted that his inference 
 was justified by the testimony. He then proceeded. Is 
 it not singular, that subpoenas in a civil case, should be 
 confided to the military commander-in-chief ? Did it 
 not seem to tell him, that he was to use these subpoenas 
 with some degree of authority, and did he not at least ar- 
 rogate that authority to himself? Why did General 
 Wilkinson mention to Mr. Gaines the necessity of sum- 
 moning Mr. Knox, in recommending to him to find out 
 who were witnesses? Who, I again ask, carried the affi- 
 davit of Wilkinson to Judge Hall ? Mr. Gaines has stated 
 that he dicl not ; who, then, carried it but General Wilkin- 
 son himself? Does not this still go to show, that there 
 was not the minutest thing that General Wilkinson would 
 omit for this purpose? , There was a military temper, a 
 military spirit displayed by General Wilkinson through- 
 out the whole transaction. Why did he consult an attor- 
 ney? Was he a marshal ? Was military money put into 
 his hands to employ a lawyer? No, sir, but because he 
 viewed the subject in a military form. Gaines tells us 
 that Wilkinson must have known that Knox was carried 
 on board unwillingly; yet, notwithstanding he knew this 
 and that Knox was anxious to come on shore, he suffers 
 him to remain in the pinnace of a ship in the hold ; per- 
 haps to mess with degraded people; torn from his family 
 and his private concerns, without the common comforts 
 usually prepared for a sea voyage : an exile from his 
 country, without money, without friends. Mr. Gaines 
 states, that he, Wilkinson, had observed to him, that 
 there were some unwilling witnesses (such as he must 
 coerce by military rigor) ; and Mr. Graham tells you, that 
 he consulted him on the mean* of sending forward un- 
 willing witnesses. See, then, the solicitude of Mr. Wil- 
 kinson, through the .whole of this business ! He began ; 
 he consumated everything. Dunbaugh was applied to,
 
 300 TRIAL OF AARON BURR. 
 
 for the liberty of Knox, and it was refused. But Wilkin- 
 son took his parol of honor from him at Hampton ; none 
 but Wilkinson could give him liberty. We have seen 
 him in the character of a military tyranj:. We shall now 
 find him using the blandishments of a courtier. He is 
 particularly complaisant and friendly ; offering him 
 money, and any services in his power, in order to relieve 
 his wants. At one time he asks him, " Are you not afraid 
 of seeing me, after what has happened to many ?" At 
 another, he asks him in a familiar way, if he were not a 
 freemason ; and thus profaned that institution, by at- 
 tempting to impose on him the seal of secrecy. Terror 
 was used to frighten him ; and when he was found too 
 firm and stubborn, cajoling and complacency were used. 
 The means of operation were changed as he found it ex- 
 pedient. It is immaterial in what order these things 
 took place. It is certain that they all took place. Vari- 
 ous passions played in his breast ; sometimes softness, 
 sometimes severity. 
 
 Sir, I beg to deduce from these facts, this conclusion : 
 that General Wilkinson caused the arrest and imprison- 
 ment of Mr. Knox ; that Wilkinson executed it ; and 
 that it was done for the purpose of compelling Knox to 
 give testimony. Though he was privileged as a witness, 
 Wilkinson, by his own authority, had him again impris- 
 oned on board the vessel : and this, also, for the same 
 purpose of compelling him to give testimony, and of in- 
 terrupting the free course of evidence. These are the 
 principal facts upon which an attachment ought to issue 
 against Generel Wilkinson. Sir, I will not stop to look 
 at the insinuations against Knox. He had been sum- 
 moned by the United States, and was waiting to 
 arrange his private affairs, to enable him to depart for 
 this place. The account which Knox has given, is just, 
 candid, and unexceptionable ; and shows that he was 
 very much disposed to give his evidence. It is truly a hard 
 case, that he should be solicited by the United States to 
 come as a witness, and when he does come, that his char- 
 acter should be assailed as participating of something 
 criminal. Facts, then, are fixed as to General Wilkinson. 
 But it may be asked what motives General Wilkinson 
 could have for his conduct ? It was said the other day,
 
 MOTION FOR AN ATTACHMENT. 301 
 
 that he was the pivot of the prosecution. The prosecu- 
 tion was not hazarded before his arrival : not a single 
 witness was sent to the grand jury till he came. The 
 grand jury had to wait several weeks for his arrival. We 
 have already had occasion to notice the stake which 
 General Wilkinson had in the issue of this prosecution. 
 Sir, the truth is, and it can not be concealed, that the names 
 of Wilkinson and Burr are antipodes to each other by the 
 act of Wilkinson himself. Wilkinson declares, and the 
 fact is. that he never will regain his meridian brightness, 
 unless he can throw Mr. Burr into darkness. It is his duty 
 to take care, that like some mock god he fall down from 
 his imaginary glory, tumbling among ruins and into a 
 chaos of rubbish, which he himself has created. 
 
 Thus we have established what Wilkinson has done, and 
 what were his 'motives. Let me now show, that these 
 facts do amount to a contempt of the court. From the 
 authorities which I will read, it will appear that no force 
 or violence should ever be unnecessarily used, in making 
 arrests : and of course, every species of unnecessary force 
 in compelling witnesses to attend, to give depositions, 
 or in executing any other process, amounts to a contempt 
 of the court. Hawkins, in book 2, section 2, lays down this 
 general principle, that " it seems clear from the general 
 reason of the law, that all courts of record have a discre- 
 tionary power over all abuses by their own officers in the 
 administration or execution of justice." And in section 3, 
 he lays down these general principles, that " it is every 
 day's practice to grant attachments for misdemeanors of 
 this kind ; as, for using needless force, violence, and terror, 
 in making an arrest ; or by breaking open doors, where by 
 law it is not justifiable, and there is no plausible excuse 
 for doing it ; or treating the persons arrested basely and 
 inhumanly, or keeping them in custody, till they pay 
 money ; or making an arrest without due authority." 
 And in section 12 of the same book, after having 
 spoken of punishing by attachment the misconduct of 
 attorneys, he says : " Where the court may proceed in 
 the manner above mentioned, against other officers of 
 the court, there being scarcely anything of this kind to be 
 met with in the books, I shall only observe, that it seems 
 clear from the general reason of the law, which gives all
 
 302 TRIAL OF f AARON BURR. 
 
 courts of record a kind of discretionary power in the gov- 
 ernment of their own officers, that any such court may 
 proceed in such manner [he is speaking of the process 
 of attachment] against any such officer, not only for 
 refusing to execute its commands, or for executing them 
 irregularly, remissly, or oppressively; but also for all 
 kinds of oppression or injustice done by them in the ex- 
 ecution of their offices, or by color of them." And, in 
 section 41, of same book, he says, that " making use of 
 the process of the court in a vexatious manner "and. 
 in section 42, that " using it to serve the purpose of op- 
 pression or injustice, are both punishable by an attach- 
 ment." Here, then, is a universal principle, that for all 
 kinds of oppression or injustice, done by the officers of 
 courts of justice, either in the actual execution of their 
 offices or by color of them, they may be pro'ceeded against 
 by attachment. If we do not produce a case in point, it 
 is for the reason mentioned by Hawkins, that there is 
 scarcely anything of this kind to be met with in the books, 
 and therefore the general principle must be resorted to. 
 Where the public. necessity and the cause of justice re- 
 quire that a party should be arrested by an officer, the 
 officer must use no violence or terror in making the ar- 
 rest ; he must be guilty of no act of oppression in any 
 case. If no violence or oppression ought to be used, 
 where an arrest is authorized, how much more must the 
 law discountenance such violence and oppression towards 
 those who are not liable to be arrested ? The oppression 
 practiced upon Mr. Knox in this case, has been by color 
 of the process of this court ; and those guilty of it ought, 
 on the principles here laid down, to be punished for it. 
 This is a rftore violent case than any mentioned by this 
 author. What would Hawkins have said to this case, 
 where we see a man, who was regularly summoned as a 
 witness, to attend a court of justice, seized at New Or- 
 leans, upon the affidavit of a military officer, dragged 
 before a person who is called amagistrste, for the express 
 purpose of being held to bail: required by this magis- 
 trate to give bail for his appearance next day, in an enor- 
 mous sum, in a place where he is unknown ; then thrown 
 into jail and confined for three days, in a sultry climate, 
 among negroes and felons ; then taken out by a military
 
 MOTION FOR AN ATTACHMENT. 303 
 
 authority, placed under a military guard, and by a man 
 who, though a military officer, had the name of a deputy 
 marshal conferred on him, for the purpose of executing 
 this tyrannical act, and that- gentleman himself acting in 
 this double capacity under the authority of General Wil- 
 .kinson ; then forced on board a vessel, and continued under 
 restraint, till he gets within a few miles of Richmond ; and 
 all this, without so much as the pretense of any cause or 
 crime, and under the control of Wilkinson. I ask, what 
 would Hawkins, or other eminent English writers, have 
 said of a case of such flagrant oppression ? Is not this 
 the use of needless force, violence, and terror ? Was not 
 this an act of inhuman treatment to Knox ? Was not the 
 process of this court abused, for the purpose of oppres- 
 sion and injustice? Was not vexation practiced under 
 qplor of this process? And do not the offenses com- 
 mitted, come completely within the definitions of 
 Hawkins, as punishable by attachment ? Is not this 
 arbitrary and illegal arrest, contrary to all practice and 
 experience, in cases of witnesses in that country ? There 
 has been no example in this country, of confining a man 
 for the purpose of compelling him to give testimony. 
 He only enters into a recognizance to appear in court to 
 give testimony. No compulsion or influence is to be ex- 
 ercised over a witness; it is -forbidden by the law. All 
 temptation to perjury is taken away, as neither threats 
 nor promises, rewards nor punishments are permitted by 
 law. In the examination of a witness, no force is to be 
 used. On the contrary, when a witness has been sum- 
 moned, and has not failed to attend, there is no pre- 
 sumption or anticipation, that he will not obey the 
 summons ; there is, consequently, no compulsion to be 
 exercised on him. Voluntary affidavits can not be re- 
 strained. They are not free from exception, because 
 they are liable to be abused ; and are not legal evidence 
 on a regular trial, because taken ex parte ; but many 
 people will go before a magistrate of their own accord, 
 and make such affidavits. No person can prevent it. 
 But when these ex parte affidavits are spoken of, it is 
 always meant that they are voluntary. A forced affidavit 
 never was heard of before. Let us look at the power 
 which the marshal has had on such occasions. The 33d
 
 304 TRIAL OF AARON BURR. 
 
 section of the judicial act points it out. i vol. Laws of 
 the United States, p. 73 : " If such commitment of the 
 offender, or the witnesses, shall be in a district other than 
 that in which the offense is to be tried, it shall be the 
 duty of the judge of that district where the delinquent is 
 imprisoned, seasonably to issue, and of the marshal of. 
 the same district to execute a warrant for the removal of 
 the offender, and the witnesses or either of them, as the 
 case may be, to the district where the trial is to be had." 
 What- is the power which the magistrate has by this 
 clause? It is unnecessary to inquire into the extent of 
 it. He had no such power as is here contended for. 
 The party accused was not committed by him, nor brought 
 before him, nor imprisoned in his district. He had, 
 therefore, no right at all to confine the witness for the 
 purpose of transporting him to the district where the 
 trial was to be had ; and yet, that was done by Mr. Hall, 
 notwithstanding the plain and explicit terms of the law 
 that the duty of "the judge of the district, where the 
 delinquent is imprisoned, is to issue a warrant, and of 
 the marshal of the same district to execute it, for the re- 
 moval," &c. This Judge Hall well knew, that the ac- 
 cused was not imprisoned in his district ; that he had not 
 committed him ; and that, therefore, under this law, he 
 had no right to issue such a warrant ; and as he could 
 not lawfully grant, so the marshal could not lawfully 
 execute, such a warrant. The act was, therefore, unlaw- 
 ful, and every person knowingly and actively concerned 
 in it, or otherwise contributing to it, was particpating 
 in the offense, and guilty of a contempt of the court. 
 
 I am astonished at the boldness of this judge, in sup- 
 porting the arbitrary military order of the general ; for 
 such it assuredly was. Affidavits, sir, they called for as 
 gluttons; their greediness is never to be satisfied. But 
 why did they ask for them ? What was their object in 
 so doing ? Was it not to entangle their prisoner, by 
 compelling him to make an affidavit, which he could not 
 afterwards retract ? The witness once committed by his 
 oath, struggles to adhere to what he has sworn to. The 
 printed interrogatories pin him down to a particular 
 point. Whatever may be his wishes or feelings, he must 
 adhere to them. Great strength and presence of mind, 
 are not always to be expected in a person, placed as Mr.
 
 MOTION FOR AN ATTACHMENT. 305 
 
 Knox was at New Orleans. That strength of mind, 
 which will adhere to the exact truth under every pres- 
 sure and difficulty, is not to be found in every man. The 
 witness is not to be always at hand to explain his affi- 
 davit. Mr. Knox was in a strange country, friendless, in 
 want of everything, and subject to the military despotism 
 of General Wilkinson. From his situation it might be 
 supposed, that the affidavit which he would give would 
 be different from what it would be, if given in a court of 
 justice, where law and order are preserved, and testi- 
 mony is not extorted at the point of the bayonet. This 
 was the object of the printed interrogatories; and of ob- 
 taining the affidavit of Mr. Knox: for they calculated, 
 that a regard for his own reputation would prevent him 
 from contradicting any fact to which he' had previously 
 deposed. He might hesitate between the love of truth, 
 and a regard for his character. He might greatly prefer 
 a candid detail of facts ; when by showing him his former 
 testimony, and reminding him that want of uniformity in 
 his evidence would expose him to public contempt, his 
 real regard to the truth would be shaken, so as to make 
 him confirm his former extorted statement. Sir, there is 
 not a more dangerous power, that can be exercised on 
 the part of the government, than that of forcing a man 
 a man to give an affidavit taken ex parte, by a man who 
 will not be careful to state facts as intended by the wit- 
 ness, but as tending to establish the object, or to favor 
 the views of those who take it. He may wish to retract ; 
 but when his deposition is brought before his eyes, he 
 will be unable. Sir, what must be the force of that 
 man's mind, who, unskilled in courts, unskilled in the 
 world, can give a correct statement of facts, when con- 
 fronted in court with his declarations before committed 
 to p^per, and can firmly explain and give a narration dif- 
 ferent from it? Who can be safe, if proceedings like these 
 should be tolerated ? We are told, that the bill of rights 
 gives to the accused the right of being confronted with 
 his accusers and witnesses. That privilege would be 
 evaded in a case like this. The witness would be un- 
 equally matched in meeting the terrors of a slanderous 
 world. Yes, he would be terrified by the censures of an 
 inconsiderate and defamatory world. As long as the law 
 could not reach him, he would not hesitate between ad-
 
 3 o6 TRIAL OF AARON BURR. 
 
 hering to his former deposition, and what he would know 
 secretly within himself to be correct. I trust, that what- 
 ever may be the fate of this motion, you will not suffer 
 such encroachment on the privileges of witnesses ; that 
 you will not suffer them to be intimidated, and overawed 
 by art and dexterity, from telling the real truth ; or com- 
 pelled to give coloring to circumstances contrary to 
 their meaning. Sir, we can not do better than to adopt in 
 the law, the principle in the Lord's prayer: "Lead us not 
 into temptation." This improper mode of extorting ex . 
 parte testimony, will cause a man to have a conflict in 
 his own mind, between the truth of which he is conscious, 
 and what he may have hastily been made to declare. We 
 contend, that neither the proceedings in a cause, nor the 
 witness should be interfered with, and that to do either 
 amounts to a contempt of the court. In support of these 
 principles we adduce several respectable authorities. 
 5th Viner's Abridgment, pp. 444, 445,446. In 2d Atkin, 
 469, it was determined to be a contempt of the court, to 
 publish a libel against a p^irty, or an advertisement re- 
 flecting on the witnesses in a cause. And it was ob- 
 served by that great chancellor, Lord Hardwicke, "That 
 nothing was more incumbent on courts of justice, than 
 to preserve their proceedings from being misrepresented ; 
 that nothing was of more pernicious consequence, than 
 to prejudice the minds of the public against persons con- 
 cerned as parties-in a cause before it was finally heard." 
 It was also observed by him, that " to abuse the parties 
 in a cause, or to prejudice mankind concerning it before 
 it was heard, was a contempt of the court as well as to 
 scandalize the court itself." And in 2d Vezey, 520, it 
 was adjudged, that to publish an advertisement concern- 
 ing proceedings in court was a contempt of the court. 
 In the case here referred to, a man was committee! for 
 offering .500 to prove a fact, though the court had al- 
 ready decided the point. The principle is the same in 
 the case now before the court as in those cases. Why 
 is the publication of a libel against a party in a 
 cause depending in a court of justice, or of an advertise- 
 ment reflecting on the witnesses, deemed a contempt of 
 the court ? Why are all publications to inflame or preju- 
 dice the public mind prohibited ? Because they tend to 
 prejudice the public mind against the parties, or the pro-
 
 MOTION FOR AN ATTACHMENT. 307 
 
 ceedings in the cause ; because they obstruct the free ad- 
 ministration of justice; because it may influence the 
 minds of the jury, who may have to try the cause, and, 
 consequently, may occasion an unjust determination. 
 Why are such rules of caution adopted in taking evi- 
 dence, but to prevent false swearing'' Why are needless 
 force and violence in making arrests forbidden, and why 
 is force towards a witness censured by the law? Because, 
 in these cases, the mind is not left free, though it ought 
 to be free. Compare these cases with the severity prac- 
 ticed in this case. The minds of the public may not be 
 prejudiced, but the mind of the witness was not free : he 
 was under temptation to adhere to what he had said. He 
 may, indeed, not have been under terror; perhaps the 
 firmness of his mind may have supported him, and pre- 
 vented him from being alarmed: but terror was rigidly 
 employed by military authority. He was arrested and 
 thrown by a military officer into jail ; was escorted by a 
 military officer ; forced on board a military vessel, under 
 the command of the same military officer, and there fora 
 long time restrained by the same military officer. If 
 there can be a case of greater enormity than this, it has 
 eluded my search. If there were nothing in this case 
 more than the improper and unjust effort to obtain the 
 affidavit of Mr. Knox to commit him, it would be suffi- 
 cient to constitute a contempt of the court, and would 
 be punishable by attachment: but it is rendered further 
 criminal by the force used to obtain it. The liberty of 
 the witness was invaded. A free citizen "of the United 
 States is dragged by corporeal force and thrown into 
 jail, for the crime of being a witness; and this within the 
 knowledge, and at the instigation of General Wilkinson. 
 I hope I shall not be told, that there was an association 
 with certain conspiracies, which rendered these rigorous 
 measures necessary and proper. There was no connec- 
 tion proved between Knox and any conspiracies. Why 
 insidiously attack a man as a witness, who is to be de- 
 nounced as a criminal? I hope that no man. who is not 
 guilty of a crime, will be caught and cooped as a jail-bird, 
 and compelled to receive crumbs of bread through the 
 grate of a prison, at the will of a military commander, 
 especially when I recollect what is to be superadded
 
 3 o8 ' TRIAL OF AARON BURR. 
 
 that he is to be transported twelve or fifteen hundred 
 miles, not for trial or suspicion of an offense, but for the 
 iniquity of being supposed to be a witness, accidentally 
 acquainted with facts. What are to be the consequen- 
 ces, if such doctrines as these are to be tolerated ? That 
 il is only in the breast of a military commander to trans- 
 port any, the most peaceable citizen, if he be only sup- 
 posed to be a witness, en board a vessel, under military 
 restraint, at any season *bf the year, however inclement, 
 and any distance, without a crime, or the suspicion of a 
 crime ? We who have so often seen and read the Dec- 
 laration of Independence, must feel indignation at the 
 oppression practiced upon Mr s Knox. This is one of 
 the acts of oppression, we are told, that the British 
 government had committed against us. "Transporting 
 us beyond seas, to be tried for pretended offenses," is 
 stated in the Declaration of Independence, as one of the 
 principal acts of misrule which roused us to resistance, 
 and to declare ourselves independent. To be free from 
 such aggression on our rights was a fundamental part of 
 the basis of our independence. This was not a mere 
 ebullition of patriotism for the purpose of exciting popu- 
 lar frenzy ; nor one of those artifices used to increase 
 the public discontent, or to swell the catalogue of the 
 crimes committed by Great Britain. No, sir, this par- 
 ticular injury alleged in the Declaration of Independence 
 was a real, an' enormous grievance, which was execrated 
 by the wisest men of our country. Exemption from it 
 was founded in human rights, and was one of those 
 blessings of liberty to which we had by nature a right, 
 and which, having secured, we ought ever to be jealous 
 6f preserving. This invaluable privilege we claim as 
 citizens. It is a demand which we make of the govern- 
 ment for protection, and it must be guarded by the 
 court, unless some of those doctrines, which we have 
 long reprobated in a military despotism, shall be sanc- 
 tioned, to destroy our rights. Even then, when criminals 
 were transported, the innocent were left unmolested. 
 What shall we say to this aggravated case, when the 
 gentlemen themselves must admit, that this man is in 
 nocent ? 
 
 I will not enter into those feelings that might be de-
 
 MOTION FOR AN ATTACHMENT. 309 
 
 scribed, but I feel horror when I reflect that an individual 
 innocent and inoffensive, engaged in locating lands for 
 *he subsistence of himself and family, should be stopped 
 t'rom completing his laudable undertaking, and taken up 
 far from his home, his family and friends, and transport- 
 ed as a witness twelve hundred miles, to the injury and 
 derangement of his views and domestic concerns. I 
 hope, sir, that transportation will be reserved for the 
 guilty. If these things be done and tolerated in the 
 green tree, what shall not be tolerated in the old-? 
 What is to be the effect of a precedent like this? Who 
 can foresae the consequences, if it be not repressed ? 
 This particular case may lead to dreadful events, and by 
 artificial means become a tempest. But remember, sir, 
 you have foresight, and can judge of the practical effects 
 of injurious precedents ; and if the unjust proceedings 
 on this case be not severely censured and punished, 
 though we may not suffer, our children will repent of it. 
 But this act is said to have been extra-territorial, and 
 that W T ilkinson was not engaged in the whole of it : and 
 therefore, it is pretended', without the control of the 
 court. This is true, as far as Mr. Hall is concerned. We 
 can not operate on* him here. If it were so at the be- 
 ginning, see how it has passed from New Orleans to 
 Richmond. Wilkinson was engaged in it at the begin- 
 ning, at the second stage, and at James river itself. The 
 spirit of Wilkinson prevades the whole. He is every- 
 where seen, not merely as an integral part, but as the 
 first cause of the whole. Is this court to suffer its 
 witnesses to be abused without its jurisdiction? But I 
 say, that it was not without the limits of the jurisdiction 
 of this court. t There must be a. power in every court to 
 procure the attendance of witnesses ; and wherever that 
 power extends, the witnesses are protected by it par- 
 ticularly if the man who has abused them, be present 
 before the court. General Wilkinson is present, and may 
 be animadverted on. I will not pretend to say what 
 effect this may have on his character ; nor can it affect 
 the right to examine into his conduct ; because he ought 
 to have preconceived the consequences before he com- 
 mitted the acts. The man who interposes the sword in 
 ^upport of the civil authority, ought to have the patriot-
 
 310 TRIAL OF AARON BURR. 
 
 ism to acquiesce under the consequences, let them be 
 what they may. The prying world may ask, whether 
 Wilkinson is to be suppoited in such outrages? in 
 practicing on the necessities, fears, and terrors of the 
 witnesses ? Whether he is to be supported in the duress 
 which prevailed on land and water? and in (what will 
 be more fully discussed hereafter) the improper, if not 
 felonious, taking of letters from post-offices? These 
 questions will be asked after the testimony is known. 
 The answers will be awful to him. The consequences of 
 his violent and outrageous conduct must be awful to 
 him. He will find himself divested of his military 
 array and parade, with which he used to be surrounded 
 at New Orleans, to stand here like a common individual. 
 He must then answer those questions, and account for 
 his invasions of the rights of his fellow-citizens. The 
 magnitude of the offense calls for exemplary punishment. 
 I insist on the motion that I have made, that an attach- 
 ment do issue against General Wilkinson, for the various 
 reasons I have stated. He is here himself, and if he be 
 innocent, he can answer and purge himself on oath, of 
 the guilt imputed to him; and, if guilty of abuse of 
 power, iet him be punished in the proper manner. 
 
 Mr. Martin said that he would make a few additional 
 observations; that he would not enter into a general de- 
 tail of the subject then, but would adduce some ad- 
 ditional authorities, to show that the acts at New 
 Orleans were illegal, and that the magistrate had 
 no authority for what he did. If it were pretended 
 that the act of Congress justified it, gentlemen were 
 much mistaken. [He then read Graydon's Digest of 
 the Laws of the United States.] The 33rd section of 
 the judicial act must be that on which they relied; 
 that witnesses examined under the circumstaces there 
 stated may be committed, but that this law extended only 
 to the magistrate before whom the arrested person was 
 brought to be examined ; that it says, " it shall be the duty 
 of the judge of that district where the delinquent is im- 
 prisoned, to issue a warrant, &c." ; that Hall did not 
 commit Mr. Burr, who was seized and transported more 
 than a thousand miles, was brought hither, examined 
 here, and recognized to appear this term ; that the mag-
 
 MOTION FOR AN ATTACHMENT. 311 
 
 istrate had no power to examine the witnesses at all, 
 except where the accused person was brought before him 
 to be examined. That 2 Hale's Pleas of the Crown, pp. 
 51 and 285, and Mac Nally, 314, prove that Hall had 
 not this authority. Those authoritities state, that where 
 a crime is committed in the county of B., and the crim- 
 inal is arrested in the county of C., the magistrate 
 before whom ha is brought to be examined in the county 
 of C. has really no original jurisdiction over him, nor 
 can his examination be read on his trial, though from 
 the necessity of the case, and to preserve the peace, he 
 has a consequential jurisdiction ; and can examine and 
 commit him in order to be sent to the proper county. 
 But that here, as the party accused was not brought 
 before Hall, he had no power whatever. He had neither 
 original nor consequential jurisdiction. Everything he 
 did at New Orleans, at the request of General Wilkin- 
 son, was perfectly illegal and extrajudicial ; but that 
 perhaps it might be said, that state necessity would 
 justify what the law did not authorize. On this subject 
 he referred the court to what was said by one of the 
 most celebrated judicial characters of the British judi- 
 ciary, Lord Cambden, 3 State Trials, 320. He referred 
 also to i State Trials, vol. 7, 180. 
 
 Mr. Hay. He is anticipating arguments which we 
 shall never use. 
 
 Mr. Martin quoted 3 State Trials, 8th article of the 
 impeachment of Sir Robert Beckly ; I vol. 709, 710, 
 711, 716, 717, 2 State Trials, 306, vol. 12; 7 State Trials, 
 306. 
 
 Mr. Wirt. I shall not trouble you to take notes. 
 The short question is, whether General Wilkinson be 
 guilty of a contempt, and ought to be attached ? We 
 proposed that the court should decide at once, without 
 any observations on either side ; but gentlemen insisted 
 on an argument, and they have had it. Our impressions 
 are, that the evidence is perfectly clear ; and we are 
 willing to submit the question on the argument already 
 heard. 
 
 Mr. Burr's counsel insisted to speak further. 
 
 Mr. WickJiam. All questions are very plain to counsel 
 on their own side. They may be mistaken. Though it
 
 3i2 TRIAL OF AARON BURR, 
 
 may not be perfectly clear on our side, yet I think I 
 can convince the court, that on an examination of the 
 law and the facts, the attachment ought to issue. 
 
 Mr. Mac Rae. I regret that so much of the time of 
 the court is to be consumed on every point. I confess 
 that my hopes were, that our offer to submit the case 
 without discussion, would have been agreed to ; but as 
 they insist on an argument, they must *be gratified. I 
 hope that I may be permitted to say, that in the whole 
 course of my short practice, I never read or heard of a 
 case similar to that now before the court. The motion 
 as to its foundation is " sui generis" No motion of a 
 similar character or nature can be found in the annals of 
 forensic proceedings, either in England or in this coun- 
 try. If there be any record of any such motion, I have 
 been unable to find it, after the most industrious re- 
 searches. Mr. Randolph, sensible of this, thought 
 proper to read a passage from 3rd Hawkins, to show that 
 such cases might occur, for which no precedent could be 
 found ; and that in such cases, the court was to decide, 
 " according to the general reason of the law." 
 
 It was deemed proper to state, as some kind of apol- 
 ogy, for the unmerited attack on General Wilkinson, 
 that no precedent could be found to justify this applica- 
 ti4n to the court. Before I shall reply to the animad- 
 versions on his character, I beg leave to observe, that 
 General Wilkinson is doubly protected by the law of the 
 land from any danger from this motion, even' admitting 
 that the charges against him are true, which is utterly 
 denied. The charge against him is, that he has ob- 
 structed the administration of justice in the cause of the 
 prisoner. He is said to have obstructed the administra- 
 tion of it by two distinct acts: First, by extorting testi- 
 mony from Knox, on this subject : Secondly, by forcibly 
 bringing him round from New Orleans to this city, to 
 give evidence here. If these charges were both true, 
 they would not warrant the motion to attach General 
 Wilkinson. I shall by and by prove them to be un- 
 ;true. But suppose them, for the sake of argument, to 
 be true. If the offense have been committed at all., 
 according to the allegations of those who have made 
 this motion, it has been committed at New Orleans.
 
 MOTION FOR AN ATTACHMENT. 313 
 
 For any real offense committed at New Orleans, a person 
 is not answerable, before this court, because that place 
 is not within its jurisdiction. I should deem itan insult 
 to this court, to dwell on such a topic, or to use much 
 argument to prove that an offense, committed out of the 
 jurisdiction of this court can not be judicially noticed by 
 it. But suppose the offense to be done within the lim- 
 its of Virginia, and of course within the jurisdiction of 
 this court. General Wilkinson, even in that event, would 
 not be answerable in this form ; because he appears as a 
 witness, before the court, in obedience to its subpoena, 
 and a witness is privileged from arrests ; he can not be 
 arrested for any act of this description. 
 
 In the ist vol. of the Laws of the United States, p. 74, 
 it is 'enacted, " That the laws of the several states, except 
 where the constitution, treaties, or statutes of the United 
 States, shall otherwise require or provide, shall be re- 
 garded as rules of decision, in trials at common law, in 
 the courts of the* United States, in cases where they ap- 
 ply." There is no particular direction given in the laws 
 of the United States, as to the privileges of witnesses; 
 of course, whenever they come in question, it will be 
 proper to inquire in the acts of the legislature of Virginia, 
 how extensive their privileges are. In the revised code 
 of the Laws of this state, p. 278, it is enacted, " That 
 witnesses shall be privileged from arrests, in all cases ex- 
 cept treason, felony, and breaches of the peace during 
 their attendance." The only cases in which a person 
 who is a witness can be arrested, are treason, felony, and 
 breaches of the peace. Here we might safely rest his 
 defense ; but every step he takes, as a soldier and 
 patriot, he travels on solid ground. I trust that this 
 court will say, that instead of obstructing "the administra- 
 tion of justice, or deserving the gmallest censure, for 
 what he has done in this case, he has deserved well of 
 his country, and merits the highest encomium. When 
 he looks back to these transactions, and the part he acted, 
 as well towards Knox as to others, he will see no 
 cause to blame himself for anything he has done in 
 . public or private ; but will feel that pride which conscious 
 innocence never fails to inspire. He has risked his for- 
 tune, his life, and his fame, to save his country from
 
 314 TRIAL OF AARON BURR. 
 
 audacious treason, which but for him, might have ended 
 in the subversion of the government, and destruction of 
 the liberties of his country. I trust, and he expects, 
 that his country and this court will examine and appre- 
 ciate his conduct, and will bestow on him that reward of 
 praise, which his praiseworthy deeds demand. 
 
 Sir, Mr. Randolph let out an important secret. The 
 gentlemen finding that there is no evidence to bear them 
 out in their illiberal attack on the character of General 
 Wilkinson, intimates that they will resort for testimony 
 against him, to the very man who is thus attacked ; that 
 they will call on him to answer their interrogatories. Is 
 this correct? Has Mr. Randolph's extensive reading 
 taught him, that, instead of proving General Wilkinson's 
 guilt, he shall be,condemned out of his own mouth?- 
 
 Here Mr. Wickham interrupted Mr. Mac Rae, and in- 
 formecl him, that he had misunderstood Mr. Randolph 
 (who was then absent), who had taken the course, pointed 
 out by the court, and the chief justice explained it thus: 
 that the attachment must go, if the testimony were 
 sufficient to prove that it ought to be granted ; and then 
 the defendant must answer interrogatories; but that 
 without sufficient evidence, an attachment could not be 
 granted in any case. 
 
 Mr. Mac Rae I have examined authorities, and un- 
 derstand the regular course ; but I understood Mr. 
 Randolph to have said, that if the evidence amounted 
 only to suspicion, General Wilkinson must be called on 
 as a witness against himself, which would be illegal and a 
 violation of a sacred right. Here Mr. Mac Rae referred 
 to 1st Dallas's Reports, 328, in the case of the Com- 
 monwealth v. Oswald, and read part of the argument of 
 the counsel, and the opinion of the court, approving 
 thereof; and contended that the contempt must be 
 proved by disinterested witnesses ; and that this proof 
 must be clear and full ; after which proof, the defendant 
 has the privilege of purging himself from the imputed 
 offense. He then proceeded : The question then is, has 
 he committed this offense or not? Mr. Randolph says, 
 that not merely the evidence of Knox proves this con- 
 tempt, but that two witnesses, whom we have ourselves 
 improvidently introduced, have confirmed it. This con-
 
 MO TWN FOR AN A TTA CHMENT. 315 
 
 elusion is wholly unsupported by evidence. Destitute 
 of proof from beginning to end, the gentleman has beea 
 reduced to the hard and cruel necessity of heaping con- 
 jecture on conjecture, till he has conjectured that this 
 court will, without a particle of proof, conjecture and 
 grant their motion. Though I shall be followed by gen- 
 tlemen of unexampled talents and excellent memories, I 
 venture to affirm, that they will not be able to show, 
 that this motion ought to be granted, or even to excite 
 doubts. I must pass over some of that gentlemen's con- 
 jectures, without feeling any kind of disrespect for him 
 (I am disposed to treat him, and every other gentleman to 
 whom I am opposed, with respect). I feel myself com- 
 pelled to do so, because they do not appear to me to 
 merit a serious refutation. I shall, however, notice a 
 fe\v of them. First, he states a very important circum- 
 stance which he trusts will be conclusive with the court ; 
 that a military man was made, a deputy-marshal; and 
 that this was the result of a concert between Judge Hall 
 and General Wilkinson ; that they were secretly plotting 
 together to make it appear a civil, when in fact, it was a 
 military power. When Mr. Randolph formed his con- 
 jecture, he unfortunately forgot, that when he and Mr. 
 Graham were* deliberating on the way of bringing reluctant 
 witnesses to this place^ to give testimony in support of 
 the violated laws, he was only doing what he was bound 
 to perform in duty as an honest man. That he desired 
 to compel their attendance by legal means only ; that he 
 consulted Mr. Graham how to proceed ; that it was sug- 
 gested to him by Mr. Graham, that it would be proper to 
 see Judge Hall, and consult him ; and that Mr. Graham, 
 knowing that there was a misunderstanding between 
 Judge Hall and General Wilkinson, offered to consult the 
 judge himself, and did so. What then becomes of the 
 concert which is urged to have taken place between them ? 
 For it is said, that all were to be directed by General 
 Wilkinson. Did Mr. Randolph recollect this? Or did he 
 suppose that the court would attend to his statement of 
 secret plots and contrivances without proof to support it ? 
 You find that the fact is, that there was no concert between 
 them ; that they were separated by a previous misunder- 
 standing ; and that Judge Hall acted upon the applica-
 
 316 TRIAL OF AARON BURR. 
 
 tion of Mr. Graham. Away, then, goes this conjecture ; 
 in truth, so all must go: for he has no proof to support 
 any. But " a military man was made a marshal." 
 What of that? Who made him so? You recollect the 
 interrogatory put yesterday to Mr. Gaines. "Would 
 you have accepted of the deputation unless you knew 
 that it would be agreeable to General Wilkinson ?" 
 Gaines said three times on oath, that he had no previous 
 communication with General Wilkinson on the subject ; 
 that he was advised by Mr. Graham. Did not Mr. 1 
 Graham say that he had urged him to accept it ; and 
 that it was much against his inclination that he did 
 accept it? This conjecture also falls to the ground. It 
 is a poor prop ; but like the rest of the props, weak 
 and useless. 
 
 But " Captain Gaines acted contrary to law." Sup- 
 pose we admit (but which is not admitted), that Captain 
 Gaines did act contrary to law. What is that to General 
 Wilkinson ? Is he anwerablc for it? It was thought in 
 days of yore a hard rule, when theyvisited the sins of 
 the fathers upon the children, to the third and fourth 
 generation ; but it would be still harder to make General 
 Wilkinson responsible for the supposed misconduct of 
 Gaines. I have shown that there was no sort of connec- 
 tion between them. Gaines has declared there was none. 
 Gentlemen seem to wish to prove, that Gaines has done 
 what is unlawful, and then to impute without proof, the 
 whole to General Wilkinson. I believe the spirit of the 
 law justified what Captain Gaines did. [Here he read 
 Graydon's Digest of the Laws.] The words are such 
 as might have fairly induced the judge and Captain 
 Games to have acted as they did. The words are ex- 
 tremely broad, and comprehensive enough to cover this 
 very case. It is not certain, but it is at least extremely 
 questionable whether the law did not authome what 
 they did. But whether it did or not, is not material. 
 General Wilkinson and Captain Gaines are two distinct 
 men ; and General Wilkinson is not bound to answer for 
 the offenses or errors of another man. 
 
 Mr. Randolph then skips to Judge Hall ; and hia 
 judicial outrage is repeatedly charged to General Wilkin- 
 son. Why, sir, there was a misunderstanding between
 
 MOTION FOR AN ATTACHMENT. 317 
 
 them. The judge acted at the instance of Mr. Graham, 
 and not at that of General Wilkinson, who therefore can 
 not be answerable for it. After proving this error or 
 judicial outrage, as it is called, of the judge, they ought 
 to show a connection between them to have existed be- 
 fore. But, sir, Mr. Randolph discovers a very important 
 secret. He says that the act of congress compels the 
 removal of the party accused and the removal of the 
 witnesses together ; that in giving power to the judge to 
 remove the witnesses, it requires him at the same time to 
 remove the party accused ; that both must be removed 
 together. But if the party accused had been removed be- 
 fore, ought not the witnesses to be removed afterwards? 
 Because it does not come within the letter of the law, 
 would he not have a right to send on the witnesses? I 
 doubt whether that would be a correct interpretation 
 of the act of congress. It can not be reasonably sup- 
 posed, that as the removal of the witnesses was as much 
 intended as that of the party accused ; that ' if the 
 accused were removed first, the witnesses should not 'be 
 removed afterwards. I should suppose that the judge 
 might remove both at different times; that if he sent on 
 the accused before (from necessity or convenience), he 
 might send on the witnesses afterwards. But whether 
 the judge committed an outrage or not, is unimportant 
 to General Wilkinson. He was not bound to attend on 
 every step which Judge Hall had taken ; and if the 
 judge may send on the witnesses without the party 
 accused, it is to be intended, that he has fully executed 
 the law, until the contrary appear in a cause of his own, 
 in which he is a party, called on to account for his con- 
 duct, and in which he shall have an opportunity to vin- 
 dicate himself. But whether his construction of the law 
 be correct or not, is immaterial. Wilkinson is not amen- 
 able to this or any court, for any act of Judge Hall, or 
 any other officer. 
 
 But Mr.' Randolph has discovered a great secret, which 
 no body else has discovered ; which the most astute 
 men in the commonwealth could not find out : " That 
 it was a military order which was given by Gaines to 
 Sergeant Dunbaugh, to remove Knox from jail to the 
 vessel ; " and this is thought a proof that the whole
 
 3 i8 TRIAL OF AARON BURR. 
 
 was contrived by General Wilkinson ; and that the order 
 emanated from him. This is in the very teeth of the 
 evidence. Mr. Gaines being called on to say whether ho 
 had not. given it as a military order to. Dunbaugh, an- 
 swered explicitly in the negative ; that he had not given 
 it in that capacity. I saw the gentlemen looking atten- 
 tively at the order ; and I understood their motive to 
 be, to discover whether Gaines had signed it as captain ; 
 but when this order is seen, there is no signature of " cap- 
 tain " to it. He merely annexed his own name " Gaines," 
 which proves that he was not acting in a military character. 
 It is very probable that if he had been acting in that char- 
 acter, he would have signed his military title. It is cus- 
 tomary, I believe, to sign military orders with the title or 
 rank of the officers who give them ; and an officer of his 
 rank would have signed the order as " captain." If there 
 were any doubt ^before, that doubt could no longer exist, 
 after Captain Gaines has declared before the court, not 
 only that he did not give a military order, but that he 
 never did act under General Wilkinson, in that whole 
 transaction. He was called on repeatedly to say, whether 
 he had not given the order to Dunbaugh as his sergeant, 
 and in his military character ; and he as often denied that 
 he had commanded him as sergeant (though he under- 
 stood him to be a sergeant), but because he had obtained 
 his promise before to execute the order ; and if he had 
 not, he would have got some other person to do it. Sir, 
 if Gaines had been acting as a captain, and signing as a 
 military commander, would he have proceeded to ask a 
 favor as he did? Would a gentleman who understood 
 his duty, have gone to him, and asked him, "Will you 
 be pleased to do so? " No, sir, he would have enjoine'd 
 it as his duty: and his not doing so, proves that he acted 
 in a civil capacity; and this disproves this conjecture 
 also. 
 
 But General Wilkinson is a great criminal, because he 
 consulted the attorney-general of the district.' The out- 
 cry which had been raised against this valuable citizen 
 and soldier, gave him sufficient warning, in order to avoid 
 reproach, never to do an act of this nature, but by the 
 advice of persons learned in the law. Of course, when 
 General Wilkinson, instead of giving advice himself,
 
 MOTION FOR AN ATTACHMENT. 319 
 
 mentioned to those who were engaged to act for the pub- 
 lic that they should advise with the attorney-general 
 and another lawyer how to act ; it showed a disposition 
 to have nothing done but what the law warranted. Why 
 are their acts charged against him ? Is not this enough to 
 show, that the charge of violence and oppression is 
 wholly unfounded? If such conduct as this be censured, 
 I should suppose that it would be better to be silent, than 
 to give judicious and friendly advice. As Wilkinson was 
 not himselfa lawyer, he told those gentlemen, " Consult 
 the attorney-general, and other gentlemen learned in the 
 law, who will advise jrou how to act." Is it indeed crim- 
 inal to aid the government in a case where the govern- 
 ment and all Ameiica are interested ; and, instead of 
 giving advice to the persons called upon to act for the 
 public, to refer them to the best source of legal informa- 
 tion, the attorney-general, and another lawyer? I never 
 expected to hear such an objection urged against General 
 Wilkinson. This part of his conduct is strong and con- 
 clusive to show that he was determined that the laws of 
 his country should be the rule of his conduct. But it is 
 not to be wondered at, that sinking without evidence or 
 law to support them, they should catch at this straw, for 
 there is nothing but assertion and suspicion, all conjec- 
 ture and no proof. 
 
 But my friend Mr. Randolph, forgetting that he was 
 addressing this honorable court, and feeling as he does 
 , sometimes when he addresses gentlemen ill informed 
 about the laws of their country, endeavors to excite 
 sympathy, and tells you without proving it that General 
 Wilkinson threw him (Knox) into a ship ; that he was 
 torn from his family and friends and transported hither. 
 But he forgets the facts. What family had he in New 
 Orleans, and how long had he been there? He stated 
 that he went with Colonel Tyler down the river. [Here 
 Mr. Mac Rae repeated the substance of Mr. Knox's own 
 testimony relative to his going down the riyer to New 
 Orleans and staying there.] You will observe, sir, that I 
 am only .stating what he himself said yesterday. He was 
 dragged away from his country, and transported-. What 
 country? He only stayed two short months at New Or. 
 leans. But, alas! alas! He has suffered all these dreadfu;
 
 320 TRIAL OF AARON BURR. 
 
 calamities. This is the melancholy statement made to 
 help them out, but all without proof. We fear not its 
 effects. But, sir, General Wilkinson is a curious sort of 
 a man. He sometimes uses all the blandishments of a 
 courtier; sometimes he is the most cruel savage that 
 ever existed. Sometimes he talks of free-masonry ; and 
 all by fits and starts. By fits he is very kind ; and by 
 fits very cruel. But what evidence is there to prove all 
 this? Has Knox said that General Wilkinson treated 
 him cruelly? Does Mr. Graham say so? Np, sir. Was, 
 he maltreated on shore or on board ? The ship's provi- 
 sions were very good, and he was treated on board like 
 other people. Has Captain Gaines said that he treated 
 him very cruelly? Where did Mr. Randolph find ttys 
 evidence ? I hope he misunderstood the witnesses. Your 
 honors, who have listened patiently to the testimony, 
 know that these are only bold conjectures. Well, then, 
 after going through all these conjectures, and refuting 
 them, we come to another; that Wilkinson put him on 
 board, transported him, and brought him to Richmond ; 
 and this conjecture is equally destitute of proof. These 
 acts ought to be proved, before gentlemen indulge in 
 this freedom of speaking to the court of violence, 
 oppression, and tyranny. I do not wish to tire the court 
 by a recapitulation of all the evidence, but I will briefly 
 repeat the principal facts to show that General Wilkinson 
 had no agency in them. How was Knox first taken in 
 custody? Was it by General Wilkinson ? No; by the 
 sheriff at New Orleans. Before whom was he taken ? 
 Before Judge Hall ; a man who, we are told, was at vari- 
 ance with him. By whom was he committed ? By a 
 warrant from the same Judge Hall, executed by Captain 
 Gaines, in his civil capacity. Was this done by the direc- 
 tion of General Wilkinson? There is no evidence what- 
 ever of this fact. By whose orders was he carried on 
 board the vessel ? By the same deputy-marshal's request to 
 Sergeant Dunbaugh. By whom was he brought to Norfolk ? 
 By Captain Gaines, who has the honesty to confess that 
 he did it. Is it sense, or law, to attach General Wilkin- 
 son for an act which another confesses he has done, with- 
 out having consulted General Wilkinson on the subject? 
 But it is a most important object to affect General Wil-
 
 MOTION FOR AN ATTACHMENT. 321 
 
 kinson ; because he is summoned as a witness against the 
 prisoner. It has been often said by the counsel of the ac- 
 cused that he is a most important witness ; and if the course 
 pursued by those gentlemen can justify conjectures on 
 our part, we may perceive that they think him an all-im- ' 
 portant witness: for there is no step taken without some 
 obloquy cast on this respectable man. It was rumored 
 all over this town, that he would never dare to come to 
 it : that he would tremble to appear before Aaron Burr. 
 This soldier and patriot has shown that he can confront 
 Aaron Burr or any other man. The report before, and 
 the proceedings had against him since his arrival, have 
 but one object : and that is to excite suspicions against 
 his character. From the delay in his coming, even hon- 
 est men began to think that perhaps there was some 
 truth in what was said against him. But now that he 
 has come, and that this cloud of prejudice has been dissi- 
 pated, another must be conjured up. Not content with 
 attacking him for his own acts, they attack him for the 
 acts of others, in which he had no agency or concern. 
 Does not the court see the object of attacking General 
 Wilkinson? Has he done anything to obstruct the ad- 
 ministration of justice? Does the court believe that the 
 gentlemen themselves believe, that he has done any act 
 to obstruct the administration o.f justice? His great 
 crime, forsooth, is, that* he did presume to advise with 
 proper and well-informed persons, in order to make the 
 law his guide, in endeavoring to procure material evidence 
 for his country, in a case deeply affecting its interest ; 
 and for this high sin, he is charged with obstructing the 
 administration of justice. Whether he has done so or 
 not, the court will decide. I am confident they will de- 
 cide fairly and correctly. 
 
 The court is entitled to admiration for having so very 
 patiently heard all the arguments which have been de- 
 livered. It is right to hear everything that can be said 
 on both sides of every question brought before the court. 
 I wish it to be known, let the event be what it may, that 
 there never was a case in which there was less of perse- 
 cution, than this case against Aaron Burr. He has had 
 privileges that never were extended to any other man. 
 I rejoice that he has had those privileges : and we wish 
 26
 
 322 TRIAL OF AARON B URR 
 
 it to be known, that it is our desire, that he may continue 
 to have the benefit of all the privileges to which he can 
 possibly be entitled ; because it will completely repel the 
 unjust imputation of persecution. 
 
 Sir, shall I add anything more ? Is it necessary? But 
 let me ask, why has the prisoner made this motion ? 
 Has he taken out a subpoena, that General Wilkinson or 
 any other person has prevented from being served ? Has 
 any witness summoned for him, been prevented from at- 
 tending? Justice has been strangely obstructed in this 
 case ; not by stopping witnesses, but by bringing hither a 
 man who has been with Aaron Burr, and appeared to be 
 a material witness. There are many motives for believ- 
 ing, that this man was an important witness. The court 
 will recollect what he has already said. He was with the 
 accused, and was, from his situation, one of those to whom 
 the accused might have communicated some of his projects. 
 It has been said that there was no evidence of Knox's 
 materiality, though General Wilkinson made an affidavit 
 to that effect. The information given by Knox himself, 
 and the circumstances of the case, justified that affidavit ; 
 and in my conscience I believe him to be material, and 
 that when on his oath hereafter, on the trial, he will give 
 material testimony, if he disclose all he knows. 
 
 Mr. Randolph may move for attachments to- confine 
 all the people in jail, in defense of Aaron Burr, while lie 
 walks the streets unmolested. I do not know how many 
 motions are to be made, if this motion succeed ; and 
 they have already apprised us, that they had several 
 others to make. The next motion, I suppose, will be 
 against Mr. Perkins for taking up Aaron Burr. Even for 
 such a motion, there would be more ground than for that 
 now before the court. 
 
 I hope, sir, that for the length of time that I have tres- 
 passed on the patience of the court, I may be excused : 
 and that I may be also excused, if, by any inadvertent 
 expression, I have wounded the feelings of any gentle- 
 man ; which was far from being my intention. I merely 
 obeyed the impulse of duty, and I cheerfully submit the 
 the case to the court. 
 
 Mr. Benjamin Botts then addressed the court as fol- 
 lows :
 
 MOTION FOR AN ATTACHMENT. 323 
 
 The charge, on which our motion is founded is, that il- 
 legal means, invading the privilege of witnesses, tending 
 to the corruption of evidence, and materially to affect the 
 justice and dignity of the court, in the present prosecu- 
 tion, have been practiced by James Wilkinson, within the 
 jurisdiction of this court, so as to subject him to process 
 of contempt. 
 
 The first description of these illegal means, consisted 
 in rifling the post-offices, and the seizure of private papers, 
 upon searches, some of which are attempted to be used 
 against Mr. Burr ; and others are believed to have de- 
 prived him of the means of preparing for his defense, 
 through the mail. These acts of oppression would, 
 in England, have subjected any man to the heaviest 
 pains and penalties of the law. In the time of Lord 
 Camden, that great supporter of the rights of the sub- 
 ject against the assumptions of power, upon solemn 
 argument, declared that such seizures violated the 
 first pinciples of social union, and that the law of Eng- 
 land admitted no pretext of state necessity, to justify 
 acts so subversive of the dearest rights of the people. 
 He enumerated the multiplied abuses to which it had 
 led, and clearly proved that the power was utterly 
 incompatible with the exemption of the accused from 
 giving evidence against himself, and with those privileges 
 which Magna Charta had secured. The constitution ot 
 the United States provides against searches upon war- 
 rants : but the present case reaches beyond the evil to which 
 the convention looked. Mr. Wilkinson thought the form 
 of a warrant unnecessary. The act of congress inflicts 
 high pains and penalties for taking or breaking a letter, 
 after it has been put into the post-office. The postmas- 
 ters, and all other agents in the establishment, are sub- 
 ject to punishment for violating the mail ; no exception 
 is made in cases of insurrection, rebellion, or invasion ; 
 though assuredly these events must have been within the 
 view of the national legislature, as possible ones. Private 
 property and commerce, the innocent and the guilty, \\\\\ 
 be at the mercy of principal and deputy plunderers, as 
 long as the practice obtains. I never can reflect on this 
 subject, without feeling strong emotions. I can not 
 forbear again to remind you of the part acted by the
 
 324 TRIAL OF AARON BURR. 
 
 prosecutor when I first introduced this subject to the 
 court the other day. He complained that I should in- 
 sinuate the perpetration of high crimes like these, with- 
 out proof. His honest bosom seemed to swell with in- 
 dignation at the injustice I was doing. I felt the impro- 
 priety of making such heavy charges, without the ex- 
 hibition of testimony, and called for proof. Instantly 
 the scene was changed. The man was lost in the lawyer. 
 What a minute before was a crime, then became a sub- 
 ject of eulogy. The second class of illegal means 
 practiced by General Wilkinson, we contend, consisted 
 in attempts to. extort and inveigle partial te\stimony 
 against Mr. Burr. 
 
 There are two characters of craft in this branch of his 
 misdeeds. The one acts upon fear in all cases; the 
 other generally on hope. We see this man in all his 
 power and splendor, inviting an obscure stranger to his 
 quarters ; he proposes several questions. Knox shows 
 reluctance in answering them ; he then tenders Knox his 
 service, his influence, patronage, and finally one hundred 
 or one hundred and fifty dollars. Finding all these un- 
 availing, he resorts to the influence of terrors. He is 
 interrogated by Hall, who threatens imprisonment and 
 transportation, in case of disobedience. A list of 
 printed interrogatories is exhibited, antl Knox is re- 
 quired to submit to examination on them. 
 
 This evil and corrupting practice of affidavits is but 
 little understood. My friend Mr. Wirt stigmatized them 
 justly, the other day, as tending to the worst of pur- 
 poses, always containing the language and the coloring 
 of a biased draftsman, and never telling the whole 
 truth. When a witness is examined ex parte by counsel, 
 everything that makes for his employer is carefully 
 culled out and committed to writing, without the dross 
 of what may be for his adversary's advantage. If a wit- 
 ness should know much for the accused, and nothing for 
 the government, he would be passed by of course. 
 These affidavits are sent to the attorney. He is armed 
 now with a great bundle of them. So many daggers 
 put to the bosoms of the witnesses, as they successively 
 appear, could not be more inauspicious to truth. Should 
 a witness be cross-examined, to give a different com-
 
 MO TION FOR AN ATT A CHMENT. 3 2 5 
 
 plexion to a fact contained in his affidavit, the terrifying 
 writing needs only to be held up at the bar, and the 
 naked exhibition of such spectacle eloquently proclaims 
 his destiny, if he vary in the least from that fatal paper. 
 He is told, " If you go a step out of this paper, perjury 
 is the consequence, and your ears shall come off." The 
 important right of cross-examination is useless in 
 such a case. To be confronted by the accused, is 
 nothing, when the witness is confronted by his affi- 
 davit. 
 
 The other means practiced by General Wilkinson ap- 
 pertain to the privilege of the witness, and the liberty 
 of the citizen. This work of unprovoked tyranny, be- 
 gan on a Sunday. Under color of law, Knox was im- 
 prisoned and transported for the crimes of having eyes 
 so see, and ears to hear. He was not permitted to ob- 
 tain from his lodgings the clothing necessary to cleanli- 
 ness and health. The sagacious and patriotic judge had 
 as much reason to drag Wilkinson from the pinnacle of 
 his greatness and pomposity, and to commit and trans- 
 port him after he had hung back, until " his friends 
 trembled for his fame," as Mr. Knox. 
 
 The habeas corpus act in England, was produced 
 by the unlawful transportation of offenders for trial. 
 That measure has been marked by all the great measures 
 of the resisting colonies and of the old Congress, as one 
 of the most usual and most grievous concomitants of 
 arbitrary authority. The legislature of Massachusetts, in 
 1769, were excited to what were said in the mother coun- 
 try to be seditious resolutions, against the use of such an 
 expedient by parliamentary authority. The articles of 
 confederation ; the various addresses of Congress to the' 
 people of England, Ireland, and to the Canadians ; the 
 petitions to the throne, and the remonstrances to the 
 parliament ; the Declaration of Independence, and the 
 preamble to the constitution of Virginia ; all enumerated 
 among the acts of royal misrule, justifying revolt, the 
 oppressive one of transporting offenders for trial. The 
 nation waded through blood an.d slaughter, to rescue us 
 from this power ; but now it is exercised as an act of 
 course, not indeed in all cases, upon a criminal by legis- 
 ^ative authority, but upon a witness at the pleasure of a
 
 326 TRIAL OF AARON BURR. 
 
 military chief, whose delinquency in attendance was real, 
 while Knox's was imaginary. 
 
 But why all this complaint about poor Knox? He is 
 nothing but a poverty-stricken, obscure individual. The 
 vague and whimsical phantasy of equality, that kindled 
 enthusiasm in former times, is now too ridiculous for our 
 cares. The abuses of Knox are of no moment. The sun 
 rises and sets as usual. GeneraL Wilkinson takes his 
 coffee in the morning, and reposes himself on his sofa in 
 the evening. We are happy and content at our homes, 
 and things in general go on as before. It is a morti- 
 fying thought, that the enemies of our happy form of 
 government, may now triumph in the acquiescent sur- 
 render of the rights which it was instituted to secure. 
 They may boast that liberty has been scourged with 
 relentless fury and perseverance ; that the revolution has 
 been shorn of the brightest of its beams, with the hear- 
 tiest applauses of those in whose presence the offenses 
 of a tyrant have been presented for punishment. I feel 
 more pain and solicitude on this subject as a friend to 
 the present administration, than I do as counsel for Mr. 
 Burr. I could humble myself to beg of the gentlemen 
 in the prosecution to save the glory of our executive 
 from the tarnish of praise and impunity to General Wilkin- 
 son. If they will not grant my prayer, I must address it 
 to you, sir. I hope and believe, that the chief magistrate 
 of our country is a stranger to what has passed and is pass- 
 ing here. His generous, manly soul would surely disdain 
 all the petty larceny means which have been used to 
 kidnap testimony, betray confidence, and induce perju- 
 ries ; it would equally revolt at the wanton violation of 
 the most sacred of our laws and chartered rights. Such 
 a system can not characterize the noblest administration 
 that ever existed. 
 
 Let but this daring act pass unpunished, and we cease 
 to be what we were. If a citizen could be imprisoned 
 for three days, he may for three years. If he could be 
 transported to Richmond, he may to India. If one 
 man can be so imprisoned and transported, so may a 
 thousand. 
 
 A witness was asked whether Knox had not his liberty 
 on the voyage ? Yes, was the answer. How precious
 
 f MOTION FOR AN ATTACHMENT. 327 
 
 the boon ! He was at perfect liberty to jump into the 
 sea whenever he pleased ! 
 
 The attempt to make Mr. Gaines the scape-goat of 
 this confederacy (he deserves a better fate) is only 
 equalled by the atrocity of the confederacy itself. 
 
 We find that Mr. Wilkinson was inquisitor and transpor- 
 ter-general, without scruple or disguise, until he was about 
 to come to the United States. To borrow an idea from 
 Mr. Mac Rae, the noise that 'had been made about his 
 misdeeds, had taught him cunning. In the courts of 
 New Orleans, he could make the tribunal bow and trem- 
 ble, by a parade of magnificent nonsense. To avoid his 
 own humiliation in a freer climate, this farce, in which a 
 mock judge and a military-civil-sea-marshal, without 
 oath, bond or compensation were to perform their parts, 
 was devised. It is too clear that Wilkinson was the wire- 
 worker behind the curtain, by which the wicked catering 
 and gambols of mimic magistracy were played. I pity the 
 condition of a subordinate military officer bound to passive 
 obedience. Mr. Gaines was a worthy, duped young man. 
 I was fond of the honest appearance he made. The 
 candor of his testimony made it more a subject of grief 
 and indignation, that the contrivance should be to put 
 the whole responsibility on him. The introduction of 
 the lawyer, to complicate the disguise, is Another feature 
 in the picture. I hope, for the honor of the profession, 
 that there is some mistake as to the ^>art he acted. 
 Wilkinson is to be discerned through every part of the 
 cobweb. He makes the affidavit ; he sets the lawyer to 
 work ; his military officer becomes a deputy of the mar- 
 shal to leave his situation without the leave of the com- 
 mander-in-chief ; a sergeant is the deputy of that deputy ; 
 the captain on board -is under the direction of the gen- 
 eral ; to his care Captain Gaines commits Knox through 
 the sergeant; the military purse yields the money given 
 to the witness ; the vessel taken up by Wilkinson conveys 
 him, and 'Mr. Gaines owns, that if the general on the 
 passage had directed Knox to be put in irons, the order 
 would have been instantly obeyed. What ! a deputy 
 marshal, as such, to obey the orders of a military com- 
 mander ! The insidious attempt at Hampton Roads, 
 first involuntarily made by Mr. Gaines, and afterwards
 
 328 TRIAL OF AARON BURR. 
 
 repeated by General Wilkinson, to seduce an acknowl- 
 edgment that the civil authority had transported the 
 witness, may be connected with the other proofs. But 
 the demand, by General Wilkinson, of Knox's parol ot 
 honor to come to Richmond as the condition of his en- 
 largement, would be decisive on the present question, if 
 it admitted of doubt. 
 
 But you are gravely asked by Mr. Mac Rae to pro- 
 nounce that General Wilkinson deserves well of his 
 country for all these his patriotic acts. What, in other 
 times, and in other places, would subject a man to be 
 suspended between the heavens and the earth, from 
 whence his spirit should flee forever, now calls forth the 
 highest panegyric. I heard a compliment like the pres- 
 ent from the counsel, when General Wilkinson was here 
 on yesterday. I looked upon him and witnessed a smile, 
 when the occasion was better adapted to a groan. It was 
 a smile of the ghastly kind. It seemed to be of that con- 
 vulsive sort which distorts the face of the dying. Per- 
 haps General Wilkinson took a retrospect and felt the 
 compliment to be a reproach. Thus prejudice leads gen- 
 tlemen to praise acts of atrocity. This subject has been 
 treated with singular levity by the gentlemen in the pros- 
 ecution. They have not ventured to justify the com- 
 mitment of Knox. The furthest that Mr. Mac Rae 
 ventured, was' to risk the supposition that the act of 
 congress was of doubtful application, and might possibly 
 apply. He in this tacitly yields, that there is no justify- 
 ing the conduct pursued in the commitment. The gen- 
 tleman who spoke last, reminds us, that " the sins of the 
 fathers ought not to be visited on the children." I say 
 then, that the sins of the principals ought not to be 
 visited on the subalterns. 
 
 Mr. Mac Rae concludes with reminding the court, that 
 Mr. Burr had enjoyed privileges that no one under pros- 
 ecution before him had ever enjoyed. He said, too, that 
 you were perfectly right to hear us on this question. I 
 submit to him whether the first remark were just or re- 
 spectful to the court ? In the latter point he differs from 
 another gentleman on the same side, who has struggled 
 much to prevent us from addressing you. 
 
 It only now remains for me to prove that your juris-
 
 GRAND JURY INDICT BURR. 329 
 
 diction is commensurate with our purpose. The I4th 
 section of the judicial act authorizes the court to issue 
 all writs not specially authorized, for the more perfect 
 exercise of the powers vested in it. The power of com- 
 pelling attendance and securing privilege, can not be 
 exercised in perfection without a power of attaching for 
 contempts in the one case or the other. The district 
 courts of Virginia constantly exercise tnis right of over- 
 looking the purity of the streams of their justice, through 
 all its branchings, without the district as well as within. 
 The right of attachment overreaching the limits of the 
 state, must result as incidental to the emanation of the 
 subpoena to other states. But the rioting ofi lawless 
 power continued from New Orleans to Richmond. 
 When it entered on the seas it was within the regular 
 limits of your authority. 
 
 In a view to the privilege of the witness this motion 
 must be sustained, if we be deceived in all our other 
 grounds. What means the privilege, unless it be, that 
 he shall have protection from abuse? Is it to assist in 
 this privilege to imprison him ? Is the privilege to 
 exclude him from all his rights, and put him at the 
 mercy of land and sea jailers? If this be the enviable 
 advantage of privilege, General Wilkinson will deserve 
 well of his country for assisting to maintain it. 
 
 Knox was summoned before any of this violence was 
 used towards him. From the moment that he was sum- 
 moned, he was under your protection. The naked ser- 
 vice of a summons must have proved that your powers 
 reached not beyond a summons until there were default. 
 It is absurd to suppose, that what this court could 
 not do for itself, a magistrate, no way connected with 
 it, could unasked and officiously do for it. 
 
 I refer the court, without comment, to Supplement 
 to Viner's Abridgment, 225, and 3 Hawkins, 275, on the 
 subject of contempts of the court. 
 
 When Mr. Botts was speaking [being about two 
 o'clock] the grand jury entered, and Mr. Randolph, the 
 foreman, addressed the court, and stated that they had 
 agreed upon several indictments, which he handed in at 
 the clerk's table. The clerk read the endorsements 
 upon them in the following terms :
 
 330 TRIAL OF AARON BURR. 
 
 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 Blannerhasset for trea- 
 son " A true bill." 
 
 An indictment against Herman Blannerhasset for a 
 misdemeanor " A true bill." 
 
 Mr, Randolph then continued : May it please the 
 court, Although the grand jury have returned these 
 bills, they have still other subjects for their considera- 
 tion, and have adjourned themselves to meet -to-morrow 
 at ten o'clock. 
 
 After "Mr. Botts concluded his argument, Mr. Burr ad- 
 dressed the court, and observed, that as bills had been 
 found against him, it was probable the public pros- 
 ecutor would move for his commitment ; he would, how- 
 ever, suggest two ideas for the consideration of the 
 court ; the 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 the commitment of Aaron Burr. 
 He stated that if the court had the power to bail by 
 the 33rd section of the judicial act, it was only to 
 be exercised according to their sound discretion ; and 
 that the prisoner was not to demand bail as matter of 
 right, because the court was authorized to grant it, but 
 by his making out an adequate case, and showing that 
 he was entitled to it. He quoted 4 Blackstone's Com- 
 mentaries, p. 298, to prove that this discretion ought to 
 be deliberately and cautiously exercised. 
 
 Mr. Martin. The counsel for the prosecution have, 
 then, admitted the right of the court to give bail, accor- 
 ding to its discretion. 
 
 Mr. Mac Rae did not understand from the judicial 
 act, that the discretion was to be exercised at this stage 
 of the business, but only at the time of making thj 
 arrest. 
 
 Mr. Martin. I can hardly suppose that this court has
 
 MOTION TO COMMIT. 331 
 
 less power than the court of king's bench in England, 
 which certainly possesses this authority, according to 2 
 Hale, pp. 129, 134. 
 
 Mr. Wirt was extremely solicitous to do anything 
 compatible with his duties, which might soften the situ- 
 ation of the prisoner, and if the court had the discre- 
 tion, he did not wish them to restrict it ; but he did not 
 perceive the analogy which had been drawn between 
 this court and the court of king's bench. The powers 
 of that court grew out of the common law of England, 
 whereas the powers of this court were defined by a stat- 
 ute of our country. What says the 33rd section of the 
 judicial act ? " Upon all arrests in criminal cases, bail 
 shall be admitted ; except where the punishment may 
 be death, in which case it shall not be admitted but by 
 the supreme or a circuit court, or by a justice of the su- 
 preme court, or a judge of a district court, who shall ex- 
 ercise their discretion therein, regarding the nature and 
 circumstances of the offense, and of the evidence and the 
 usages of law." Is not this inquiry by the court stopped, 
 said Mr. Wirt ; is not the evidence and testimony stopped, 
 when it is now locked up by the finding of the grand 
 jury? Would it be right for this court to go into all the 
 merits of the case, which this clause evidently requires, 
 before the court can exercise this discretion ? Will the 
 court go into the investigation oj" the evidence, and thus 
 throw itself into collision with the grand jury? It is ob- 
 vious from these considerations, as well as from the 
 words of the law, that such a discretion does not exist 
 at this stage of the business, but only at the time of arrest. 
 
 Mr. Wickham. The counsel for the United States ex- 
 press their readiness to accommodate Mr. Burr, yet act 
 otherwise. If the court of king's bench possess this au- 
 thority, shall it be contended that this court is without 
 it ? Shall it be said that the liberties of the people of 
 this country are not as well secured as those of Great 
 Britain ? that a British subject has greater privileges than 
 an American citizen? It is said, however, that this court 
 grows not out of the common law, but out of our stat- 
 utes ; but will it be said, that, when this court has once 
 been constituted, it does not proceed according to the 
 established jurisprudence ; that is, the common law.
 
 332 TRIAL OF AARON BURR. 
 
 There can be no question but that a state district court 
 can bail, even in capital cases. Will this court, it is asked, 
 place itself in opposition to the grand jury? No, sir, it 
 will not : and Mr. Wirt certainly forgets that the court is 
 to hear both sides of the evidence; whereas, the grand 
 jury heard one side only, and indeed a part only of that 
 side ; for had the United States attorney sent up all the 
 witnesses, whose names appear at the foot of the indict- 
 ment, very different would have been the result, of their 
 inquiries. The ground which we take is this; that the 
 grand jury have found their bill upon the testimony of a 
 perjured witness; and if the court were to bail Mr. Burr, 
 would it not be justly inferred, that they had not set 
 themselves up in opposition to the grand jury, but that 
 they had been furnished with lights, which had been de- 
 nied to that jury? " Upon arrests," signifies in all cases, 
 where there has been an arrest. The case in Dallas comes 
 fully up to the point. 
 
 Mr. Botts said, that if the common law did not enable 
 the court to bail, it did not enable them to commit. 
 
 Chief Justice. Mr. Martin, have you any precedent, 
 where a court has bailed for treason, after the finding of 
 a grand jury, on either of those grounds; that the testi- 
 mony laid before the grand jury had been impeached for 
 perjury, or that other testimony had been laid before the 
 court, which had not been in the possession of the grand 
 jury? 
 
 Mr. Martin said, that he had not anticipated this case, 
 and had not, therefore, prepared his authorities ; but he 
 had no doubt that such existed. 
 
 Mr. Burr. Two distinct questions have been blended 
 in this discussion, which ought to have been kept separ- 
 ate. First, Whether this court have the right to bail 
 according to its discretion ; and secondly, Whether it 
 were expedient to exercise its right in the present in- 
 stance ? If the court have no discretion, it is unnecessary 
 to produce evidence. That question*ought, therefore, to 
 be previously settled. 
 
 Mr. Hay observed, .that when he first addressed the 
 court, he was of opinion, that the circuit court had this 
 power, having been misled by a very transient conversa- 
 tion with the chief justice, on the first examination of
 
 MOTION TO COMMIT. 333 
 
 Mr. Burr; that he had, however, considered this subject 
 more maturely, and the more he thought of it, the more 
 he was convinced that Aaron 'Burr was not privileged to 
 demand bail. That he would feel no regret if the court 
 could bail, but he thought they could not ; that it was in- 
 cumbent on the prisoner to show the law which author- 
 ized his being bailed ; that the question was to be decid- 
 ed by the common law, by the acts of Congress, or by 
 the acts of Virginia. It could not derive the authority 
 from the common law, because this court is of a recent 
 origin, deriving its power not only from a late law, but a 
 lately created government ; and it has no authority but 
 from an established law. Does, then (said Mr. Hay), the 
 law which established this court, expressly convey this 
 power ? [Here he read the 33rd section of the judicial 
 act.] Now, how are the court to attend to the nature 
 and circumstances of the case and of the evidence ? Will 
 they require all the evidence to be before them, which 
 has just occupied the attention of the grand jury for 
 seven or eight days ? Mr. Wirt's argument on this point 
 is conclusive. The law too is applicable to a prisoner 
 only at the time of his arrest, and not of an indictment 
 being found against him ; in the last case, the situation 
 of the accused becomes still more precarious ; the dan- 
 ger which he apprehends, comes nearer and nearer, and 
 the temptation to violate his recognizance, becomes much 
 greater than at the earlier steps of the prosecution. [Mr. 
 Hay then referred to the case of Bedinger v. the Com- 
 monwealth of Virginia, decided by the court of appeals, 
 where that court refused to review the errors of a dis- 
 trict court, in criminal cases, because no act of assembly 
 gave them the power.] 
 
 No man will contend that the common law is in force 
 in the courts of the United States. As soon might you 
 assert the validity of the laws of the Cape of Good 
 Hope or of Turkey. It was, therefore, ridiculous to 
 compare the organization of the court of king's bench 
 with that of the present court. As to the complaint of 
 Mr. Wickham, that by this doctrine an American citi- 
 zen would stand on worse grounds than a British sub- 
 ject, it is unavailing. Perhaps courts of justice would 
 even be more disposed to bail for treason under such a
 
 334 TRIAL OF AARON BURR 
 
 government as that of Great Britain, than under our 
 own, where the power of the government falls so rarely 
 and so lightly upon thepeo'ple. Were even the common 
 law in force in the United States, it would have no rela- 
 tion to the organization of our courts. 
 
 The power of bailing is neither derived from the com- 
 mon law, nor the act of congress ; nor is it deducible 
 from the laws of Virginia. In cases affecting life, the 
 prisoner is not entitled to bail by our laws. Rev. 
 Code, pp. 63,83, 411. In the two former pages, two 
 judges of the general court have the power ; but it 
 can not be inferred that this court therefore has it. 
 
 Mr. Wirt. I have stated that the powers of the 
 caurt of king's bench are not applicable to this case, 
 because that court is the creature of the common law, 
 whose powers are of ancient date, and have been grow- 
 ing up from time to time ; whereas this court is recent, 
 and its powers fixed and defined by law. There is 
 another great difference. The powers of the court of 
 king's bench take their origin in a fiction. It is sup- 
 posed to be held coram ipso rege ! In its origin, the 
 king himself sat there, and he is still supposed to sit. 
 Treason was a crime against his dignity ; he might bail 
 for it ; and the same power belongs to the judges who 
 represent his person. But how is it with us? Treason 
 is an offense against the people of this country. And 
 have the people ever sat here for the administration of 
 justice? Are the judges of this court invested with the 
 powers of the people ? But on the supposition that 
 this fiction does exist, is not the power of bailing re- 
 moved by a positive law ? Does not the act of congress 
 expressly take it from the court ? By the laws of Vir- 
 ginia, in cases of offenses punishable in life and limb, 
 bail is only admitted where there is but a light suspicion 
 of guilt. If some of the witnesses be perjured, that 
 does not prove that the indictment is found on their evi- 
 dence. There has never been an instance of bailing 
 after a true bill found. The act of congress enables the 
 court to bail only on arrests, after examination of the 
 circumstances, the evidence and law of the case. Can 
 you bail, therefore, on a partial view of the evidence ? 
 
 Mr. Wickham. Two indictments have been found for
 
 MOTION TO COMMIT. 335 
 
 treason ; one against Mr. Burr, and the other against 
 Blannerhasset. If the latter were now to come into 
 court, he would be bailed, according to Mr. Wirt's -dis- 
 tinction, because not previously arrested ; whereas 
 Mr. Burr would be divested of the very same priv- 
 ilege, though he was indicted for the very same crime. 
 
 Mr. Hay said that the judges of the general court in 
 Virginia have a copy of the record, with evidence in- 
 cluded, before them, to enable them to judge whether 
 they ought to bail in certain cases ; but that this court, 
 if they had the power, could not let to bail without ex- 
 amining all the witnesses. 
 
 Mr. Randolph expatiated- on this subject at consider- 
 able length, and with great ingenuity. He particularly 
 contended, that the power of admitting to bail was inci- 
 dent to every court ; that the power was implied in the 
 term " court." That it was as absolutely necessary for 
 the happiness of the people, that courts should possess 
 this power, as it was, that they should have the right of 
 committing persons accused, for their safe keeping, in order 
 to be regularly tried. That the common law must be 
 received to a certain extent ; that every judge and court 
 had the right to bail persons indicted before them ; and 
 that it would be an extreme hardship to confine in a dun- 
 geon, a person who could clearly prove that he was not 
 guilty of the offense charged against him. That the 
 counsel for the prosecution occasioned this lengthy dis- 
 cussion by moving to commit Mr. Burr; and that time 
 was of no consequence compared to liberty. 
 
 Mr. Martin protested against the ingenious fiction of 
 Mr. Wirt, as he called it. He challenged him to name 
 any king, from the days of King Arthur to the present 
 time, who either did, or would, sit in the court of king's 
 bench. That the act of congress only defined the 
 powers of individual magistrates out of court, but took 
 away no power from them as a court. That bailing was 
 incident to commitment, and co-extensive with the jur- 
 isdiction of the court over crimes. ' 
 
 After a considerable desultory discussion on this point, 
 the Chief Justice declared that the act of congress, in 
 express terms, enabled the court to bail a prisoner ar- 
 rested for treason. That there was no distinction
 
 336 TRIAL OF AARON BURR. 
 
 between treason and other criminal cases, as to the power 
 to bail upon arrests; but, that an arrest might be after a 
 finding by a grand jury ; in which case, the finding of 
 the grand jury would be the evidence on which the 
 court would have to judge whether the party arrested 
 ought to be bailed. That they were to exercise their 
 discretion " according to the nature and circumstances of 
 the offense, and of the evidence and usages of law*" 
 That "usages of law" were to be found in the common 
 law, and the practice of courts; but that he doubted ex- 
 tremely, whether the court had the right to bail any 
 person, after an indictment for treason had been found 
 against him by a grand jury; especially in a case like the 
 present, where the government was ready with its testi- 
 mony, and there was no extraordinary circumstance (as 
 an alibi clearly proved) to repel the effect of the finding 
 of the jury, and that he wished authorities produced to 
 satisfy the court that it had the power. 
 
 Mr. Burr said that if the court thought it had the 
 power to bail in any case after a bill found, it would be 
 then necessary to show that it ought to exercise its dis- 
 cretion in this instance. That the finding of the jury 
 was founded on the testimony of a perjured witness. 
 That General Tupper would prove, that there had been 
 no such resistance to his authority as had been stated by 
 that witness ; and that though this circumstance had 
 been mentioned to the prosecutor by General Tupper, 
 he had not been sent up to the grand jury. 
 
 Mr. Mac- Rae. General Tupper has made no such 
 communication to me. 
 
 Mr. Hay. Though I had a conversation with General 
 Tupper, I do not exactly recollect what it was. The 
 truth is, that I have carefully avoided conversing with 
 the witnesses of the United States (except General 
 Wilkinson). General Tupper made application to me 
 for permission to go away; but I said, that I would, for 
 no consideration, submit to the imputation of consent- 
 ing to the departure of any of the witnesses. He was 
 not sent up to the grand jury, because he was not con- 
 sidered as a material witness. 
 
 Mr. Wirt. He has made no such communication to 
 me ; and I take it upon me to assert, that the resistance
 
 MOTION TO COMMIT. 337 
 
 to General Tupper was not the treason on which the in- 
 dictment has been found. 
 
 Mr. Wickham. Suppose a man were indicted for mur- 
 der, committed at some distance from this city, and a 
 grand jury had found a true bill against him ; but it 
 could be proved, by every man in the city, that he was 
 at the moment -when the offense was said to have been 
 committed, walking in the streets: would such a finding 
 by the grand jury preclude a court from bailing him ? 
 The constructive murder in that case is of the same 
 stamp as the constructive treason of Mr. Burr in this 
 case, who is indicted for an act said to be done in Blan- 
 nerhasset's island, where he was said to be present, al- 
 though he was at a considerable distance from the 
 place. 
 
 Mr. Wirt. Why should evidence be produced to 
 prove the perjury of a witness? why look to the indict- 
 ment itself ^Dr a proof of its own fallacy, when the 
 requisitions of the court have not yet been satisfied ? 
 The court wanted authorities to prove, that in such a 
 case as this, it had a discretionary right to bail " accord- 
 ing to the usages of law." 
 
 Mr. Burr wished to know, whether the court would go 
 into testimony extrinsic to the indictment. 
 
 The Chief Justice had never known a case similar to 
 the present, where such an examination had taken place. 
 
 Mr. Martin would produce authorities, if he had time 
 allowed to him. 
 
 Mr. Randolph drew an analogy between this and the 
 case of a coroner's inquest. 
 
 Mr Wirt said there was no apposite analogy between 
 them. 
 
 The Chief Justice insisted upon the necessity of pro- 
 ducing adjudged cases, to prove that the court could bail 
 a party, against whom an indictment had been found. 
 
 Mr. Burr did not wish to, protract the session of the 
 court to suit his own personal convenience. There was 
 no time at present to look out for authorities. 
 
 The Chief Justice observed, that he was then under 
 the necessity of committing Mr. Burr. 
 
 Mr. Burr stated, that he was willing to be committed, 
 but hoped that the court had not forestalled its opinion. 
 
 22
 
 33 TRIAL OF AARON BURR. 
 
 Chttf Justice. I have only stated my present impres- 
 sions. This subject is open for argument hereafter. Mr* 
 Burr stands committed to the custody of the marshal. 
 
 He was accordingly conducted to the jail. 
 
 THURSDAY, June 25th, 1807. 
 
 After a writ of habeas corpus was granted to bring up 
 the body of Mr. Burr, General Andrew Jackson from 
 Tennessee, and sundry other witnesses were sworn, and 
 sent to the grand jury. 
 
 Mr. Hay addressed the court. We were reluctant the 
 other day to discuss this subject. (It is not a question ; 
 for it does not deserve to be so called.) We wished the 
 court to decide on the testimony ; but counsel would have 
 an argument. We have repeatedly proposed to them to 
 close the arguments. I thought, and still think, this 
 motion an obstruction to public justice, ^tvish to go on 
 with the business of the court, and this motion pre- 
 vents me. Gentlemen have determined to persevere ; 
 but they have not stated the object, they have not spec- 
 ified the act of which they complain. If they had stated 
 in their motion the fact said to be an obstruction of jus- 
 tice, the absurdity would have been apparent. By avoid- 
 ing a specification they get over the difficulty, and are 
 enabled to go at large on every topic for the public ear. 
 But a fair examination of facts will satisfy the court that 
 there is no foundation in law, nor justice, nor even in 
 policy for this motion. 
 
 Before I examine the merits of this motion, I can not 
 forbear to express my surprise, that it should be made 
 by the counsel for the prisoner. It is called a contempt 
 of the court. In what manner can any of the acts 
 charged, be tortured into a contempt of the court. Is 
 this motion made by order of the court itself? The court 
 would never have thought of it. Is it made by the Uni- 
 ted States, or their officers? No. Nor is it made by a 
 party injured. Burr can not justly say that he was in- 
 jured by bringing a witness to this place, who was one of 
 his own associates, and who quitted his wife, children, 
 home, and business, to join him. 
 
 What then can be their motive in makinsr this motion
 
 MOTION FOR AN ATTACHMENT. 339 
 
 The solution is obvious. It is not with a view to clear 
 away obstructions of justice ; but to make an impression 
 on the public mind, that General Wilkinson, whose evi- 
 dence is important, was guilty of violence and injustice. 
 The motion itself is a contempt of the court, by obstruct- 
 ing public justice. 
 
 Chief Justice. Mr. Hay, the court will hear any mo- 
 tion which you may have to make, or which any other 
 gentleman may wish to make. 
 
 Mr. Hay. I cheerfully withdraw the remark, and to 
 save time, I will discuss this motion first. I will state as 
 briefly as I can, the evidence of the only witness intro- 
 duced in support of this motion to attach General Wil- 
 kinson, James Knox. 
 
 He says that General Wilkinson sent for him, con- 
 versed with him about Burr, and his plans, as he wished 
 him to be a witness at the expected trial. Knox com- 
 plained to him of the want of money to carry him home. 
 General Wilkinson offered him money. He knew, that 
 if Knox was summoned as a witness on the part of the 
 United States, he would be entitled to money for his at- 
 tendance. It is only a conjecture of Knox, that General 
 Wilkinson's motive for offering him money was to in- 
 duce him to be a witness. I think this conjecture in- 
 finitely more probable : that, knowing his evidence to be 
 material, and that he would be entitled to his expenses 
 for his attendance, which might be prevented by his want 
 of money, Wilkinson thought he might, very properly 
 and innocently, obviate that difficulty by advancing 
 money from the treasury of the United States, to the 
 amount that he would probably be entitled to. Knox 
 said, that he was afterwards arrested, and carried as he 
 understood, before Judge Hall; committed to prison, 
 and carried on board the schooner Revenge, by what he 
 conceived to be military authority ; that he answered 
 some questions, which, according to his own statement, 
 were artfully put ; but that he declined going through his 
 evidence before General Wilkinson : notwithstanding, he 
 is declared, in presence of this man, to be a military des- 
 pot, keeping the whole western world in awe and terror. 
 The witness himself expressly declares, that Wilkinson 
 never used threats nor promises to him ; and yet gentlemen
 
 340 TRIAL OF AARON B URR. 
 
 have frequently misstated the notes, taken by General 
 Wilkinson, to be an affidavit extorted from him. Now, 
 sir, admit foi a moment, that this man was brought here 
 under a mistake of the law; admit more than he states, 
 that he was brought by military authority, and the orders 
 of General Wilkinson, and forcibly brought into this 
 court. Suppose merely, that the general thought, that 
 as the military commander he had a right to bring reluc- 
 tant witnesses to this country; and had brought Knox to 
 this court, because he knew him to be a material wit- 
 ness. I ask the court, whether this evidence, on princi- 
 ples of common sense, could justify the motion now be- 
 fore the court? This would bean illegal act, and for 
 which Knox might recover damages ; but certainly it 
 could not be called a contempt of the court, without a 
 perversion of terms, and confusion of ideas. It would 
 promote, rather than obstruct, justice. There is one spe- 
 cies of treatment which might be offered to a witness, 
 that might be called such a contempt. Suppose a wit- 
 ness were coming to this capital with a subpoena in 
 his pocket, which had been served on him to attend 
 and give testimony in this cause, and he were forcibly 
 prevented from coming to court, that would be a con- 
 tempt of the court. In that case, the streams of justice 
 would be interrupted, and the court ought to punish the 
 party guilty of such unjustifiable conduct ; and if the 
 court would punish an offender for stopping a witness 
 from coming to court, it would not act absurdly, blow hot 
 and cold at the same time ; and punish a person for bring- 
 ing a man to court to tell all he knew in this cause. If 
 to prevent a witness from attending the court, be a viola- 
 tion of private right, and a contempt of the court, for 
 which the offender ought to be punished, on principles 
 of common sense, an act diametrically opposite, can not 
 be the same offense. Admitting the conception of the 
 .vitness to be correct, that he was brought hither by mil- 
 itary authority proceeding from General Wilkinson, this 
 is, .conclusive to show, that it is not a contempt of the 
 court. Therefore, according to the testimony of the only 
 witness brought forward in support of this motion, and 
 allowing it the utmost latitude of construction, General 
 Wilkinson is not guilt)' of a contempt of the court, for
 
 MOTION FOR AN ATTACHMENT. 341 
 
 which he ought to be att'ached, or for which even a rule 
 to show cause against it, should be granted. 
 
 But, sir, what is the real history of the conduct of 
 General Wilkinson ? Why, sir, the mountain of which 
 gentlemen have talked so much dwindles to a mouse ; 
 nay, more, it disappears ; not even a shadow is left behind. 
 The cause about which so much has been said, and by 
 means of which so much obloquy has been attempted to 
 be thrown on General Wilkinson, is this : Mr. Gaines was 
 requested, by the attorney-general of the United States, 
 to serve subpoenas on such witnesses as should be indi- 
 cated to him. General Wilkinson has the honor and 
 glory of being the man, by whom a dreadful explosion 
 was prevented. He knew facts and the particular state 
 of things better than any other man. The subpoenas 
 were, therefore, very properly transmitted to him, to be 
 filled up with the names of the witnesses. Mr. Gaines 
 did serve the subpoena on Knox, who said he was unwill- 
 ing to attend; and he served it on him, because he was 
 previously pointed put to him by General Wilkinson, to 
 whom Knox had made some disclosure. Though he had 
 not made a full disclosure, yet he had told enough to 
 show that he was a material witness. I have in my pos- 
 session the notes of his evidence, taken by General 
 Wilkinson, which, though neither sworn to nor signed, 
 would have been sufficient to show his materiality; as he 
 had come down the river with the party, and had some 
 opportunity of knowing their views and objects. With 
 a knowledge of this man's materiality, General Wilkinson 
 made an affidavit that he was a material witness for the 
 United States, and it was sent, we do not know by whom 
 (perhaps by a servant) ; it is certain he did not carry it 
 himself. I will make a single reflection in this place. 
 If General Wilkinson had been under the influence of 
 those diabolical designs which are ascribed to him, how 
 came it to pass that he intrusted this business to a man 
 with whom he was at variance? This evinces a great 
 deal of fairness and candor on his part. The judge issues 
 his precept to take this man up, requires a recognizance 
 of him ; he gives no security ; the judge deliberates on 
 the subject; examines the laws of his country (with the 
 lamination of which he was intrusted) ; gives his opin-
 
 342 TRIAL OF AARON B URR. 
 
 ion, and expresses his extreme reluctance to act against 
 him. He refers to the clause of the act of congress in 
 question ; to the counsel who was present; and after all, 
 he said, that he thought it his duty to secure the atten- 
 dance of this man as a witness. He committed him, not 
 to military authority, but to the marshal. He issued his 
 warrant to the marshal of that district, and the marshal 
 authorized Mr. Gaines to act as his deputy; and here is 
 the warrant (showing it) which authorized Mr. Gaines 
 to act as deputy marshal. 
 
 Mr. Botts denied that there was any order conferring 
 such an authority. [Mr. Gaines was then sent for.] 
 
 Mr. Mac Rae offered to prove the respectability of 
 Judge Hall, as he had been attacked ; and said he could 
 amply establish that he was a man of character and tal- 
 ents, and incapable of being used as a tool. 
 
 The Chief Justice said that nothing would be more 
 improper than to go into such proof; that his character 
 was not arraigned ; and that, therefore, a vindication of 
 it was unnecessary. 
 
 After a few desultory remarks, Mr. Botts said that he 
 had not attacked him except as to this business ; but his 
 opinion was that if a lawyer in Virginia had given such 
 an opinion, and acted as Judge Hall did in this trans- 
 action, his license ought to be revoked, but that he had 
 understood from the best authority, that he was a man 
 of unimpeachable character. 
 
 Mr. Hay. Gentlemen may do as they please with 
 Judge Hall. It is not my business to vindicate him ; 
 they may lay him down in dust and ashes. It can not 
 affect General Wilkinson, nor the question before the 
 court, unless they prove a connection between them. I 
 said that the judge had committed Knoxto the custody 
 of the deputy marshal ; then he directed the warrant 
 to the marshal requiring him to bring him to this place. 
 The marshal executes a deputation to Gaines, who arrests 
 him, puts him in custody, then puts him on board the 
 vessel, and brings him as a witness to Richmond. 
 General Wilkinson, so far from manifesting contempt of 
 the civil authority, was fearful that Gaines might do 
 wrong, and recommended to him to apply to the attor- 
 ney of the United States, and to other counsel to know
 
 MOTION FOR AN ATTACHMENT. 343 
 
 how to proceed. I deem this a very important point, 
 because General Wilkinson had not the slightest expec- 
 tation, that he would be the subject of public animadver- 
 sion, or that Burr would be the public accuser for what he 
 was then doing. Therefore, his recommendation to 
 Gaines to apply to counsel, demonstrates the habitual 
 reverence of his mind for the constituted authorities of 
 his country. It is impossible that he could have done 
 so for the purpose of shielding himself from this attach- 
 ment ; for without inspiration from above, he never 
 could have guessed that such a motion as this would be 
 made. This conduct, in my mind, demonstrates, in the 
 clearest manner, that those imputations, that he is a 
 military, lordly, despotic character, and holds in con- 
 tempt the civil authority, are absolutely groundless. 
 How far General Wilkinson was justifiable in time of great 
 danger, when he was threatened by traitors without and 
 within, in acting as he did at New Orleans, or what he ought 
 to have done on that trying occasion, is a question not now 
 to be determined. I am inclined to believe (though I do 
 not certainly know) that the decision will not only be 
 favorable to him, but that ultimately the part he took 
 will be honorable in the highest degree to his character. 
 
 The declaration made by General Wilkinson to Knox, 
 who was complaining to him of the want of money, that 
 he might have so much, if duly considered, was proper 
 and correct. Now, sir, take up the subject as it really 
 appears ; even on the witness's own statement, it ap- 
 pears to be almost nothing. His ordering the military 
 agent to pay money to the witnesses, shows his reason 
 for offering money to Knox. When, therefore, we con- 
 sider the case as fully stated by Gaines, it appears to be 
 less than nothing ; because General Wilkinson did what 
 was perfectly consistent with law, and dictated by every 
 principle that ought to influence a man of integrity and 
 patriotism. 
 
 Gentlemen say, that it was his interest and his object, 
 in all his plans, to destroy Mr. Burr for his own sal- 
 vation. If this were true, would he not have used the 
 most decisive means to force the witnesses hither? What 
 did he do in this critical situation? He receives subpoe- 
 nas from the attorney-general, and tells the agent of the
 
 344 TRIAL OF AARON BURR. 
 
 government, that he must apply to counsel, and act in 
 the business according to law. I ask, whether General 
 Wilkinson has done anything for which he or his friends 
 ought to blush, or the accused to complain ? All he did 
 was to make an affidavit, that the witness was material ; 
 and everything which he did, stopped there. After the 
 affidavit, everything which was done was the act of the 
 judge and of Mr. Gaines. Will gentlemen contend, that, 
 if my representation be correct, Wilkinson is to be blamed 
 for these acts? I know they have too much respect for the 
 court and for themselves to say so : but they will say, 
 that the military and civil authority were united for this 
 purpose. I ask, where is the evidence of a combination 
 between General Wilkinson and the judge? What temp- 
 tation was there to. induce the judge to violate his oath, 
 and prostrate his judicial character? Was it only for the 
 purpose of gratifying General Wilkinson, with whom he 
 had no intercourse, and with whom he was at variance? 
 It is incumbent on them to prove a previous connection' 
 between them before they can affect General Wilkinson. 
 They have not deigned to do this. But we have a wit- 
 ness on our part, whose testimony proves, that such a 
 connection was highly improbable. I wish Mr. Randolph 
 had pointed out the grounds on which he so boldly de- 
 nounced General Wilkinson for the acts of the judge. 
 Knox, who made a voluntary representation to Burr, has 
 no right to complain. He could maintain no action 
 against General Wilkinson. Suppose he were to sue him 
 for false imprisonment. Could he recover damages 
 against him for making the affidavit, that he was a mate- 
 rial witness ? No, sir. The connection between him and 
 the judge, and an improper and corrupt decision by the 
 judge, must be proved. The witness could have no ac- 
 tion against General Wilkinson, admitting the conduct 
 
 o o 
 
 of Judge Hall to be illegal and oppressive. I think this 
 ought to be conclusive. If there can be no right of ac- 
 tion, there can be no contempt. But how strange does 
 this proposition appear before the court ? Knox was 
 summoned to attend here as a witness. Suppose he had 
 not attended, he would have been liable to an attach- 
 iru nt for not coming; because the process of this court 
 (in the name of the president of the United States) had
 
 MOTION FOR AN ATTACHMENT. 345 
 
 been served on him, and it was his duty to obey it. 
 He would, therefore, have been liable to be attached for 
 not coming, and yat General Wilkinson is to be liable 
 to an attachment for making him come! Is not this to 
 blow hot and cold at the same time ? This may be law ; 
 but no man in the world would say, that it bears the 
 least resemblance to common sense. 
 
 The gentlemen have never defined a contempt of the 
 court. It is stated in 5th Viner, 442. 
 
 The very definition of the offense excludes the possi- 
 bility of its application to the act now complained of. 
 
 How, then, can there be anything by way of contempt, 
 unless gentlemen will seriously say, that General Wilkin- 
 son himself has brought the witness hither, and that 
 bringing a witness to the court is a contempt of it. 
 
 The case in 2 Viner, 234, pi. 56, referred to by Mr. Mar- 
 tin, has no application to this case : it is not like it. The 
 contempt there consisted in keeping a juryman from at- 
 tending the court. I v/ill trouble the court by referring 
 to 4th Blackstone's Commentaries, p. 283. He states 
 that the contempts punishable by attachment are "either 
 direct, which openly insult or resist the powers of the 
 court, or the persons of the judges who preside there: or 
 else are consequential, which (without such gross inso- 
 lence or direct opposition) plainly tend to create a uni- 
 versal disregard of their authority." He further enumer- 
 ates in the two next pages, the instances of the different 
 kinds of contempts by officers, witnesses and parties, and 
 other persons ; all of which come within the same defini- 
 tion, of disregarding the authority of, or disobeying, 
 treating with disrespect, or abusing, the process of the 
 court. I believe it has been observed, that there never 
 was an author of any subject, either law or any other 
 science, more distinguished for precision than Black- 
 stone. This is a character which he so well deserves, that 
 I believe that an act that does not come within the scope 
 of his definition, is not a contempt, and ought not to be so 
 construted. Motions for contempts are questions be- 
 tween the court and individuals. In ninety-nine cases out 
 of a hundred, they have no influence on the private rights 
 of individuals. Yet the judges are but men, and they may 
 sometimes think there was a contempt, when none was in-
 
 346 TRIAL OF AARON B URR. 
 
 tended: and, under the influence of feelings, of which 
 they are not themselves conscious, may decide accord- 
 ingly, and punish a party for an offeyse never intended, 
 and of course not committed. This is an observation 
 for which I am indebted to one of the ablest judges un- 
 der the government of Virginia. Its propriety struck 
 me with great force. Notwithstanding I .presume that 
 this is a fact, under such a high-toned government as 
 that of England, the counsel who opened the motion 
 acknowledged, that a case in point could not be found. 
 Contempts in Great Britain have been frequent, and 
 they have been uniformly punished ; but in this country 
 very few instances have occurred, and these were mostly 
 by drunken men. I ask, then, whether it be not wonder- 
 ful, if their motion be regular, that in all the volumes in 
 the English laws, which treat on the subject of con- 
 tempts, not a single instance can be adduced, by the in- 
 dustry of all the counsel on the other side, of an attach- 
 ment for such conduct as is now complained of ? But 
 it can be readily accounted for: it is because no such 
 motion as this has ever been known in Great Britain. 
 Though the doctrine of contempts have been too much 
 extended in that country, yet no motion was ever at- 
 tempted to punish a man for promoting justice by 
 bringing forward a witness to give evidence in a court of 
 justice. But I deny that this has been done by the 
 party now accused. Is there a single circumstance in 
 the conduct of General Wilkinson, showing a disregard 
 for the authority of this court? An attachment is a 
 summary proceeding by which a man is taken up in- 
 stantaneously, brought before the court, and unless, as 
 in the present case, long speeches happen to intervene, 
 he is immediately punished or discharged; and the case 
 is determined with as much rapidity, as the fate of those 
 suspected persons, who were formerly sent to the revo- 
 lutionary tribunal in France. Need I say to you, that 
 however justified on the score of necessity, this mode of 
 preceeding is not perfectly congenial with the spirit and 
 principles of our constitution and laws. I do not mean 
 to say, that this power is improper, and ought to be cut 
 up by the roots by the legislature ; but that it ought to 
 be exercised with caution, and in cases of real necessity,
 
 MOTION FOR AN ATTACHMENT. 347 
 
 1st Bacon, 181, and 4 Blackstone's Commentaries, 286, 
 show, that attachments are issued on the ground of 
 necessity. If it be a doubtful case, since he is not tried 
 in the usual manner, but interrogated to give evidence 
 against himself, the court ought not to stretch the doc- 
 trine, but confine it within those limits which sound dis- 
 cretion requires. Even if an officer of the court acted 
 improperly, yet Bacon has laid it down as the law, that 
 an attachment ought not to be issued against him, if 
 there were no palpable corruption in his conduct. If 
 this be the law, is it not irresistible and conclusive to show 
 that, admitting that General Wilkinson did bring Knox 
 to this place, yet if he were not actuated by palpable 
 corruption, and if no extraordinary circumstance of mis- 
 conduct appeared on his part, the court will not proceed 
 against him in that way. If this caution be used in ex- 
 ercising this extraordinary power in Great Britain, is not 
 this caution ten times more .applicable to, and more de- 
 sirable in, a government like ours? I will mention a 
 case which occurred in Fredericksburg, which has been 
 communicated to me by Judge Roane. Some men were 
 charged in that district court with murder; the grand 
 jury found a true bill against them. The court told the 
 jailer to look to them ; accordingly the man took them 
 out of court; but it was understood next day, that he 
 had permitted them to escape. The court thought it a 
 contempt of the express order of the court, and the 
 question was, in what manner a jailer should be punished 
 for suffering men indicted for murder to go at large. 
 The jailer was willing to encounter the punishment of 
 the law, and the men came back. Judge Tucker thought 
 it certainly a contempt of the court ; but did not sit to 
 give a judicial opinion. Judge Roane, recollecting the 
 general power of courts, and the practice in such cases, 
 and that he was himself a party in the cause, was un- 
 willing to use the power which this law of England con- 
 ferred, and ordered a jury to be impaneled, to determine 
 whether a contempt were intended ? The point was 
 tried, and the jailer was found not guilty. I do not 
 mention this as authority ; but to show with how much 
 caution this summary mode of proceeding is used in 
 this country. In Great Britain they have no fixed con-
 
 348 TRIAL OF AARON BURR. 
 
 stitution, containing fixed principles, by which their par- 
 liament is to be regulated. But in this country we have 
 a constitution which regulates the duties of the different 
 departments of government, and defines the rights of 
 the people. The seventh article of the amendments, 
 adopted as parts of the constitution of the United 
 States, provides, among other things, that " no person 
 shall be subject for the same offense, to be twice put in 
 jeopardy of life, or limb, nor shall be compelled in any 
 criminal case, .to be witness against himself." This 
 amendment is not directly applicable to this subject, 
 but it shows its regard for the great and important rights 
 of the people, and that they are not to be interfered 
 with, but with the utmost respect and caution. What 
 can not be done directly in a criminal prosecution, 
 ought not be attempted indirectly by an attachment. 
 I shall add, on this point, one more observation. 
 General Wilkinson is attending this important prose- 
 cution, under the authority of this court, A sub- 
 poena, obliging him to attend here, has been served 
 upon him. I do not say, that there is a provision 
 in the constitution and laws of the United States, by 
 which witnesses attending their courts, are put on the 
 same footing as witnesses attending courts under the 
 state authority ; but I have understood that the practice 
 in the federal courts is precisely the same. It is, perhaps, 
 grounded .on that clause of the judicial act, which makes 
 the laws of the several states the rule of decision in the 
 courts of the United States, in trials at common law, 
 in cases where they apply. In pages 122 and 278 of the 
 Revised Code of Virginia, the privileges of witnesses 
 are stated. In the former page they are exempted from 
 ordinary process. In the latter, they are privileged 
 from all arrests, except for treason, felony, or breaches 
 of the peace. 
 
 I did not suppose, when I saw the extreme solicitude 
 of gentlemen to bring forward this motion, their chagrin 
 at delay, and their eagerness to rush into the combat, 
 that they would have come forward on such feeble, trem 
 blirig ground, as they have done. 
 
 Mr. Randolph said that suspicion was a sufficient 
 ground for their motion. This is a plain admission, that
 
 MOTION FOR AN ATTACHMENT. 349 
 
 he had no facts to support it ; for if he had evidence, he 
 would have relied on the facts he could prove, and never 
 have called the attention of the court to suspicion. It is 
 one of the last cases in which suspicion ought to be in- 
 dulged. This is not a rule to show cause, but a motion 
 for an attachment. Probable ground might be sufficient 
 to induce the court to grant a rule to show cause ; but 
 not to grant an attachment. To grant an attachment 
 against a man, to have him taken up, brought before 
 the court, and compelled to give evidence against him- 
 self, not on evidence, but on merely probable ground, or 
 what is the same thing, suspicion, is incompatible with 
 every principle of law and of human rights. The evi- 
 dence which it is incumbent on them to produce in sup- 
 port of their motion, ought to produce not suspicion, 
 but conviction. When Mr. Randolph says that suspi- 
 cion may be the ground for an attachment, he goes on 
 a slender basis, which is occupied by the previous rule 
 to show cause. This rule is always granted on showing 
 probable cause. If an attachment were grantable on 
 mere suspicion, what could support a rule to show cause? 
 It must be less than suspicion ! 
 
 But I am wrong to blame Mr. Randolph, because it is 
 the best and strongest ground he could take ; for, with 
 respect to the fact which he ought to prove at this stage 
 of the business, it is so far from being established, that it 
 is clearly disproved. I know, sir, why the motion was 
 made. If I may use another very homely expression, 
 he " let the cat out of the bag." He became more ani- 
 mated, his voice more loud, and his arms more extended, 
 and then he told us of the dreadful union between the 
 civil and military authority. This is bad enough. It is 
 terrible enough to make strangers to our institutions 
 think it an extraordinary mixture of powers. When we 
 hear of this union of the civil and military authority, 
 and the complaint comes from Mr. Randolph, it must 
 excite surprise. Those who never heard of it before, as 
 foreigners, must think that this business is strangly man- 
 aged in this country. I am surprised to hear Mr. Ran- 
 dolph speak in such a manner. Why, sir, he knows that 
 this identical union of the civil and military authority 
 exists in our own government. The civil and military
 
 350 TRIAL OF AARON BURR. 
 
 authority are joined by the constitution of the United 
 States. The president is commander-in-chief of the 
 army and navy of the United States ; yet this constitu- 
 tion, which we all revere, and which we have all sworn 
 to support, contains the very doctrine which Mr. Ran- 
 dolph so eloquently denounced. Even in this humble 
 government of Virginia, where liberty is secure, and 
 where no man apprehends oppression from the govern- 
 ment, the head of the executive is the head of the mili- 
 tary. The governor is the commander-in-chief of the 
 militia when brought into service ; yet Mr. Randolph 
 puts on his best countenance, voice, and gesture to warn 
 the people of this country of a dreadful attack on their 
 liberties, by giving this commission to a lieutenant to 
 serve a subpoena ! 
 
 He ought to have recollected another thing. He is 
 not only a lawyer, but a politician. He knows that it is 
 to this very identical union of the civil and military au- 
 thority, that we are indebted for our liberties in their 
 origin, and since in their preservation. If they were 
 distinct, and exercised by different hands, we should soon 
 see the military have the ascendancy. 
 
 But suppose that Lieutenant Gaines's undertaking to 
 serve the subpoena was wrong, is it a matter of conse- 
 quence to General Wilkinson, who did not know that 
 Gaines had put off his military dress, and assumed in- 
 stead of it, that of a civil officer ? Gaines swears that 
 he never had any previous communication with General 
 Wilkinson on the subject ; and never knew anything of 
 it till the deputation was offered to him. General Wil- 
 kinson never advised it ; but if he had advised him to 
 accept it, it can not be charged as a crime to General 
 Wilkinson. He is able and willing to bear the imputation 
 without shrinking. There could be no impropriety in ad- 
 vising him to-do what was perfectly consistent with the law. 
 
 But Gaines did not give bond for the performance 
 of the duties of his office. What is the result ? That 
 the marshal was authorized to take assistance, and Gaines 
 might innocently have assisted him ; and this was all done 
 not under the military, but under the civil authority. 
 
 [Mr. Hay then referred the court to Graydon's Di- 
 gest of the Laws, p. 264, to show that his observations on
 
 MOTION FOR AN ATTACHMENT. 351 
 
 this part of the subject were correct.] But, sir, the word 
 " military," is formidable in the ears of those who attend 
 courts of justice. It is therefore used. It is true, that he act- 
 ed in taking and keeping Knox, till he secured his attend- 
 ance here. But had gentlemen attended to the evi- 
 dence they would have seen that this was done un- 
 der the authority of the judge. But we hear dis- 
 tinctly those parts of the evidence which favor our 
 own side of a cause, and turn a deaf ear to those parts 
 which are against us. It is only on this principle, that I 
 can account for Mr. Randolph's preference in asserting 
 that Gaines acted as a military character ; whereas it is 
 evident that he acted in his civil capacity, in pursuance 
 of his commission from the marshal, and in obedience to 
 the order of the judge. In this statement he is corrobor- 
 ated by Graham, and not contradicted by any one. He 
 not only says so, but he produces the deputation from 
 the marshal, and the warrant of the judge, for the re- 
 moval. Buc if Gaines did act as a military man, 
 General Wilkinson is not responsible for it, any more 
 than the major or colonel, who were also his military su- 
 periors ; and if he were liable to the party in a civil action, 
 yet not for a contempt of the court. "Yet," says Mr. 
 Randolph, " he is incorporated with Judge Hall, in all 
 his acts ;" and one fact is particularly insisted on as in- 
 corporating them, that of his making the affidavit, that 
 Knox was a material witness; and the result -is, that it 
 Judge Hall put a wrong construction on the law, 
 General Wilkinson is responsible for it. Suppose 
 Wilkinson had gone before Hall, and made an affi- 
 davit to v the materiality of the witness, could Wilkin- 
 son be considered as responsible for any illegal conduct 
 of the j udge, after the affidavit was made ? Making such 
 an affidavit is a lawful act. On what principal can a man 
 who does a lawful act be amenable for the subsequent 
 unlawful acts of another? Will they contend for so 
 monstrous a proposition? Suppose an individual goes 
 before a magistrate and makes an affidavit that he has 
 lost something, which he believes to be in the possession 
 of another; and the magistrate, not knowing his duty, 
 issues his warrant for the purpose of taking up the per- 
 son suspected, to hang him ; would the individual, ihus
 
 352 TRIAL OF AARON BURR. 
 
 submitting his case to the magistrate, be responsible tot 
 the conduct of the magistrate? What does he do? 
 He goes to the magistrate and asks for the interpo- 
 sition of the law, according to the law. Is the ap- 
 plying, but innocent, individual to be accountable for 
 the mistakes and errors of the magistrate ? The position 
 can not be maintained. It was not advanced in so many 
 terms, but it was strongly insinuated in their arguments, 
 or plainly to be inferred from them. 
 
 But another circumstance is relied on. Wilkinson was 
 the commander of the vessel. This is disproved. For 
 it is clearly proved, that Franklin Read was the com- 
 mander, who had a commission to that effect. Though 
 the naval forces were for a time put under the command 
 of General Wilkinson at New Orleans, he had no con- v 
 trol over this vessel at this time. It was natural that 
 General Wilkinson should have offered a passage to the 
 witnesses, if they chose to come in the same vessel that 
 he came in himself. He manifested the same disposition 
 when he came to Hampton. He got a vessel for their 
 accommodation and its cheapness. It only proves his 
 humanity and his disposition to oblige them, and make 
 their passage as comfortable as possible. 
 
 Yet, said Mr. Randolph, with an increased emotion 
 and elevation of voice, that would have surprised me if 
 I had not known his object, " why were subpoenas sent 
 to him, if not to be used with military authority?" Sup- 
 pose it was correct, that the attorney-general had sent a 
 number of subpoenas with a view to be used with military 
 authority, and that the commander-in-chief receives them. 
 What does he do ? What would any man suppose he 
 would do, or had done, if he were to form his opinion 
 from what has been said of his character here? He 
 would suppose that he had called about him his janizaries 
 and his mamelukes ; that he had sent one detachment to 
 one part, and another to another, through the whole 
 country, to search for and seize all persons who had the 
 misfortune to be witnesses: that this military despot had 
 sent out his myrmidons and military men, and without 
 any regard to law or justice, had seized, confined, and 
 transported as many as his arbitrary caprice required. 
 This, and worse he would have done, if his character
 
 MOTION FOR AN ATTACHMENT. 353 
 
 were such as it has been depicted. But what did this 
 mighty lord of the west do with all these witnesses ? He 
 gave the subpoenas to Mr. Gaines to serve them, and 
 told him, that if there should be any difficulty, to apply 
 to a lawyer for advice how to act. And this is the mighty ' 
 complaint against Wilkinson and Gaines! 
 
 Do gentlemen think that they make a favorable im- 
 pression on the public mind, when things in themselves 
 so innocent, are represented as acts of the highest enor- 
 mity? When things so white are thus discolored? If 
 they do, they are mistaken in all their calculations. 
 
 But, sir, General Wilkinson is guilty again, because he 
 ventured to ask Knox, if he were not afraid after what 
 had happened. After what? "After I have arbitrarily 
 seized and sent people to a great distance." What right 
 had Mr. Randolph to put these things in his mind, or 
 these words into his mouth ? I will venture to say, that 
 they do not express his real intention. It is obvious 
 that his meaning was, " Are you, who are an associate of 
 Burr, and have been of his party, not afraid to appear 
 before me?" I will ask, whether it be right to ascribe 
 to General Wilkinson sentiments which are not his own, 
 and then to condemn him for the sentiments thus im- 
 properly imputed to him ? Yet, this is the deplorable 
 necessity to which gentlemen are driven ! 
 
 Mr. Randolph says, that Burr and Wilkinson are anti- 
 podes to one another. Indeed they are; but in what 
 sense they are so is a consideration which I need not 
 mention. 
 
 But, says Mr. Randolph, " it is the intention of Wilkin- 
 son to ruin Burr. He must perish unless the other fall," 
 We were charged with going too far, in drawing unau- 
 thorized conclusions and inferences ; but Mr. Randolph 
 has gone much further than any of us, and has substituted 
 assertion for proof. He has stated, what is an unsup- 
 ported assumption, that the reputation of Wilkinson 
 depends on the destruction of Burr. I will not retort the 
 charge ; but I will say, that it is more important to Burr 
 to destroy Wilkinson's reputation. He knows how impor- 
 tant it is to the accused to batter down the reputation of 
 General Wilkinson. The accused knows it, and professes 
 it by his conduct; because from the commencement of 
 23
 
 354 TRIAL OF AARON BURR. 
 
 the prosecution till this time, the object of every step 
 taken, and motion made, was to beat down the character 
 of General Wilkinson : but if they were to accomplish it, 
 it would be the same to their client ; it could not save 
 him. But they would say, that sf it would not be victory, 
 it would at least be revenge. The arguments of Mr. 
 Randolph are so irrelevant, and the cases he adduced so 
 inapplicable, though plain and not denied by us, that 
 I shall not take up time to worry myself and the court, 
 in proving points which are too plain to admit of contro- 
 versy ; but I will trouble the court with a few more 
 observations, without noticing his law authorities. I 
 shall boldly contend, that there was not only not a single 
 precedent among them, but that there was not even the 
 least justification for the present motion; that they have 
 no real bearing on the subject. They were either general 
 principles, which are not denied, but which do not apply 
 to this subject, or relate to the conduct of the officers of 
 the court, in serving criminal and other process. But 
 he stated with great solemnity, that " any force to swerve 
 a witness from the right statement of facts, was illegal 
 and improper." In order to apply this, he is obliged to 
 put down his own witness. The objection is, to the taking 
 testimony from the witness. But the witness said, that 
 there was no coercion used in taking his evidence ; on 
 the contrary that he was treated with courtesy. The objec- 
 tion operates equally against them ; for they have taken 
 his affidavit in this city. Admitting there was no degree 
 of terror or force used. This has no sort of application. 
 
 But Mr. Randolph says, that " no force is to be used 
 in getting a witness to attend." This is not law. If the 
 accused had been committed in the same district where 
 the witness resided, and the judge had sent forward the 
 accused, he would have been authorized to compel the 
 witness to come, and if he did not enter into a recogni- 
 zance he would have him put in jail. The spirit of the 
 law is, that a witness who is material, and refuses to 
 enter into a recognizance, may be removed by force. These 
 are the provisions of the act of congress. Force may be 
 and is used. The law directs that it shall be used. But 
 the position, if it were correct, does not apply to General 
 Wilkinson, because he did not bring the witness.
 
 MOTION FOR AN ATTACHMENT. 355 
 
 It was said by Mr. Randolph, that it was a " most 
 dangerous power in 'any government, to extort testimony 
 ex parte" Is General Wilkinson responsible for all ille- 
 galities committed in the western country? Mr. Jack- 
 son, they say, has been guilty of great impropriety in 
 taking evidence. But notwithstanding this blame, which 
 they so eagerly attempt to attach to General Wilkinson, 
 he has not taken any evidence at all. All he did was to 
 make inquiry and take notes of Knox's evidence. But 
 they ask why were these notes taken? To satisfy his 
 own mind that he was a material witness. 
 
 But there was one observation which Mr. Randolph 
 used, with great warmth and solemnity, that "a citizen 
 of the United States was thrown into jail by corporal 
 force, and transported for the crime of being a witness." 
 Is it not surprising, that they take such ground as this? 
 Is it not strange to hear gentlemen of great experience, 
 who have been intrusted with the management of impor- 
 tant business, gravely speaking in this way ? to hear Mr. 
 Randolph say, that " a citizen has been thrown into jail 
 and transported?" These are sounding and imposing 
 words. Does not the court know that these are things that 
 may be done by law. The court well knows, that under 
 the law of congress it is the business of a judge to recog- 
 nize witnesses, and if they refuse to enter iifto a recog 
 nizance, or fail to attend, to commit them and transpor*- 
 them by land or water, as may be most convenient, tc 
 the place of trial. Is not this power expressly given by 
 the words, " it shall be the duty of the judge of that dis- 
 trict where the delinquent is imprisoned, seasonably to 
 issue, and of the marshal of the same district to execute 
 a warrant for the removal of the offender and the wit- 
 nesses, or either of them, as the case may be, to the district 
 in which the trial is to be had ? " * 
 
 Mr. Randolph, without a single tittle of evidence, and 
 without any principle of law to support him, prays in 
 vain for a favorable decision. All the authorities which 
 he introduced are extremely vague ; they do not show in 
 the smallest degree that the facts alleged, if proved, would 
 amount to a contempt of the court. Superadded to all 
 this long catalogue of black crimes, you are told, with 
 great solemnity, tfeat a citizen of a free country has been
 
 356 TRIAL OF AARON BURR. 
 
 transported by military authority ; not for a violation of 
 the laws of his country, but because he was a witness. Sir, 
 I will not animadvert on his mode of conducting a cause ; I 
 will only remark, that those observations when made, were 
 introduced with the utmost solemnity, expressed with 
 the strongest and most forcible voice, heard by every 
 person within the walls of this house, and were certainly 
 intended by the speaker to excite indignation against 
 General Wilkinson, and sympathy for the accused ; and, 
 after all, it amounts only to this, that a witness may be 
 compelled to attend, if he do not do it voluntarily. 
 
 The next observation was urged with precisely the 
 same view. He seems to tremble when he fancies that 
 he sees the prostration of all our rights, and of our in- 
 dependence ; when with uplifted hands and eyes, and 
 elevated voice, he tells you of the military sporting with 
 the rights of the citizens! If it were mere sport, he 
 need not be so much alarmed. But what was this mili- 
 tary sport, against which he so loudly declaimed? It 
 was simply this, that a captain, with the permission of 
 his general, and after a deputation by the marshal, 
 served a subpoena on a witness, and brought him with 
 him, being himself a witness and obliged to come! I 
 am not surprised that gentlemen wander from the point, 
 because otherwise there would be very little ground for 
 them to stand upon. 
 
 He talks of the robbery and plunder of the post- 
 offices. For what purpose ? Suppose the fact to be as 
 it is assumed without the slightest proof. Let General 
 Wilkinson, or any other person who has committed the 
 act, be prosecuted according to law. Let the parties 
 injured apply to the law, and the parties who are guilty 
 be punished. But though the acts thus ascribed to 
 General Wilkinson were clearly proved, they could not 
 be considered as a contempt of the court. Everything 
 is ascribed to General Wilkinson, in order to furnish a 
 sort of pretext for denouncing him to the world. 
 
 Being fatigued myself, and believing the court to be 
 so also, I shall not trouble it with any further observa- 
 tions. I trust that the court will render a correct judg- 
 ment, according to the evidence and law. 
 
 While Mr. Hay was speaking the grand jury entered,
 
 WILKINSON'S LETTER TO BURR. 357 
 
 and their foreman, Mr. Randolph, addressed the court 
 to the following effect : 
 
 May it please the court : 
 
 The grand jury have been informed that there is in 
 the possession of Aaron Burr a certain letter, with the 
 post mark of May I3th, from James Wilkinson, in 
 cyphers, which they deem to be material to certain in- 
 quiries now pending before them. The grand jury are 
 perfectly aware that they have no right to demand any 
 evidence from the prisoner under prosecution, which 
 may tend to criminate himself. But the grand jury 
 have thought proper to appear in court to ask its assist- 
 ance, if it think proper to grant it, to obtain the letter 
 with his consent. 
 
 Mr. Burr rose, and asked whether the court were 
 about to give an opinion? 
 
 The Chief Justice stated, that the court was about to 
 say that the grand jury were perfectly right in the opin- 
 ion that no man can be forced to furnish evidence 
 against himself; he presumed that the grand jury wished 
 also to know whether the person under presecution 
 could be examined on other questions, not criminating 
 himself? 
 
 Mr. Burr declared that it would be impossible for 
 him, under certain circumstances, to expose any letter 
 which had been communicated to him confiden- 
 tially ; how far the extremity of circumstances might 
 impel him to such a conduct, he was not prepared to 
 decide ; but it was impossible for him even to deliberate 
 on the proposition to deliver up anything which had 
 been confided to his honor; unless it were extorted from 
 him by law. 
 
 Mr. Randolph. We will withdraw to our chamber, 
 and when the court has decided upon the question, it 
 will announce it to the grand jury. 
 
 The Chief Justice knew not that there was any objec- 
 tion to the grand jury calling before them and examin- 
 ing any man as a witness, who laid under an indictment. 
 
 Mr. Martin said there could be no objection. 
 
 Mr. Randolph said he was afraid that the object of ^he 
 
 grand jury had been misunderstood by the court. The 
 
 rand jury had not appeared before the court to apply
 
 358 TRIAL OF AARON BURR. 
 
 for the person of Aaron Burr to obtain evidence from 
 him, but for a certain paper, which might or might not 
 be in his possession ; and upon that paper being or not 
 being in his possession, and upon its being possible or 
 not possible to identify that paper, it might depend 
 whether Aaron Burr himself were or were not a mate- 
 rial evidence before them. And then the grand jury 
 withdrew. 
 
 When Mr. Hay had concluded his argument, Mr. 
 Mac Rae addressed the court. He was solicitous, he 
 said, to lay a communication before it, on a circumstance 
 which had lately transpired. The grand jury had asked 
 for a certain letter in cyphers, which was supposed to 
 have been addressed by General Wilkinson to the ac- 
 cused. The court had understood the ground on which 
 the accused had refused to put it in their possession, to 
 be an apprehension lest his honor should be wounded, 
 by his thus betraying matters of confidence. I have 
 seen General Wilkinson, sir, since this declaration was 
 made. I have informed him of the communication 
 which has thus been made ; and the general has ex- 
 pressed his wishes to me, and requested me to express 
 those wishes, that the whole of the correspondence be- 
 tween Aaron Burr and himself, may be exhibited before 
 the court. The accused has now, therefore, a fair oppor- 
 tunity of producing this letter; he is absolved from all 
 possible imputation ; his honor is perfectly safe. 
 
 Mr. Burr. The court will probably expect from me 
 some reply. The communication which I made to the 
 court, has led, it seems, to the present invitation. I have 
 only to say, sir, that this letter will not be produced. 
 The letter is not at this time in my possession, and Gen- 
 eral Wilkinson knows it. 
 
 Mr. Mac Rae hoped that notice of his communication 
 would be sent to the grand jury. 
 
 Mr. Martin hoped that Mr. Burr's communication 
 also would go along with it. 
 
 The Chief Justice was unwilling to make the court the 
 medium of such communications. 
 
 Mr. Mac Rae hoped that the court would notify his 
 communication to the grand jury, and for an obvious 
 reason. When the grand jury came into court to ask for
 
 INDICTMENTS BY GRAND JURY. 359 
 
 the paper, what did the accused say? Did he declare 
 that it was not in his possession ? No : he merely said 
 that honor forbade him to disclose it. The inference 
 undoubtedly was, that he had the paper, but could not 
 persuade himself to disclose it. And what, then, must 
 have been the impression of the grand jury ? A cloud of 
 suspicions must have fastened itself upon their minds ; 
 suspicions unjustly injurious to the character of General 
 Wilkinson ; and which the present communication may 
 at once disperse. It is but justice therefore, to General 
 Wilkinson, to whom the inquiries of the grand jury may 
 at present relate, to give them the benefit of this infor- 
 mation. 
 
 Mr, Burr. General Wilkinson, sir, is extremely wel- 
 come to all the eclat which he may expect to derive from 
 this challenge ; but as it is a challenge from him, it is a 
 sufficient reason why I should not accept it. But as the 
 remarks of the last gentleman seem to convey some re- 
 proach against me, (which no man who knows me can 
 believe me to deserve) it may be proper to say, that I 
 did voluntarily, and in the presence of a witness, put the 
 letter out of my hands, with the express view, that it 
 should not be used improperly against any one. I wished, 
 sir, to disable any person, even myself, from laying it be- 
 fore the grand jury. General Wilkinson knows this fact. 
 
 The Chief Justice then reduced these communications 
 to writing, and transmitted them to the grand jury. 
 
 Mr. Burr. Let it be understood that I did not put 
 this letter out of my possession, because I expected the 
 grand jury would take up this subject ; but from a suppo- 
 sition that they might do so. 
 
 Mr. Wickham, about to speak, was interrupted by the 
 entrance of the grand jury; when Mr. Randolph, their 
 foreman, informed the court, that they had agreed upon 
 some presentments ; which he then delivered into the 
 hands of the clerk. The clerk read as follows : 
 
 " The grand inquest of the United. States, for the dis- 
 trict of Virginia, upon their oaths, present, that Jona- 
 than Dayton, late a senator in the congress of the United 
 States, from the state of New Jersey ; John Smith, a sen- 
 ator in the congress of the United States, from the state 
 of Ohio ; Comfort Tyler, late of the state of N:\v York ;
 
 360 TRIAL OF AARON BURR. 
 
 Israel Smith, late of the state of New York ; and Davis 
 Floyd, late of the territory of Indiana, are guilty of trea- 
 son against -the United States, in levying war against the 
 same; to wit, at Blannerhasset's island, in the county of 
 Wood, and state of Virginia, on the I3th day of Decem- 
 ber, 1806. 
 
 " Upon the information of 
 
 William Eaton, Erick Bollman, 
 
 Peter Taylor, Jacob Allbright, 
 
 Charles Willie, John Graham, 
 
 Samuel Swartwout, George Morgan, 
 
 John Morgan, Thomas Morgan, 
 
 Elias Glover, D. Woodbridge, jun'r. 
 
 David C. Wallace, Edmund B. Dana, 
 
 John G. Henderson, Alexander Henderson, 
 
 James Wilkinson, HughPhelps, 
 
 Jacob Dunbaugh, John Monholland, 
 
 Chandler Lindsley, James Knox, 
 
 William Love, Thomas Hartly, 
 
 Stephen Welch, James Kinney, 
 
 Samuel Moxley, David Fisk. 
 
 Benjamin H. Latrobe, 
 
 JOHN RANDOLPH, Foreman." 
 
 The grand jury, continued Mr. Randolph, have no 
 further presentments to make. He then delivered two 
 papers which they had received from the court. The 
 one was a cyphered letter, addressed to H. Winbourn ; 
 the other was the letter to Colonel Morgan. 
 
 Chief Justice. Mr. attorney, have you anything more 
 for the grand jury. 
 
 Mr. Hay. I can have all the indictments ready to be 
 laid before them to-morrow. 
 
 Mr. Taylor (from Norfolk). Is it not customary for 
 the attorney to file informations upon these present- 
 ments? Is there any necessity for detaining the jury ? 
 Some objection was made. 
 
 Mr. Randolph. May not the bills be laid before an- 
 other grand jury, as the parties presented are not now in 
 custody ? 
 
 Mr. Hay. That course would be productive of great 
 inconvenience. All the witnesses are now here ; and 
 they will not, perhaps, appear before another grand jur. ,
 
 MOTION FOR AN ATTACHMENT. 361 
 
 and the present jury are already in possession of all the 
 evidence. 
 
 Mr. Randolph had hoped that they would be dis- 
 charged. He was not anxious on his own account, but 
 there was one of the jury peculiarly and delicately situ- 
 ated, who wished to return to his family. 
 
 Mr. Taylor observed to the court that a very afflicting 
 circumstance, of a domestic nature, made him peculiarly 
 anxious to return home. 
 
 Mr. jFfaywa.5 extremely sorry that he could not gratify 
 the wishes of the jury; but the interest of the United 
 States forbade him. He would have the indictments 
 ready at any hour in the morning, that the jury would 
 name. Nine o'clock was mentioned, and the jury were 
 then adjourned to that hour. 
 
 Mr. Wickham then addressed the court to the follow- 
 ing effect : 
 
 I should envy the gentleman, last up, the peculiar fe- 
 licity of never being in the wrong ; and that happy 
 ductility of judgment, which enables him to apply other 
 gentlemen's arguments to suit his own purposes, and to 
 view everything on his own side as perfectly clear. The 
 praise of General Wilkinson is his great object. His 
 pure virtue and disinterested patriotism constantly ex- 
 cite his utmost zeal, and form the theme of his finest 
 eulogies. Of this object he has never lost sight ; but 
 his own argument did not make much impression on his 
 own mind ; the further he went on, the weaker it was. 
 Whether this were produced by some supervening 
 doubts on the subject, or because what is deemed clear 
 requires no argument, I will not undertake to determine. 
 It would, however, save much time, if the gentleman 
 would introduce a short formula, referring to his former 
 arguments in praise of General Wilkinson, instead of 
 perpetually repeating them. On what ground has the 
 gentleman on the other side gone on to argue so elabor- 
 ately and zealously, if he think the case so perfectly 
 plain ? If it were so perfectly clear as he affects to con- 
 sider it, why did he address so long an argument to the 
 court? Did he believe so much labor necessary to 
 satisfy the minds of your honors that the case was so 
 very plain ?
 
 362 TRIAL OF AARON B URR. 
 
 But, waiving all these considerations, I mean to con- 
 fine myself to the point. It is to the court and the 
 court alone, that I mean to address myself. The gentle- 
 man on the other side insists, that we have made no 
 specific charge against General Wilkinson. We can not 
 help it if he do not understand us; but we have stated 
 a specific charge in terms as plain as any in the English 
 language. If he do not comprehend it, perhaps it is 
 because our arguments have not as much weight with 
 him as his own. It is extremely difficult to conquer 
 prejudice. Our charge is, that there have been acts in 
 the highest degree illegal, done by General Wilkinson, 
 under color of the process of this court ; that a citizen 
 has been dragged by military force one thousand two 
 hundred miles, for the crime of being a witness, and 
 having a subpoena served on him. We contend, that 
 this is a direct invasion of the liberty of the citizen ; an 
 abuse of the process, and a contempt of the court ; and 
 deserves a most severe punishment, if we can bring it 
 home to General Wilkinson, of which we have no doubt. 
 We have supposed that the judge's warrant was merely 
 a void act ; because it was illegal. We have supposed, 
 that calling on the judge, an officer without authority, to 
 make out a warrant which was neither legal in form nor 
 substance, but a mere attempt to give the semblance of 
 legality to what they knew to be illegal, was an aggrava- 
 tion of the offense. 
 
 Gentlemen say that it was only a judicial act, in which 
 a judge may be mistaken without being liable for his 
 mistake. Will the gentleman contend that an illegal 
 warrant, issued by a magistrate having no authority to 
 act, can have any effect ? Whatever he does, without 
 having jurisdiction, is void, and has not the least valid- 
 ity ; if he err, his mistakes are not excused. But if he 
 have jurisdiction, and a right to act on the subject, he is 
 not responsible for errors of judgment. There is nothing 
 better settled, than that distinction between cases where 
 a magistrate has authority to act, and cases where he has 
 not. In the former, his mistakes of judgment are ex- 
 cused ; but in the latter, he is. personally responsible for 
 his acts, and his misconception of the law does not in 
 the least excuse him.
 
 MOTION FOR AN ATTACHMENT. 363 
 
 Another observation is, that in the lowest as well as 
 in the highest offenses, all are principals. Every person 
 concerned in an illegal act is equally guilty, in the eye 
 of the law, with the person most active. The question, 
 then, arising on this particular case, is whether this act 
 of violence, this abuse of the process of this court were 
 procured or aided by General Wilkinson, or were, as- 
 sented to by him, either before or after the imprison- 
 ment complained of? If he acquiesced in the mischief 
 done, or assisted in it, he is as guilty as if he had first 
 contrived it. Every person who assents to, or aids in, 
 the completion of an illegal act, is a trespasser ab in- 
 itio. 
 
 Instead of wandering into the wide field of declama- 
 tion, to palliate or justify those illegal acts, gentlemen 
 ought candidly to have said, " We admit the guilt of 
 those inferior agents, by whom the acts were committed, 
 but we insist that General Wilkinson is innocent." No 
 sir, not choosing to rely on his innocence, they under- 
 take to show that the act itself, if not innocent and 
 justifiable, is at least excusable ; and they censure us for 
 making this motion, as if we had no interest in it. They 
 tell us that- " the United States have not been injured, 
 and make no motion." Sir, if the officer of the United 
 States do not choose to resent this indignity to the 
 court, which goes to sap the foundation of justice, is 
 that a reason why the party injured should not lay it 
 before the court ? This is the cause of the United 
 States ; it is the cause of every man who comes forward 
 as plaintiff or defendant. Every man feels an interest 
 to keep the fountain of justice pure and uninterrupted. 
 
 They ask, " was the witness brought here to speak 
 truth?" I hope this man did say the truth. I am sure 
 he did say the truth ; because the witnesses they relied 
 upon, to exculpate General Wilkinson, proved that 
 everything he said was true. They confirmed not only 
 all he said, but supplied every omission in his chain of 
 evidence. But, sir, has fear no effect? Has it no opera- 
 tion on the human mind ? If this man had nerves 
 strong enough to bear such treatment, are we sure that 
 the fortitude of others will not be shaken ? If the court 
 sanctioned the practice of bringing witnesses to the bar
 
 364 TRIAL OF AARON BURR. 
 
 as criminals, will it not have the practical effect, in many 
 instances, of preventing impartial evidence? Can we 
 expect from a man dragged as a felon, that manly dis- 
 closure of facts, which distinguishes a firm and inde- 
 pendent mind; and which neither the fear of offending, 
 nor the hope of pleasing any party, however powerful, 
 can prevent from exculpating or criminating according 
 to truth and justice? Was not hope as well as fear 
 used ? On one side you have a sum of money and other 
 emoluments ; on the other, ruin and disgrace. On the 
 one hand you have every prospect of advantage; on the 
 other of being dragged in chains! Can it be doubted, 
 that if this practice be tolerated, a witness, allured by 
 h9pe on one side, and alarmed by fear on the other, will 
 deviate from the truth? If there be a deviation, it is 
 on the side of the prosecution ; for which way they wish 
 it can not be doubted. The man who avows maxims of 
 this sort, for the attainment of any end, will not be 
 scrupulous as to the means which he employs to secure 
 it. But another view in which this subject ought to be 
 placed is this: Mr. Burr in justice and law stands on an 
 equal footing with his accusers. He ought, if possible, 
 to be so in fact ; but we know that it is impossible ; that 
 every disadvantage operates against every man who is a 
 prisoner ; and that every advantage is in favor of the 
 prosecution. On one side all the means of procuring 
 evidence are restricted; on the other the means of com- 
 manding testimony for the prosecution are unrestrained 
 and abundant. An officer appointed by the government, 
 and liable to be turned out of office at its pleasure, 
 summons the witnesses. If he be a firm and indepen- 
 dent man, determined to do his duty correctly, at all 
 hazards, so much the better; but if not, we know how 
 his bias will be. The public treasury may be emptied 
 in collecting witnesses and employing affidavit-men ; 
 and, in addition to all these means, if there be unwilling 
 witnesses, or any who suggest doubts, they are brought 
 by force to give evidence. But, if we have unwilling 
 witnesses, who can testify the truth in our favor, we 
 have nothing but the naked process of subpcena to 
 compel their attendance. There are great advantages 
 on the part of the prosecution, which ought not to be
 
 MOTION FOR AN ATTACHMENT. 365 
 
 carried any further. This is an unfair advantage to the 
 prosecution, which this court ought to take from them. 
 But, "we have made this motion, in order to make im- 
 pressions on the public mind." I will not waste the 
 time of the court in inquiring who have wasted 
 most time. We have been obliged to follow the gentle- 
 men in this course. It will be recollected by the court, 
 that they have repeatedly attempted, in this court, to 
 advocate and foment those strong prejudices, which 
 have been industriously, and but too successfully excited 
 against Mr. Burr in the country. They still continue their 
 effects to create and increase those prejudices. I ask, 
 whether it were to the public or to the court that those 
 remarks were addressed ? What has the court to do 
 with motives? But if motives be discussed, did they 
 not wish to influence the public mind, at the very mo- 
 ment when they accused us of it? Mr. Burr is not 
 obliged to account for his motives. We are correcting 
 that influence on the public mind, which has been im- 
 properly produced. But there is a motive, and a very 
 powerful one, to justify this motion. We know not how 
 long this prosecution may be continued. We know not 
 how long this practice may be continued. We wish this 
 court to put its veto upon it, and act in terror em, to pre- 
 vent such oppressive and unjustifiable practices hereafter. 
 For as long Us the prosecution lasts, this offense may be 
 repeated, and therefore ought to be repressed. 
 
 But, " suppose General Wilkinson to be the man who 
 has dragged a citizen by military force, from one end 
 of the country to another, it is only a mistake of the 
 law." Does the gentleman forget the legal maxim, that 
 "Ignorance of the law excuses no one ?" But if this 
 were not the law, and ignorance were an excuse, can it be 
 believed, that this was a mistake proceeding from igno- 
 rance? General Wilkinson is in possession of the highest 
 military office under the government. Can a man in his 
 elevated station, be so ignorant as to believe, that he can 
 drag a man, as a felon, twelve hundred miles for the 
 crime of being a witness? If he be this ignorant man, 
 and if he commit acts in the highest degree tyrannical, 
 through ignorance, what shall we say of the government 
 which appointed him ? Sir, the government knew that
 
 366 TRIAL OF AARON BURR, 
 
 he was a man of talents, and had no right to believe, that 
 he would do these things ; or, if he should, that he would 
 not be personally responsible for them. No man will be- 
 lieve that the government thought, or that he himself 
 thought, that he could assault or imprison any man law- 
 fully or with impunity. There is hardly a boy out of his 
 hornbook, that does not know better than that such acts 
 could be legal. I hope we shall hear no more of the 
 ignorance of General VVilkinson. 
 
 But we are told, that we are guilty of a contradiction 
 that can not be reconciled. The gentleman says, " if 
 Wilkinson had stopped Knox and prevented him from 
 attending as a witness it would have been a contempt of 
 the court ;" and we are asked, " if it be a contempt 
 to stop him, how can it be a contempt to bring 
 him, as the acts are opposite 'in their nature?" This 
 is a most singular argument. Things may be opposite, 
 and yet be wrong. Extremes are frequently wrong. It 
 would be a strange thing if General Wilkinson could have 
 carried this man from Richmond to Norfolk, by force, 
 and be liable for his conduct ; and yet if he carried him, 
 in like manner,- from Norfolk to this place, that he should 
 not be equally liable. These acts are opposite in their 
 nature, and are equally contrary to law. Suppose Knox 
 had been brought in irons, and used cruelly (for Wilkin- 
 son used no more cruelty than suited his pufposes), would 
 he not be responsible for so maltreating a witness under 
 the protection of the court. 
 
 But the gentleman says, that it was stated to be an at- 
 tack on the liberty and privileges of a citizen, but that 
 "it shrinks into nothing; " that the offense was only to 
 compel an unwilling witness to attend ! And does the 
 gentleman seriously contend, in this country ,*and in this 
 court, that it is a venial offense to cast a man into prison, 
 and to force him to come twelve hundred miles, with 
 only the authority of a subpoena? Are the liberties of 
 the people of this country dependent on so fine a thread, 
 that any man, clothed with military authority, can use 
 his power or force over any citizen of the United States, 
 if he have a subpoena in his pocket ? Any party having 
 a cause in court, may have a subpoena to summon any 
 other person. I remember, the other day, that these gen-
 
 MOTION FOR AN ATTACHMENT, 367 
 
 tiemen admitted, that a subpoena might issue against Mr. 
 Jefferson, and that his high station, of chief magistrate, 
 did not exempt him from it ; that all the citizens of this 
 country were on grounds of perfect equality. We agree 
 that their doctrine is correct. Let us see the application 
 of it. If all the people be on terms of equality, they were 
 so when the process which issued, requiring the president 
 to give testimony, was served. Suppose it had been put 
 into the hands of half a dozen myrmidons, and that after 
 serving it, they had dragged him by force from Washing- 
 ton to this place ; what would have been said of such con- 
 duct ?' Would it not have been an offense that ought to 
 be severely punished? Yet there is no difference 
 between Mr. Jefferson and Knox, with respect to 
 their leg-al right of exemption from such acts of vio- 
 lence ; and yet they contend, that the treatment 
 of Knox was correct and lawful. Are gentlemen 
 serious, when they urge arguments like these? I come 
 now to the inquiry, What are the facts which are said to 
 justify or excuse the ill-treatment complained of? And 
 first, as to Mr.'Hall, whose warrant, though null and void, 
 is brought forward to bolster up General Wilkinson. He 
 is the mere puppet of Wilkinson. They say that he and 
 General Wilkinson were at variance. It is very probably 
 true ; and General Wilkinson might be at variance with 
 every man at New Orleans, except his own immediate de- 
 pendents. Was there no motive to operate on Judge Hall ? 
 Was there not such a passion as fear? Hall knew what 
 Wilkinson had done, and what he could do ; and when he 
 sent him a message, to devise some process to bring Knox 
 by force to this court, Hall knew, that the requests were 
 commands. Observe how the transaction originated. 
 Wilkinson's motives are too obvious to admit of a doubt. 
 He sends for Knox ; treats him with particular courtesy ; 
 offers him his services ; asks him if he wanted money, and 
 a number of questions concerning Burr; and takes down 
 his evidence in writing, differently from the facts, and not 
 as he told them. These are all done by General Wilkin- 
 son, without the intervention of any other human crea- 
 ture. It is obvious, that General Wilkinson did not go 
 directly to the object he had in view, but amused him at 
 first with some observations about Dunbaugh ; about all
 
 368 TRIAL OF AARON B URR. 
 
 of whose measures he knew more than the witness 
 himself. After this solicitude shown to get testi- 
 mony from the witness (and such only as suited 
 his purposes) we find the process of this court used. 
 Lieutenant Gaines, who commanded at Fort Stoddert, 
 one hundred, or perhaps two hundred miles from New 
 Orleans, in pursuance of an order from the secretary at 
 war (a military order, gentlemen will admit) is di- 
 rected, after serving some of the subpoenas, sent 
 to him on some persons under his own command, 
 to go to General Wilkinson, and to deliver him the 
 subpoenas ; and somehow or other, they get from 
 General Wilkinson's hands into his own. % We have 
 brought the case of Knox before the court, in order to 
 try the principle, and to ascertain whether such practices 
 are to be tolerated. General Wilkinson tells Gaines that 
 Knox is an important witness and must be summoned. 
 He recommends to hrni to summon him. Is not a rec- 
 ommendation from a military superior a command? and 
 was not this command to have this man summoned ? It 
 was found that he would not go. What was the next 
 step ? He did not order Gaines to go and consult a law- 
 yer, to know what was right and ought to be done, as 
 gentlemen allege in his defense ; but how Knox was to 
 be brought, and how his own illegal purposes were to be 
 effected. Gaines refers to lawyers ; they give advice how 
 this purpose is to be attained. Wilkinson then gives 
 him further orders. He advises him to go and consult 
 Mr. Hall, and obtain his advice and assistance. A sub- 
 ordinate officer is bound to obey his master's commands. 
 He therefore goes and takes the advice of Mr. Hall. 
 After getting his advice and directions, he goes to the 
 witness, who is a little sulky: and in order to put him 
 into good humor, in this pleasant situation, he is thrown 
 into jail ; and then forced by a military guard on board 
 the vessel, which was under the control of General Wil- 
 kinson ; for he only gave them permission to take a pas- 
 sage with himself. After the witness is deprived of the 
 means of getting his clothes and other necessaries, and 
 sent on board by Dunbaugh, some money is wanted ; 
 forty or fifty dollars must be had. Where is this sum to 
 be got ? Did General Wilkinson give Ganies any order
 
 MOTION FOR AN ATTACHMENT. 369 
 
 respecting it, and what ? He orders him to take the 
 money out of the military chest. This proves that it was 
 for a military, and not a civil, purpose. Why was he rec- 
 ommending, advising, ordering, and referring, this infe- 
 rior officer, unless he were performing a military service? 
 I mean no disrespect to Lieutenant Gaines, but the con- 
 trary. For it is evident that he must have felt himself 
 in a disagreeable situation ; but he was compelled by the 
 authority of his superior officer to execute this request. 
 He obeys ; and when all this had been done, it was not 
 sufficient. There must be a marshal to execute this pro- 
 cess. Lieutenant Gaines, from being an officer of honor, 
 is turned into a bailiff. He was told, " The marshal has 
 already appointed you ; here is a deputation by which 
 you are constituted his deputy to perform this business. 
 It may be unpleasant for you, as an officer, to do this 
 dirty business. You are to have the paper in your pocket 
 that authorizes you to do it ; but you need not do it your- 
 self. You can employ a sergeant or a soldier to do it." 
 
 There was an evident perplexity in Mr. Gaines's testi- 
 mony. It was a perplexity arising from the interference 
 of civil with military duties. He found himself obliged 
 to wear over his military garb the disguise of a catchpole, 
 which, as an officer, must have been extremely repug- 
 nant to his feelings. The perplexity was not in his narra- 
 tive, but arose from the situation in which he was placed 
 by General Wilkinson. 
 
 It would be a waste of the time of this court to show, 
 that General Wilkinson was the prime mover and con- 
 triver of all these rigorous and oppressive proceedings. 
 The gentlemen attempt to devolve the responsibility 
 on Judge Hall, who is said to be a man of honor and re- 
 spectability. You may judge how honorable his situa- 
 tion must have been, when he was forced to obey Gen- 
 eral Wilkinson in manifest violation of law ! Must he 
 not have felt himself degraded, by being compelled to 
 give an oppressive construction of the law, against his own 
 judgment? The judge could not be mistaken as to the 
 law. It is written in plain terms. Can it be supposed 
 that so respectable a judge as he is represented to be, 
 could believe that he had a right to send a witness, as a 
 prisoner, to any place, and in any manner he pleased ; 
 24
 
 370 TRIAL OF AARON BURR. 
 
 and that a witness loses the rights of a citizen the moment 
 he is summoned ? The eulogium pronounced on Judge 
 Hall, disproves every argument they use on the sub- 
 ject. 
 
 But " Mr. Wilkinson asked Mr. Graham to consult Mr. 
 Hall." Mr. Graham delivered his evidence in a most 
 correct and proper manner, and free from perplexity. 
 He proves every feature in the cause that was not proved 
 by Knox and Gaines. They rely on Mr. Graham's testi- 
 mony. To me it is most marvelous that gentlemen can 
 not perceive that his testimony goes directly to fix the 
 guilt, if there be guilt, on General Wilkinson. He says 
 that he was directed by Wilkinson, to ask Judge Hall if 
 there were any legal means of compelling this man to at- 
 tend as a witness ? The evident meaning of this inquiry 
 was this, " Compel him by legal means if you can, but in 
 any event compel him to attend." Every illegal warrant 
 is void. He must have known it to be so. Is it not 
 evident that this communication between Graham and 
 Hall, was made at the instance of General Wilkinson, and 
 with a view to shelter himself under the forms of law ? 
 
 But " if he were a military despot, he would not have 
 regarded them !" When did this happen ? In May, 1807. 
 He must have known what had been done in the United 
 States, and that his conduct had excited universal horror 
 and indignation throughout the country. He is the 
 prime mover, and every act done by others is imputable 
 to him. They were under his control, and compelled to 
 act as they did ; and perhaps they deserve rather the 
 pity, than the censure of the court. He, therefore, was 
 desirous at this time to shelter his acts under the forms 
 and apparent sanction of the law. 
 
 But this is not all, as I had occasion to observe before. 
 A man who sanctions an illegal act, though not the first 
 contriver of it, subjects himself to all the consequences of 
 it. When Knox came on board the vessel, the question 
 is, whether General Wilkinson knew that it was reluc- 
 tantly? General Wilkinson knew most assuredly, that 
 he was put on board against his will, by a military guard, 
 and yet he did not assist him ; for he knew that it had 
 been done in pursuance of his own well-understood wishes 
 and orders. The evidence of Mr. Gaines, collectively
 
 MOTION FOR AN ATTACHMENT. 371 
 
 considered, proves this clearly. Gentlemen say, that the 
 vessel was commanded by Mr. Read. I have seen the 
 young gentleman, and I hope he deserves the character 
 which the gentleman gives him ; but it is clear, that he 
 \vas ready to obey the superior commands of General 
 Wilkinson, and that he knew it to be his duty. Mr. 
 Gaines said, that he was obliged to apply to General Wil- 
 kinson, and not to Franklin Read for a passage on board 
 the vessel. It was the same case with Mr. Graham. 
 When several different commanders, as a military and a 
 naval commander are together, the inferior in rank acts 
 under the command of the superior, and all the navy of 
 the United States at New Orleans was under the com- 
 mand of General Wilkinson. 
 
 But what was done at Hampton ? Mr. Gaines, in every- 
 thing relative to this transaction, only obeyed his supe- 
 rior officer. He therefore t6ld Knox, " You are to under- 
 stand, that you are brought here by virtue of a deputation 
 from Judge Hall to me, and not by the military orders 
 of General Wilkinson. You are to understand that this 
 was really the case." Why? Because General Wilkin- 
 son recommended it. These were terms of mere civility. 
 I dare say, that Bonaparte, when he gives orders, uses 
 civil language ; whenever he gives particular orders to 
 any of his officers, he may say, " You will oblige me, by 
 taking such a place." " You will oblige me, by seizing 
 such a party." "You will oblige me, by conquering such 
 a territory." Or, " by accomplishing any other achieve- 
 ment." . Suppose the officer thus ordered, were to disobey 
 and excuse himself by saying, " I misunderstood you ; 
 you only said you would be obliged to me, if I would do 
 so." Would he not be instantly punished or shot for 
 disobedience of orders ? 
 
 Mr. Hay. That is only the rule on military subjects. 
 
 Mr. Wickham. This was not a civil transaction cer- 
 tainly. But, sir, this was really not so bad after all, be- 
 cause Knox had counsel. That counsel only expressed 
 his doubts to Judge Hall. It is the custom at New 
 Orleans for lawyers to respect and obey judges (it was 
 once so here) ; and this was a respectful expression of 
 his opinion. The judge directed the measure, and the 
 counsel acquiesced. He knew that his doubts would be
 
 372 TRIAL OF AARON BURR. 
 
 of no sort of consequence, and that Knox would be sent 
 round. He knew that Wilkinson directed and controlled 
 all. The gentleman then went on and assumed asa/w- 
 tnlatum, that if no action would lie for this treatment to 
 Knox, there could be no contempt of the court, for which 
 an attachment would lie. It would be a most extraor- 
 dinary doctrine, that the process of this court could be 
 obstructed by the application of force, or even by the 
 fear of violence, and yet that the court could not punish 
 it by an attachment. But I will admit, for the sake of 
 argument, that an attachment for a contempt will not 
 lie, if no action can be maintained by the party injured. 
 But what then ? Will the admission strengthen his argu- 
 ment ? Has the party aggrieved no redress? If to be 
 taken up, confined, and transported as a felon, from one 
 part of the country to another, for no crime, will not 
 support an action, then our courts of justice may as well 
 be shut at once. If an action could not be maintained 
 for such treatment, for what would it lie ? 
 , " But he had good provisions." That is not the point 
 at issue. " But he was at liberty after he was on board." 
 He was not permitted to go on shore, and if he were not 
 satisfied with his situation in the vessel, he was at liberty 
 to walk overboard. The only sort of liberty which he 
 had, was that of jumping into the sea, if he thought 
 proper. 
 
 I will not go into the law of the case, because I am 
 perfectly convinced it is unnecessary. We rely on the 
 broad principle, that whenever the process of the court 
 is abused, it will interfere. But you are advised to imi- 
 tate the judge, who some time ago at Fredericksburg, 
 directed it to be decided by a jury, whether a contempt 
 of the court were intended. I will not undertake to un- 
 dervalue the benefit of the trial by jury on any account ; 
 but there would be a disadvantage to General Wilkinson, 
 in submitting it to a jury. It would not be a boon, but 
 a probable injury. If he be in contempt, how is he to be 
 exonerated ? By his own oath, and not by the oath of 
 a jury. He comes in and answers interrogatories on oath, 
 and if he deny the facts charged, he is acquitted ; or if he 
 explain them to the satisfaction of the court, he is equally 
 cleared; but if he refuse to answer, or if he admit the
 
 MOTION FOR AN ATTACHMENT. 373 
 
 > 
 
 facts as charged, then only is he to be punished. But 
 he is referred to his own oath, and to his own judg- 
 ment, for a complete exoneration. Is this an advantage 
 or a disadvantage ? Is it not more beneficial than to re- 
 fer it to the judgment and the oath of a jury. There can 
 be no doubt that a motion for an attachment is sustaina- 
 ble, for the abuse of the process of the court in any place 
 where it can lawfully issue. 
 
 There is one difficulty which the gentlemen on the 
 other side did not mention, and it is this; that the acts 
 were not done in this district, and that perhaps this 
 court has no cognizance over them. But part of them 
 was done in this district ; force was used at Hampton ; 
 Knox was there continued on board against his will, and 
 that gives the court jurisdiction. 
 
 But, sir, the process of attachment is auxiliary to that 
 of subpoena. The process of subpoena goes throughout 
 all parts of the United States ; and that of attachment 
 ought to be commensurate wJth it. It is in vain to give the 
 power to issue process, without the power to enforce it ; 
 and wherever it is abused or improperly executed, the 
 court can notice it and punish the party for not execut- 
 ing it according to law. This doctrine, I think, was 
 sanctioned by the opinion of Judge Patterson, in the 
 case of Smith and Ogden, in the district of New York. 
 In the case of William Smith, a subpoena had issued, to 
 summon the secretary of state, and the secretary at war. 
 They failed to attend, though the process had been duly 
 served on them. A motion was made to issue an attach- 
 ment against them for their contempt, on various 
 grounds explained by his counsel. The court differed in 
 opinion. One of them (I believe Judge Patterson), was 
 of opinion that a rule to show cause why an attachment 
 should not be issued against them, ought to be granted. 
 But it is unnecessary to dwell on this point, as the gen- 
 tlemen on the other side took no notice of it. In every 
 point of view, therefore, our motion for the attachment 
 is sustainable, and I pray the court to award it. 
 
 Mr. Hay. I will set Mr. Wickham right as to one 
 fact. He had attended so much to what he was going to 
 say himself, that "he did not attend to what we had said. 
 Mr. Mac Rae did press the objection, and he was an-
 
 374 TRIAL OF AARON BURR. 
 
 swered by Mr. Botts. My own opinion, however, is. 
 that the power of the court to attach is commensurate 
 with its process ; and that those gentlemen who were 
 summoned would be liable to an attachment for not 
 attending. I incidentally admitted the doctrine. 
 
 Mr. Martin. I shall make some few observations in 
 addition to what has been said by the gentleman who 
 preceded me. I shall endeavor to show that it was a 
 military transaction from the beginning, till the arrival 
 of Mr. Knox at this place ; and that its direct tendency 
 has been to prevent justice. Let us examine the rights 
 of parties in a court of justice, and the cause as between 
 man and man. Each man has a right to compel the at- 
 tendance of witnesses, to give evidence in support or 
 defense of his rights, in any cause depending therein ; 
 one party has no more right than another to compel the 
 attendance of witnesses. How is the law in this respect, 
 as between the United States and individuals accused of 
 crimes ? Suppose a person 'charged with an offense is 
 arrested : the magistrate before whom he is brought is 
 to hear the statement of the United States, and of the 
 prisoner, and to examine the witnesses brought before 
 him for the purpose of determining whether the prisoner 
 ought to be committed or not. He is then to bind the 
 witnesses in a recognizance to appear before the proper 
 tribunal, at the time appointed for the trial of the pris- 
 oner. But if a witness refuse to enter into such recogniz- 
 ance, he is to be committed to custody till the time of 
 trial, in order to secure his evidence. But this can only 
 be done by the examining magistrate ; and this is all 
 that can be done by the United States, with respect to 
 the witnesses who happen to be present at the examina- 
 tion. But if the United States wish to have the privi- 
 lege of further testimony, they are to apply to that 
 court of justice, before which the trial is to be had, for 
 subpoenas. These subpoenas must issue, be served, and 
 returned executed. After which, if they fail to appear 
 on the return-day, an attachment may be issued against 
 them. This is the whole process in behalf of the 
 United States. How is the defendant to get his evi- 
 dence? His privileges are the same. He is to send 
 subpoenas in like manner for his witnesses; -and if they
 
 MOTION FOR AN ATTACHMENT. 375 
 
 do not attend after they are summoned, they are to be 
 attached. They stand, in point of law, on equal terms; 
 but the United States have superior advantages over 
 the defendant, if they be compelled to resort to the 
 same .means of enforcing obedience. The power and 
 influence of the United States command much greater 
 diligence and alacrity on the part of the officers who 
 are to execute the process, than the means of any in- 
 dividual, laboring under the disadvantage of a public 
 prosecution, can possibly procure. Whatever means are 
 illegally used to procure witnesses for the United States, 
 prevent the stream of justice from flowing purely ; it is as 
 much an interference with the equal administration of 
 justice, as it is by illegal means to keep a witness away 
 from the court. The law only ought to be resorted to 
 on the part of the government and on the part of the 
 prisoner ; and it is as inconsistent with the law, that 
 testimony should be brought by coercion, as that it 
 should be illegally kept away. It is an act injurious to 
 the prisoner, and if we examine, which is the most op- 
 pressive and destructive to personal rights, we shall find, 
 perhaps, that the former is more so than the latter. It 
 is said to be " a singular case." It is, indeed, a singular 
 case. I think, on my conscience, that such a case was 
 never heard of before ; and that such pains were never 
 taken to destroy a person who- was charged with a crime. 
 In addition to the means directly used by the govern- 
 ment, many persons in order to ingratiate themselves 
 with it, have used all the efforts in their power for the 
 attainment of their object. 
 
 The secretary at war wrote a letter to Lieutenant 
 Gaines, who was the commander of a fort, directing him 
 to quit it and execute this business. It was a military 
 command from the secretary at war, ordering him to un- 
 dertake a military journey for civil purposes ; to go to 
 General Wilkinson ; to deliver him a letter ; to serve 
 subpoenas, after filing up the names of the witnesses 
 which he should point out ; to obey the instructions of 
 the attorney-general, and then to come to Virginia. It 
 was by a military command that he received and exe- 
 cuted the subpoenas. It was by a military command that 
 he was to summon himself, and pbey the instructions 01
 
 376 TRIAL OF AARON BURR. 
 
 the attorney-general at New Orleans. Did he serve the 
 subpoenas as a civil officer, or in obedience to the orders 
 of the secretary at war? Did he receive information and 
 directions from the attorney-general at New Orleans, as 
 a civil officer, or pursuant to the directions of the secre- 
 tary at war? By whose orders did he quit his garrison ? 
 To whom was he referred ? To the same person to whom 
 General Wilkinson was referred. Who is this attorney- 
 general ? A man probably of respectability, but ready 
 to be displaced unless he obeyed the government, and 
 assisted in facilitating to the means of causing the wit- 
 nesses to be brought hither. 
 
 General Wilkinson in the next place was to fill up the 
 names of the witnesses. There have been complaints 
 against Mr. Jackson for taking affidavits, but he did not 
 compel men to give testimony ; that was General Wilk- 
 inson's province at New Orleans. He was to find out 
 who were witnesses, and fill up the blanks in the sub- 
 poenas with their names. Has not Mr. Knox told us that 
 Hall had a number of printed interrogatories? That he 
 and Mr. Fort were called on to answer them on oath ? 
 And that their declining to answer them, was the cause 
 of sending them to jail ? Knox has further informed us, 
 that it was on Sunday evening that they were carried be- 
 fore the magistrate. It is well understood that Sunday 
 is not a legal day for such purposes. As Knox declined 
 answering those questions, he was committed that night 
 to the custody of the sheriff, who was to bring him back 
 on Monday morning, and to whom he gave security for 
 his appearance accordingly. Knox says further, that the 
 next day they appeared and were both interrogated ; 
 that he answered some of the questions, but with respect 
 to the other interrogatories, he begged an opportunity 
 to consult a lawyer, lest he should commit himself. Fort 
 refused to answer any of them, and both were put into 
 jail with negroes and felons. It was by the warrant of 
 the judge, that the sheriff carried him to jail. And for 
 what reason? Was it because he refused to appear be- 
 fore this court, to give testimony, or for refusing to 
 answer the printed interrogatories before him? It was 
 certainly for the latter. Did the subpoena by which he 
 was summoned to appear, before this court, require him
 
 MOTION FOR AN ATTACHMENT. 377 
 
 to answer interrogatories before that judge ? No, sir, nor 
 had the judge any legal authority to act he as did. 
 Afterwards an order was given to the marshal to trans- 
 port him hither to give evidence. 
 
 Let me, in a few words, state the improper manner in 
 which the government, or its agents, proceeded. Wher- 
 ever they suspected any person of being able to give in- 
 formation, they carried him before a magistrate, and 
 forced him to give testimony, all on one side ; and wickedly 
 interfered with the purity of the stream of justice. 
 What, sir, would a court of justice permit ex parte testi- 
 mony to be read ? A witness, who can give testimony 
 on the side of the defendant, and for that reason does 
 not suit their purpose, is passed and never heard. They 
 take the evidence for the prosecution in such a manner 
 as they think proper, and designedly trammel and shackle 
 the witnesses so as to be bound by their own- ex parte 
 testimony, when confronted with it on their examination 
 in court. I heard one of the gentlemen, who prosecute, 
 (Mr. Wirt) the other day, with great delight,'"expatiate 
 on the nature of ex parte evidence. He made a most 
 eloquent and correct speech, to prove that such evidence 
 is not dictated by the witness, but by the person who 
 takes the depositions, and that it ought not to be trusted. 
 If ex parte testimony be so improper, when only a motion 
 is made, or when trivial collateral points are discussed, 
 how much more improper must such testimony be in an 
 all-important case, where the honor, reputation, and life 
 of an individual are at stake ? Was it for the sake of the 
 government that General Wilkinson did all this ? I will 
 admit, that holding an important and lucrative office 
 under the government, he might think that he would 
 retain his present advantages and obtain future favor by 
 this conduct. But this was not his only motive. He 
 had everything at stake himself. He was most deeply 
 interested. All those acts of tyranny and oppression, 
 which he committed; the violation of the constitution, 
 the prostration of the judiciary, the arbitrary imprison- 
 ment and transportation of individuals are to be justified 
 by such testimony against the gentleman for whom I am 
 now concerned. Would he not, when thus interested, 
 procure testimony in so garbled a state, that he would be
 
 3/5 TRIAL OF AARON BURR. 
 
 able to prevent the disclosure of the whole truth on the 
 cross-examination of the witnesses ? 
 
 Then, sir, having shown that all these acts had a ten- 
 dency to obstruct and divert the pure stream of justice, 
 let us see what were the immediate and direct acts of 
 General Wilkinson. He invites Knox to his own house. 
 Sergeant Dunbaugh told him that he had invited him. 
 Dunbaugh was surprised that this great god of New Or- 
 leans, who trampled on their rights, and who confined and 
 transported suspected persons, should condescend to 
 converse with such a man as Knox. He thought that it 
 would be an intrusion for such a man as Knox to approach 
 so august and sacred a presence. Knox at first declines 
 going: but afterwards goes. Wilkinson invites him to 
 take a seat, and began by asking him if he knew Dun- 
 baugh ; not that he really wished to know anything 
 about Dunbaugh, whom he already knew well, and con- 
 cerning whom he knew it was probable that Knox knew 
 nothing; but he used it as an introduction. He then 
 proceeded in an insinuating manner, about his coming 
 down the river. "Have you got your money yet?" 
 "No." "How much is due you ?" "One hundred, or 
 one hundred and fifty dollars." " Well I can oblige you 
 with as much money myself." Kind, affectionate man ! 
 What was all this for? To make interest with Knox, 
 and to induce him tp favor his views. " Well, what did 
 you know in all your trip coming down ?" Knox an- 
 swered, that this was not the business he came on. He 
 wants Knox to show him all he knew, and offers him one 
 hundred or one hundred and fifty dollars as a bribe. It 
 was a direct attack on the honesty of the man ; to be 
 sure, it was done very smoothly, as General Wilkinson 
 does everything, when he chooses. A charming oppor- 
 tunity of getting one hundred and fifty dollars, for only 
 telling a few lies! 
 
 Mr. Mac Rae. I hope the gentlemen does not mean 
 to insinuate that General Wilkinson solicited him to 
 say an untruth ; there is no evidence whatsoever to that 
 effect. 
 
 Mr. Martin. I state facts, and insist that its direct 
 tendency was to get him to swear to what was untrue. 
 I do not say, that General Wilkinson said, in downright
 
 MOTION FOR AN ATTACHMENT. 379 
 
 plain terms, " I will give you one hundred and fifty dol- 
 lars for telling what is untrue," but that the direct tend- 
 ency of his conduct was, to induce him to swear to a 
 falsehood, if he were capable of such baseness; and 
 Knox declares, that the offer was made in such a manner, 
 that he considered it as a bribe. He begins again to ask 
 him about his affairs; he takes pen, ink, and paper, and 
 notes down what he said ; but so differently from the real 
 meaning of Knox, that he disapproved of it, and would 
 not proceed further. 
 
 The next thing we hear is, that he receives subpoenas, 
 to fill up the names of the witnesses. That he requests 
 Lieutenant Gaines to find out Knox and summon him ; 
 and that he did summon him under a military order. 
 When summoned, did Knox attempt to refuse to come 
 hither? He was willing to come, and made no other 
 objection, except that the notice was too short: that in 
 his situation, he was not prepared to set off on a journey 
 of twelve hundred miles, and that he had no money, 
 but expected to get some soon, and then he would come. 
 He only refused on account of his want of preparation, 
 and of money. Was this criminal in poor Knox? Be- 
 cause he does not wear a sword and epaulets, and wants 
 the means to enable him to come, he is to be treated as 
 a felon! (It was not then known that the miiitary chest 
 was to be drawn upon, for the purpose of hiring wit- 
 nesses to come.) Why did not General Wilkinson come 
 sopner? He had been subpoenaed before Knox. Why 
 did he not obey the process of the court promptly? He 
 takes his own time; and only comes when he finds it 
 convenient. Was there any attachment sent against 
 him after his great delay? The court, grand jury, and 
 all of us, must wait from day to day to suit his conveni- 
 ence and pleasure; but poor Knox, because his conveni- 
 ence was to be a little attended to, was treated like a 
 felon, thrown into jail, with negroes and criminals; from 
 whence he is sent on board a prison-ship, as soon as it is 
 ready to sail, and brought hither by force. All these are 
 General Wilkinson's acts. He filled up the subpoena 
 with Knox's name, and therefore caused him to be sum- 
 moned. Here there is a chasm in the chain of the evi- 
 dence ; but it is easily supplied. We find him, in tbe
 
 380 TRIAL OF AARON BURR. 
 
 next place, in the hands of the sheriff. How he came 
 into that situation is not absolutely certain ; but no per- 
 son who hears me can doubt, that it was by General 
 Wilkinson's contrivance; as also that he was carried on 
 Sunday before Judge Hall, who found him in the hands 
 of the sheriff, and the next day put him into jail, because 
 he refused to answer the printed interrogatories. Gen- 
 eral Wilkinson applies to Judge Hall, to know how to 
 compel Knox to this court. The answer was, that some 
 person must make an affidavit, that he was a material 
 witness for the United States; and this affidavit is made 
 by General Wilkinson. The very man who is endeavor- 
 ing to bring him by force is the person who does the 
 act, that was said to be necessary to carry that purpose 
 into effect. 
 
 It is said, that General Wilkinson directed Mr. Gaines 
 to consult the attorney-general and some other lawyer. 
 The attorney-general is the person .whom General Dear- 
 borne, the secretary at war, directed Gaines to obey. 
 The other lawyer consulted, is Mr. Duncan, General 
 Wilkinson's aide-de-camp ; who marched before him when 
 he went into a court of justice and bade defiance to the 
 civil government; insulted and resisted the judicial 
 authority of his country, and placed the laws at the feet 
 of the military. Mr. Gaines found Knox in jail among 
 thieves, felons, and negroes, and placed under a guard. 
 It is said, that Gaines took out Knox in his civil garb, 
 and acted as a deputy-marshal; but in truth his military 
 garb hit it all. The gentlemen express doubts wheYi- 
 ever rights are to be supported, but on all other occa- 
 sions, they entertain no doubts at all ; indeed I was 
 astonished, that they did not get up and say, it was the 
 clearest case in the world, that the commitment of Knox 
 was legal. We know who wanted to bring him to this 
 place. It is said, that on the subject of acting as deputy- 
 marshal, Gaines had no previous communication with 
 General Wilkinson. I believe it, because Gaines says so. 
 But the marshal had given a deputation to Gaines for 
 the very purpose of bringing Knox to this place ; and 
 therefore it is reasonable to presume, that it was contrived 
 by Wilkinson. They say that a deputy is not obliged to 
 give bond ; but I say, that in the first place, a deputy
 
 MOTION FOR AN ATTACHMENT. 381 
 
 marshal is bound to give a bond for the faithful perform- 
 ance of the duties of his office, and in the next place, to 
 take the same oath that the marshal takes. It is re- 
 quired by the act of Congress (see Graydon's Digest of 
 of the Laws, p. 247), that before a deputy marshal acts, 
 he shall take the same oath with his principal, and must 
 give bond. Gaines was unwilling to do it himself, and 
 he was informed that he might do it by another. Now 
 no principle is more clear, than that a deputy can not 
 make a deputy, and this act being performed by Dun- 
 baugh was therefore illegal. But it is said that there 
 was no collusion, but, on the contrary, a variance between 
 Wilkinson and Hall. This was the strongest reason in 
 the world to make Hall dread to give Wilkinson offense ; 
 a man, who but a short time before came into a court of 
 justice and looked proudly around to the court, insulted 
 the judges, set at defiance the writ of habeas corpus, and 
 told them, that every man whom he suspected, he would 
 take up and transport in like manner as those, whom he 
 refused to release in obedience to the writ ; and denounced 
 two gentlemen of the bar as traitors to their country, 
 because he knew that they were the most able and de- 
 termined to oppose his military usurpation. Judge Hall 
 had, theref6re, great reason to dread his displeasure, and 
 a repetition of the same treatment. 
 
 Now let us see how this poor fellow got out of jail. 
 It was by a deputation by deputy Gaines to Sergeant 
 Dunbaugh. The counsel for the prosecution examined 
 the order in court, and they say that Mr. Gaines did not 
 sign it in his military, but in his civil character as deputy- 
 marshal, because he did nor sign himself " captain " at 
 the bottom. The order to Dunbaugh is not signed by 
 him as deputy-marshal ; on the contrary, it command- 
 ed him, " You are hereby requested and commanded to 
 take, &c.," not " you will oblige me by taking, &c." It 
 is addressed " to Sergeant Dunbaugh," and it commands 
 him, and being from Captain Gaines to him as sergeant, 
 it must be in his military character. The order author- 
 ized and commanded him to take Knox out of jail and 
 and carry him on board the vessel. If ever there were a 
 military order in the world, this is one. Let us examine 
 the civil and military character blended. As deputy-
 
 382 TRIAL OF AARON EURR. 
 
 marshal, General Wilkinson had no right to order Gaines 
 to do anything; he was as free from his authority as I 
 am. As a citizen of the world, he had no right to order 
 him, except he chose to exercise an illegal power. Dun- 
 baugh was as free, as a citizen, from the authority of 
 Gaines in his character of lieutenant, as any other citizen 
 of the United States ; and, as a -sergeant, he was as free 
 from his authority as deputy-marshal, as I am (and God 
 knows what I should have been if I had been then at 
 New Orleans) ; and yet Lieutenant Gaines told us, that 
 he was so much under the command and in the power 01 
 Wilkinson, that if he had ordered him to put Knox in 
 irons, he would have done it. What sort of civil author- 
 ity was it, by which a military officer was employed to 
 bring the witness to this court, and that officer bound to 
 put him in irons, if his general ordered it' Was it not 
 under that authority that he was brought round without 
 a shirt, except a borrowed one? These are the methods 
 by which testimony is to be obtained ! Instead of using 
 the legal means of subpoena and attachment to obtain 
 evidence, witnesses are thus illegally forced to come and 
 give testimony in a court of justice ! Has not this a 
 direct tendency to destroy the purity of trials? 
 
 But it is said, that this court has no right 'to take cog- 
 nizance of the offense, because it happened at New Or- 
 leans. If General Wilkinson, after having committed this 
 offense, had not come hfther, this court could punish him, 
 the first time it could find him within its jurisdiction, for 
 affecting a cause depending here. His interfering with 
 the pure principles of the administration of justice was a 
 contempt of the court. It is a principle of law, that every 
 interference with the administration of justice is a con- 
 tempt of the court, and punishable wherever its process 
 can reach. Why is it improper and punishable by at- 
 tachment to insult a judge sitting in court ? Because it 
 tends to intimidate him and prevent an impartial judg- 
 ment. Why are publications in newspapers concerning 
 any cause depending in a court prohibited by law ? 
 This has been lately done in this very place. Because 
 it tends to make impressions unfavorable to one of the 
 parties, and its immediate tendency is, to obstruct the 
 pure sources and channels of justice. Most of these
 
 MOTION FOR AN ATTACHMENT. 383 
 
 things had happened at New Orleans ; and the offense 
 was incipient there, but was not completed till they ar- 
 rived here. It was a continued act. Knox wished, but 
 was not permitted, to come on shore to get clothes, and 
 not to be brought into a court of justice like a dirty 
 beast. 
 
 But Sergeant Dunbaugh went on shore with him, con- 
 fessedly to prevent him from missing his way, but in 
 reality because they did not choose to trust him alone ; 
 so that he still was confined, for they would not trust him 
 by himself. The conduct of General Wilkinson in the 
 first movement was most artful. He asks him, " Why, 
 Mr. Knox, are you not afraid to appear before me?" 
 Why should he be afraid of him, unless he referred to his 
 military despotism ? for he had nothing to do with him ; 
 and as to his being with Mr. Burr, it was the civil magis- 
 trate that he should have been afraid of; he could not 
 be afraid of Wilkinson, for anything of this kind ; but he 
 might fear to be imprisoned and transported like others, 
 contrary to law and justice. 
 
 But the gentleman has said that there was no danger 
 in the union of the civil with the military character in 
 one person ; and asks us if the president of the United 
 States have not those powers blended in him? What 
 civil authority has the president ? It is much circum- 
 scribed. He must apply to a magistrate before he can 
 arrest any person suspected of any crime. He is not a 
 conservator of the peace, though he is commander-in- 
 chief of all our troops (which are not many). He has 
 nothing to do with the civil, that is the judicial author- 
 ity; yet this is the inference, that the civil and military 
 authority were united in the president. 
 
 We have been told by the gentlemen that " the court 
 had shown great indulgence towards us, lest it should 
 be censured, and not for the sake of doing justice." I 
 took it down from his mouth as he spoke. 
 
 Mr. Mac Rae denied positively that he had ever said 
 so. 
 
 Mr. Martin insisted that he had taken it down from his 
 mouth as he had spoken the words. 
 
 Mr. Mac Rae replied that he had taken it from his own 
 head.
 
 384 TRIAL OF AARON BURR. 
 
 Mr. Martin. I dare say the gentleman has forgotten 
 it ; his mind having been occupied by great things ; by 
 General Wilkinson. Sir, he said that great indulgence 
 had been granted to Mr. Burr, for which he compli- 
 mented the court. I wonder if he will recollect another 
 thing that he said, that we wished to imprison all the 
 people for the sake of Aaron Burr, while he was stalk- 
 ing through the streets. I can not help congratulating 
 the gentleman, that he may now walk at large, with- 
 out having his eyes offended by seeing Aaron Burr at 
 liberty. 
 
 But the gentleman said that unusual mildness had 
 been shown to Mr. Burr. Persons have been tried for 
 treason before in the United States. John Fries was 
 tried before that Jeffries, Samuel Chase. Was the treas- 
 ury of the United States thrown open and lavished 
 to employ other counsel in addition to the attorney for 
 the United States, to prosecute? No persons were then 
 employed to forestal the truth, by taking ex parte affi- 
 davits ; and Mr. Rawle, the attorney for the United 
 States, who prosecuted according to general usage, with- 
 out any aid, was a man whose mildness and benignity 
 resembled an angel of mercy; and the United States 
 sent for no other witnesses than those summoned in the 
 usual course. But this trial took place " in the days of 
 terror," under that old dotard, John Adams. Let us con- 
 trast it with the proceedings under the enlightened reign 
 of philosophy and philanthropy. Money has been 
 taken out of the treasury to employ two eminent law- 
 yers to aid in the prosecution ; compulsive affidavits have 
 been taken ; affidavit-men employed to take them, and 
 witnesses brought by force, without relying on the pro- 
 cess of the court as sufficient. 
 
 Mr. Martin concluded by expressing his firm persuasion 
 that the whole transaction was military, and contrived 
 by General Wilkinson ; that it was clearly a contempt 
 of the court, and that he hoped he would be punished 
 for it by an attachment. 
 
 FRIDAY, June 26th, 1807. , 
 
 The court met about nine o'clock, and about ten
 
 MOTION TO REMOVE BURR FROM JAIL. 385 
 
 o'clock the grand jury entered, and Mr. Randolph, their 
 foreman, presented ten indictments, found true bills ; that 
 is, one indictment for treason, and another for a misde- 
 meanor against each of the following individuals, viz. 
 Jonathan Dayton, John Smith, Comfort Tyler, Israel 
 Smith, and Davis Floyd. 
 
 The Chief Justice then made a short address to the 
 grand jury, expressed in elegant and appropriate terms, 
 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 ; and concluded, by discharging them 
 from all further attendance. 
 
 The court then adjourned till twelve o'clock. As soon 
 as it met again, 
 
 Mr. Botts requested the court to remove Mr. Burr 
 from the public jail to some comfortable and conve- 
 nient place of confinement. He depicted in very strong 
 terms the miserable state of the prison, where he was 
 then confined. The grounds of this motion are to be 
 found in the following affidavit made by some of Mr. 
 Burr's counsel, and laid before the court : 
 
 We, who are counsel in the defense of Mr. Burr, at 
 the suit of the United States, beg leave to represent to 
 the court, that in pursuance of our duty to him, we 
 have visited him in his confinement in the city jail; 
 that we could not avoid remarking the danger which will 
 most probably result to his health, from the situation, 
 inconveniences, and circumstances attending the place 
 of his confinement ; but we can not forbear to declare 
 our conviction, that we ourselves can not freely and 
 fully perform what we have undertaken for his defense, 
 if he remain in the jail aforesaid, deprived, as he is, of a 
 room to himself; it being scarcely possible for us to 
 consult with him upon the various necessary occasions 
 which must occur, from all which we believe, that he will 
 be deprived of that assistance from counsel, which is 
 given to him by the constitution of the United States, 
 unless he be removed. 
 
 . " EDMUND RANDOLPH. 
 " JOHN WICKHAM. 
 
 " BENJAMIN BOTTS. 
 i. 25
 
 386 TRIAL OF AARON BURR. 
 
 " Sworn to in open court, by Edmund Randolph, John 
 
 Wickhatn, and Benjamin Botts, Esquires. June 25th, 
 
 1807. 
 
 "WILLIAM MARSHALL, Clerk." 
 
 The counsel for the prosecution were perfectly silent 
 on the motion. 
 
 After a long and desultory argument by Mr. Burr's 
 counsel the court determined that the prisoner should be 
 removed to his former lodgings near the capitol, pro- 
 vided they could be made sufficiently strong for his safe 
 keeping, being of opinion, that the act of congress au- 
 thorized it, on the foregoing affidavit, to make the order 
 of removal. 
 
 Mr. Latrobe, surveyor of the public buildings of the 
 United States, was requested to inspect them ; and upon 
 his report the court passed the following order : 
 
 Whereupon, it is ordered, that the marshal of this dis- 
 trict, 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 Mr. Aaron Burr, by securing the shut- 
 ters to the windows of the said room by bars, and the 
 door by a: strong bar or padlock. And that he employ a 
 guard of seven men to be placed on the floor of the ad- 
 joining unfinished house, and on the same story with the 
 before described front room, and also, at the door open- 
 ing into the said front room ; and upon the marshal's re- 
 porting it 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 jail, there to be by him safely kept. 
 
 Mr. Hay. My only wish is, that this prosecution 
 should be regularly conducted. Is it not the usual prac- 
 tice to read the indictment first and then move for the 
 venire? 
 
 Mr. Burr. I have been furnished with a copy of the 
 indictment ; I have perused it ; and I am ready to plead 
 not guilty to it. 
 
 Mr. Wirt. The usual form requires the actual arraign- 
 ment of the prisoner; however the court may dispense 
 with it, if it think proper.
 
 BURR PLEADS "NOT GUILTY," 387 
 
 Mr. Hay was indifferent about the form, if the law could 
 be substantially executed. He supposed that a simple 
 acknowldgement of the prisoner was sufficient without 
 the customary form of holding up his hand. 
 
 Chief Justice. It is enough, if he appear to the in- 
 dictment, and plead not guilty. 
 
 The clerk then read the indictment against Aaron Burr, 
 for treason against the United States : which specifies 
 the place of the overt act to be at Blannerhasset's Island, 
 and the time the loth day of December, 1806. 
 
 When he had concluded, Mr. Burr addressed the court : 
 " I acknowledge myself to be the person named in the 
 indictment ; I plead not guilty ; and put myself upon my 
 country for trial." 
 
 Mr. Hay then addressed the court on the venire that 
 was to try the issue between the prisoner and the Uni- 
 ted States. He said that he thought there was an apparent 
 incompatibility on this point, between the twenty-ninth 
 section of the act of congress called the judicial act, and 
 the eighth amendment to the constitution. It was not 
 certain that this act was in force. It was passed on the 
 24th of September, 1789, and it provides that " in cases 
 punishable with death, the trial shall be had in the county 
 where the offense was committed, or where that can not 
 be done without great inconvenience, twelve jurors at 
 least shall be summoned from thence." Subsequent to 
 this, a constitutional provision was made, requiring that 
 the trial shall be held before " an impartial jury of the 
 state and district, wherein the crime shall have been com- 
 mitted." If, then, this law be in force, there must be 
 twelve petit jurymen summoned from Wood county, 
 which would make it impossible to have the trial at any 
 early day. Here, then, was the difficulty. The act was 
 passed in 1789; the amendments to the constitution 
 were not ratified before the I5th December, 1791. Does, 
 then, the constitution repeal this law? Had this eighth 
 amendment formed an original part of the constitution, 
 no more would have been requisite than an impartial jury 
 from the state and district where the crime was com- 
 mited. Had congress passed this law, after the constitu- 
 tion was thus amended, would it not have been a viola- 
 tion of it ? Had it, then, any force at this time?
 
 3 88 TRIAL OF AARON BURR. 
 
 Mr. Mac Rae quoted the 2d vol. of the act of congress 
 page 226, section 3, to show that the first law was con- 
 sidered to be in force, notwithstanding this amendment 
 to the constitution. 
 
 The Chief Justice said, that he had no difficulty on the 
 subject. He saw no incompatibility between the-law and 
 the constitution. He had no doubt that the law was 
 still in force. 
 
 Mr. Burr had not considered the question maturely ; 
 but at present saw no inconsistency between them : how- 
 ever, as this law was most probably intended for the ben- 
 fit of the accused, he consented to waive the right. 
 
 Mr. Wirt. But there is another consideration, sir: 
 Can consent, take away the error? In England, in the 
 celebrated case of Alexander Kinloch, he consented to 
 draw one of the jurymen, and afterwards pleaded this 
 error in arrest of judgment. After along and elaborate 
 argument, the court rejected his plea, though there was 
 a division among them. 
 
 Mr. Martin. In that* case (or what is the same, Wed- 
 diburn's case) there was but one dissentient judge. 
 
 Mr. Hay. In the case of Hardy or Tooke a question 
 was made, whether the jury must be kept together dur- 
 ing that long trial? Though the prisoner at the bar con- 
 sented to waive that right, the court nevertheless instruct- 
 ed the sheriff to keep them together. 
 
 Mr. Botts protested against the delay and inconveni- 
 ences which would ensue, from summoning the venire 
 from Wood county. 
 
 The Chief Justice believed that the provision was not 
 absolutely obligatory, if both parties would waive the 
 right ; but it was as much so, if the United States insisted 
 upon the right, as if the prisoner himself had done so. 
 If the United States insisted upon its execution, the law 
 must be executed, unless there were sufficient evidence 
 to satisfy the court, that such a measure would violate 
 the amendment to the constitution, which requires a 
 trial to be held by an impartial jury of the state and dis- 
 trict ; unless both sides therefore consented, it was his 
 opinion that the court was bound by this law. 
 
 Mr. Hay said, that he felt no disposition to delay the 
 trial; but he could not think of .pledging himself to such
 
 SUMMONING A VENIRE. 389 
 
 a measure without due deliberation. He would consult 
 with the gentlemen associated with him on this point, 
 and would inform the court of the result. 
 
 The counsel for the prosecution then retired from the 
 bar, and after a few minutes' consultation returned. Mr. 
 Hay informed the court, that they could not assume the 
 responsibility of consenting to such a proposition ; the 
 law seemed to be imperative in its language, "twelve petit 
 jurors at least shall be summoned." He must therefore 
 request the court to direct a venire of twelve men at least, 
 to be summoned from Wood county. 
 
 The Chief Justice inquired what number should be 
 summoned ? Different numbers were named, and there 
 appeared to have been a great difference in the practice. 
 The common practice required forty-eight ; and cases 
 were cited, where not less than sixty, or seventy-two ju- 
 rors had been summoned. 
 
 The court finally decided thafcthe entry should be made 
 for a venire of forty-eight jurors; twelve of whom, at 
 least, were to be summoned from Wood county. 
 
 A long conversation ensued upon the time when this 
 process was to be made returnable ; or in other words, 
 when the trial-in-chief was to commence. Some con- 
 tended that twenty days would be sufficient to summon 
 the venire from Wood county ; others, that thirty-five 
 would be necessary. The general opinion seemed to be 
 in favor of an adjournment till the first Monday in August. 
 
 The Chief Justice said that he would have preferred 
 the shortest possible day in consideration of the expense 
 and inconvenience which would result from the delay ; 
 unless, indeed, more important circumstances should 
 have recommended a longer period ; such as the necessity 
 and advantage of obtaining witnesses from different parts 
 of the country. No time was determined upon. The 
 decision was postponed until to-morrow. The orders 
 were to be made out for summoning a venire, and the 
 time of the return to be left blank and filled up to- 
 morrow. 
 
 Mr. Hay informed the court that the clerk was doubt- 
 ful whether the parties last indicted, should be brought 
 before the court by a capias or a summons. He should 
 ^ow move for a capias.
 
 390 TRIAL OF AARON JB URR. 
 
 The Chief Justice replied there could be no diffi- 
 culty on the subject, for that a capias must certainly 
 issue. 
 
 SATURDAY, June 2/th, 1807. 
 
 The Chief Justice delivered the following opinion on 
 the motion, for an attachment against General Wilkin- 
 son : 
 
 The motion now under consideration was heard at 
 this time, because it was alleged to be founded on a fact 
 which might affect the justice of the case in which the 
 court is about to be engaged, and because, while the bills 
 were depending before the grand jury, the court might, 
 without impeding the progress of the business, examine 
 into the complaint which has been made.. 
 
 The motion is to attach General Wilkinson for a con- 
 tempt of this court, by obstructing the fair course of jus- 
 tice, with regard to a prosecution depending before it. 
 In support of this charge, has been offered the testimony 
 of Mr. Knox, who states a conversation between General 
 Wilkinson and himself, previous to his being served with 
 a subpoena, the object of which was to extract from him 
 whatever information he might possess respecting the ex- 
 pedition which was the subject of inquiry in this court ; 
 and who states also, that he was afterwards summoned 
 before Judge Hall, who examined him upon inter- 
 rogatories, and committed him to jail, whence he was 
 taken by order from the deputy marshal, who was a mil- 
 itary, as well as a civil officer, and put on board the Re- 
 venge, in which General Wilkinson sailed, for the pur- 
 pose of being brought from New Orleans to Richmond. 
 
 That unfair practices towards a witness who was to 
 give testimony in this court, or oppression under color 
 of its process although those practices and that oppres- 
 sion were acted in another district would be punishable 
 in the mode now suggested, provided the person who 
 had acted therein came within the jurisdiction of the 
 court, is a position which the court is not disposed to 
 controvert ; but it is also believed that this mode of pun- 
 ishment ought not to be adopted, unless the deviation 
 from law could be clearly attached to the person against
 
 MOTION FOR ATTACHMENT DENIED. 391 
 
 whom the motion was made, and unless the deviation 
 were intentional, or unless the course of judicial pro- 
 ceeding were or might be so affected by it, as to make a 
 punishment in this mode obviously conductive to a fair 
 and correct administration of justice. 
 
 The conversation which took place between General 
 Wilkinson and the witness, on the arrival of the latter 
 in New Orleans, was manifestly held with the intention 
 of drawing from him any information which he might 
 possess, relative to the expedition which was then the 
 subject of inquiry. In this intention, there was nothing 
 unlawful. Government and those who represent it, may 
 justifiably and laudably use means to obtain voluntary 
 communications, provided those means be not such as 
 might tempt the person making them, to give an im- 
 proper coloring to his repesentations, which might after- 
 wards adhere to them, when repeated in court. The ad- 
 dress stated to have been employed, the condescension 
 and regard with which the witness was treated, are not 
 said by himself to have been accompanied with any in- 
 dications of a desire to draw from him more than the 
 'truth. The offer of money, if with a view to corrupt, 
 could not be too severely reprehended. It is certainly a 
 dangerous species of communication between those who 
 are searching for testimony, and the person from whom 
 it is expected. But in this case, the court can not con- 
 template the offer as being made with immoral views. 
 The witness had a right to demand from those he was 
 expected to accuse, a small sum of money sufficient to 
 subsist him on his return to his home. He was asked 
 whether, on receiving this sum, his objections to giving 
 testimony would be removed. This was certainly a deli- 
 cate question, but it might be asked without improper 
 motives, and it was pressed no further. This is not 
 shown to be an attempt to contaminate the source of 
 justice, and a consequent contempt of the court, in 
 which it is administered. 
 
 The imprisonment of Mr. Knox, and the order for 
 conveying him from New Orleans to Richmond were the 
 acts of Judge Hall. Whether his proceedings were legal 
 or illegal, they are not shown to have been influenced 
 by General Wilkinson, and this court can not presume
 
 392 TRIAL OF AARON BURR. 
 
 such to have been the fact : General Wilkinson therefore 
 is not responsible for them. They were founded, it is 
 true, on an affidavit made by him ; but there was no 
 impropriety in making this affidavit, and it remained 
 with the judge to decide, what the law would authorize 
 in the case. 
 
 All the subsequent proceedings were directed by the 
 civil authority. The agents who executed the orders of 
 the judge were indeed military men, who most probably 
 would not have disobeyed the commander-in-chief ; but 
 that officer is not responsible, in this way, for having 
 failed to interpose his authority, in order to prevent the 
 execution of the orders of the judge, even if those or- 
 ders ought not to have been given. 
 
 Upon a full view of the subject, the case appears to 
 have been this: General Wilkinson was desirous that 
 the testimony of the witness should be obtained ; and 
 aware of the accusations which had before been brought 
 against him, for the use he had made of the military 
 power, he was desirous of obtaining the testimony by 
 lawful means, and therefore referred the subject to a 
 judge of the territory, under whose orders all subseqnent 
 proceedings were taken. Whether the judge did or did 
 not transcend the limits prescribed by law, those minis- 
 terial officers who obeyed his orders, can not be sup- 
 posed to have acted with a knowledge that he had mis- 
 taken his power. Should it be admitted that this would 
 be no defense for them in an action to obtain compensa- 
 tion for the injury, yet it furnishes sufficient evidence 
 that no contempt was intended to this court by General 
 Wilkinson, that he has not been guilty of any intentional 
 abuse of its process, or of any oppression in the manner 
 of executing it. 
 
 It is said that Captain Gaines, the gentleman whom 
 the marshal appointed as his deputy for this particular 
 purpose, had not taken the oath of office and was there- 
 fore not legally qualified to act in that character. How 
 ever correct this observation may be in itself, it does not 
 appear to the court to justify an attachment against 
 General Wilkinson. The person who sees in the posses- 
 sion of another, a commission as deputy-marshal, and 
 sees th^t others are acting under that commission, ought
 
 ORDER ON POSTPONEMENT. 393 
 
 not to be subjected to a process of contempt for having 
 made no inquiries respecting the oath which the law re- 
 quires to be taken. 
 
 The attachment will not be awarded, because General 
 Wilkinson can not be considered as having controlled or 
 influenced the conduct of the civil magistrate, and be- 
 cause in this transaction his intention appears to have 
 been not to violate the laws. In such a case, where an 
 attachment does not seem to be absolutely required by 
 the justice due to the particular individual against whom 
 the prosecution is depending, the court is more inclined 
 to leave the parties to the ordinary course of law, than 
 to employ the extraordinary powers which are given for 
 the purpose of preserving the administration of justice 
 in that purity which ought to be so universally desired. 
 
 The court made the following order on the postpone- 
 ment of the trial : 
 
 Aaron Burr, late of the city of New York, and state 
 of New York, attorney-at-law, who stands indicted for 
 treason, was this day brought to the bar in custody of 
 the marshal of this district, and thereof arraigned, and 
 pleaded, Not guilty to the indictment, and for his trial 
 put himself upon God and the country ; whereupon he is 
 remanded to jail. And as the trial of the said Aaron 
 Burr can not be had in the county of Wood, where the 
 offense is alleged to have been committed, without 
 great inconvenience, it is ordered that a venire facias 
 issue, to the marshal of this district to be directed, com- 
 manding him to summon forty-eight fit persons qualified 
 as the law directs, twelve of whom, from the said county 
 of Wood, to appear here on the third day of August next, 
 as a venire for the trial of the said Burr. 
 
 MONDAY, 29th June. 
 
 Mr. Hay laid the following order of the executive 
 council before the court : 
 
 IN COUNCIL, June 29th, 1807. 
 
 The board being informed that an affidavit has been 
 ed in th.2 circuit court of the United States, for the
 
 394 TRIAL OF AARON B URR. 
 
 Virginia district, which states that the jail for the county 
 of Henrico and city of Richmond is inconvenient and un- 
 healthy, and so crowded with state offenders and debtors 
 that there are no private apartments therein, for the 
 reception of persons charged with offenses against the 
 laws of the United States: it is therefore advised that 
 the governor be requested to tender the said court 
 (through the federal attorney of the district of Virginia) 
 apartments in the third story of the public jail and peni- 
 tentiary house for the reception of such persons as shall 
 be directed under the authority of the United States to 
 be confined therein. 
 
 Extract from the Minutes. 
 DANIEL L. HYLTON, Clerk of the Council. 
 
 The following was the order of the court on this sub- 
 ject : 
 
 " Which tender the court doth accept for the purpose 
 above mentioned." 
 
 The final decision of the motion to commit Aaron Burr 
 to the penitentiary was postponed till to-morrow. 
 
 TUESDAY, Jui ^o. 
 
 After the court met, the me ?n to commit Aaron 
 Burr to the penitentiary was rene /ed. 
 
 It was objected to by his counsel on the ground (and 
 an affidavit was made by them to the same effect) that in 
 so important a case, it was essentially necessary for the 
 most uninterrupted intercourse to subsist between the 
 prisoner and his counsel ; but that the distance of the 
 penitentiary, combined with their own professional avo- 
 cations, would necessarily narrow and interrupt this inter- 
 course. It was also said, that by particular regulations 
 of the penitentiary, the custody of the prisoner would be 
 transferred from the marshal to the superintendent ; and 
 that the communications of the prisoner with his cou" 
 sel would be limited to the very same short period whic 
 was allowed to the other iitants ; that is, from eleven 
 to one o'clock. 
 
 The attorney for the Ur 'ed States repelled these ob- 
 jections.
 
 BURR REMOVED TO PENITENTIARY. 395 
 
 The Chief Justice said, when there was a public jail not 
 unreasonably distant or unfit for the reception of the 
 prisoner, and when the court was called upon on the part 
 of the United States to commit a prisoner to its keeping, 
 that he conceived himself bound to comply with the re- 
 quisition ; that when he had given the order for his 
 removal from the jail to his own lodgings, it was under 
 an expectation that the trial would be prosecuted imme- 
 diately, and that the intercourse between the prisoner 
 and his counsel would be necessarily incessant ; but as 
 a postponement had taken place, such an intercourse 
 would not be absolutely necessary ; under such circum- 
 stances, therefore, he should direct the removal of the 
 prisoner to the penitentiary, if he were still to continue 
 in the possession of the marshal, and if his counsel were 
 to have a free and uninterrupted access to him. 
 
 Some difficulty having thus occurred on these points, 
 the executive counsel was immediately convened. In a 
 short time the following letter was submitted to the 
 court. 
 
 COUNCIL CHAMBER, June 3oth, 1807. 
 SIR, 
 
 In pursuance of aft dvice of the counsel of state, I beg 
 leave through you, to ^iform the circuit court of the Uni- 
 ted States now sitting [hat any persons who may be con- 
 fined in the jail and penitentiary house, on the part of 
 the United States, will be considered as in the custody, and 
 under the sole control of the marshal of the district; that 
 he will have authoirty to admit any person or persons to 
 visit the confined that he may think proper ; and that he 
 will be authorized to select for the purposes aforesaid, any 
 apartment in the penitentiary now unoccupied, that he 
 may deem the most conducive to safety, health, and con- 
 venience. 
 
 I am, with great respect, 
 
 Sir, your obedient servant, 
 " George Hay, Esquire. WM. H. CABELL. 
 
 The court then came to" 'le following order: 
 In consequence of the 01 made by the executive of 
 apartments in the third st f y of the penitentiary and 
 state prison, for persons who may be confined therein
 
 396 TRIAL OF AARON BURR. 
 
 under the authority of the United States, and of the 
 foregoing letter from the governor of this common- 
 wealth, it is ordered, on the motion of the attorney for 
 the United States, that so soon as the apartments in the 
 third story of the public jail and penitentiary shall be 
 fit for the reception and safe keeping of Aaron Burr, that 
 he be removed thereto, and safely kept therein by the 
 marshal, until the second day of August next, when he 
 shall be brought back to the prison where he is now 
 placed, there to be guarded in like manner as at present, 
 until the further order of the court. 
 
 CITY OF RICHMOND, 
 MONDAY, AUGUST 3, 1807. 
 
 On this day the circuit court of the United States for 
 the fifth circuit and district of Virginia was held accor- 
 ding to adjournment. 
 
 Present, the Chief Justice of the United States: 
 
 George Hay, William Wirt, and Alexander Mac Rae, 
 Esquires, counsel for the prosecution. 
 
 The prisoner was brought into court from his apart- 
 ment near the Swan Tavern, to which he had been 
 removed on Saturday. 
 
 Edmund Randolph, John Wickham, Benjamin Botts, 
 John Baker, and Luther Martin, Esquires, appeared as 
 his counsel. 
 
 The court assembled at twelve o'clock. An immense 
 concourse of citizens attended to witness the proceedings 
 of this important trial. 
 
 Mr. Hay observed that he could take no steps in this 
 business until he had ascertained whether the witnesses 
 summmoned on the part of the United States were 
 present ; he, therefore, requested that their names 
 might be called over ; they were more than one hundred 
 in number. Their names were accordingly called in the 
 following order : 
 
 * Thomas Truxtun, * Stephen Decatur, * Benjamin 
 Stoddert, * William Eaton, * William Duane, * Erick
 
 NAMES OF WITNESSES. 397 
 
 Bollman, * Peter Taylor, * Jacob Allbright, * Charles 
 Willie, * John Graham, * Samuel Swartvvout, *Julien 
 Dupiestre, * P. H. M. Prevost, Israel Miller, * Samuel 
 Skounten, * George Morgan, * John Morgan, * Thomas 
 Morgan, * Nicholas Perkins, * Robert Spence, * George 
 Harris, * Cyrus Jones, * Thomas Peterkin, Elias Glover, 
 
 * Simeon Poole,. * Dudley Woodbridge, * David C. 
 Wallace, * Edmund B.Dana, James Reid, *John G. 
 Henderson, * Alexander Henderson, *Hugh Phelps, 
 Jacob Dunbaugh, * Chandler Lindsley, * John Mulhollon, 
 
 * James Knox, * William Love, David Fisk, * Thomas 
 Hartley, * Stephen S. Welch, James Kinney, * Samuel 
 Moxley, * Edmund P. Gaines, * Ambrose D. Smith, 
 George Peters, Abner L. Duncan, Lewis Kerr, John A. 
 Fort, * Benjamin H. Latrobe, Cowles Meade, Thomas 
 Fitzpatrick, Thomas Butler, Robert A. New, Thomas T. 
 Davis, Silas Dinsmore, Owen Aston, William Davis, E. 
 Kibby, Theodore Brightwell, John Callier, Dr. Bennett, 
 Earl Sproat, Robert Wallace, Walter Putnam, John 
 Dana, Alexander Ralston, Mrs. Vanhorne, Henry 
 Jacobs, Ransome Peale, Hamlin Hicks, Phelow Woos- 
 ter, John Blair, James McDowell, Samuel N. Luckett, 
 Stockley D. Hayes, Samuel W. Butler, Walter C. 
 Davidson, John Barry, Thomas H. Gushing, Nathaniel 
 Evans, Jacob Jackson, William Piatt, William White, 
 Jerard Brooke, Morgan Nevill, Thomas Callis, Mr. Pet- 
 erson, Lieutenant Swearingen, Mr. Weaver, Colonel 
 Osmund, Major M. Porter, J. B. Walback, Mr. Van- 
 horne, Dr. Carmichael, Dr. Alston, Colonel P. Read, 
 John Wilkens, Stephen Woolberton, David McKey, 
 Hugh Allen, William Davis. 
 
 [Those were present whose names are printed in 
 italics ; the rest were absent. Such as have an * pre- 
 fixed to their names were recognized at the former 
 meeting of the court. The rest were not. Of course, 
 all those whose names are placed after that of Benjamin 
 H. Latrobe, have been subpcenaed since the adjournment 
 of the court.] 
 
 Mr. Hay begged leave to mention that he had no- 
 thing more to submit to the court this day. There 
 were many of the witnesses, of whose places of residence 
 he was ignorant ; several had not appeared ; many had
 
 398 TRIAL OF AARON BURR. 
 
 been merely pointed out to him by the attorney-general 
 of the United States. He observed, that, therefore, he 
 had not yet been able to furnish Mr. Burr with a list of 
 the witnesses, and a statement of the places of their 
 residence, as the law requires ; that, as many of those 
 who had been summoned and recognized had failed to 
 appear, he was not ready to proceed with the trial im- 
 mediately. He also informed the court that a list of the 
 venire had been delivered on Saturday to Mr. Burr, but 
 had since been discovered to be inaccurate. It became, 
 therefore, necessary (an act of congress having directed 
 this to be done at least three days before the trial) to 
 deliver a correct list on this day ; and, of course, the trial 
 would be postponed until the requisite time had elapsed. 
 
 The Chief Justice inquired then to what day it would 
 be proper to adjourn the court. 
 
 Mr. Hay could not positively state by what day he 
 should be able to prepare his lists. 
 
 Mr. Burr observed, that it was not very probable that 
 he should avail himself of any privileges which he might 
 derive from any delay which had occurred in not furnish- 
 ing him wi-th the list of the jurors ; and therefore the 
 court might adjourn itself to any day which was conveni- 
 ent to the attorney for the United States. Neither was 
 it probable, that he should avail himself of any objec- 
 tions which might be made to any incorrectness in the 
 names of the jurors, or the places of residence, as stated 
 in the list ; unless certain circumstances might occur after 
 the production of the list, on which he ought to found 
 objections to it. 
 
 A short conversation then ensued upon the day of ad- 
 journment, when Mr. Burr observed, that as it would 
 seem, in some measure, to depend upon his own consent, 
 he should not hesitate to consent to an adjournment, 
 provided it did not extend further than Wednesday. Mr. 
 Hay had no objection to that day. 
 
 Mr. Hay observed, that it might be proper to have the 
 names of the jury called over, though not to impanel 
 them at present. It would be premature now to impanel 
 them, as the opposite counsel had not yet possessed a 
 sufficient time to examine the list, and as the witnesses 
 for the United States were not present.
 
 LIST OF JURORS. 399 
 
 The names of the jurors were accordingly called. 
 
 The names of the jurors summoned from Wood coun- 
 ty to appear before the judges of the United States, 
 for the fifth circuit in the Virginia district, on the 3d day 
 of August, 1807, for the trial of Aaron Burr, are 
 
 Hezekiah Bucky, Jacob Beeson, James G. Laidly, Wil- 
 liam Prince. James Henderson, Nimrod Saunders, James 
 Compton, Thomas Creel, Hamilton Morrison, Anthony 
 Buckner, Yates S. Conwell, David Creel. 
 
 Wood county, district of Virginia, 
 
 JOSEPH SCOTT, Marshal, V. D. 
 
 List of the petit jurors for May circuit term, 1807, con- 
 tinued. 
 
 Names of the jurors summoned from the body of the 
 district of Virginia for the trial of Aaron Burr: 
 
 John Horace Upshaw of Essex county, William Pope 
 of Powhattan, Peyton Randolph of Richmond city, John 
 Bowe of Hanover, John Roberts of Culpeper, Joshua 
 Chaffin of Amelia, Jervis Storrs of Henrico, Miles Sel- 
 den of ditto, Lewis Truehart of Hanover, William Yan- 
 cey of Pittsylvania, Thomas Prosser of Henrico, John 
 Staples of Albemarle, Edward C. Standard of Albemarle, 
 Richard B. Goode of Chesterfield, Nathaniel Selden of 
 Henrico, *Esme Smock of ditto, William Wardlow of 
 Richmond city, Richard E. Parker of Westmoreland, 
 John W. Ellis of Hanover, Thomas Starke of ditto, Wil- 
 liam B. Chamberlain of Henrico, David Lambert of Rich- 
 mond city, Randolph Harrison of Cumberland, William 
 Hoomes of Caroline, Overton Anderson of Richmond 
 city, Hugh Mercer of Spottsylvania, David Bullock of 
 Richmond city, Jerman Baker of Cumberland, *Edward 
 Carrington of Richmond city, Robert Haskins of Ches- 
 terfield, William R. Fleming of Goochland, George W. 
 Smith of Richmond city. Armistead T. Mason of Lon- 
 don, Dabney Minor of Albemarle, William McDaniel of 
 Stafford, William White of Hanover. 
 
 JOSEPH SCOTT, Marshal, V. D. 
 
 [The two whose names are marked with an * were ab- 
 sent : all the rest were present.] 
 
 Mr. Hay then requested the marshal to deliver, as 
 soon as possible, a correct copy of this list to the oppo- 
 site counsel.
 
 400 TRIAL OF AARON BURR. 
 
 Mr. Peyton Randolph inquired whether this were a 
 proper opportunity for any man on that panel to state 
 his objections to the service. 
 
 The Chief Justice answered that it would be better to 
 waive any objections, until the jury were about to be im- 
 paneled. 
 
 Mr. Hay wished such of the witnesses as had not ap- 
 peared before, to be recognized as the others had been. 
 And accordingly Messrs. Duncan, Nevill, M'Dowell, and 
 Peters, were recognized by the clerk. 
 
 The deputy-marshal was then about to adjourn the 
 court, when Mr. Burr recalled to the recollection of the 
 court, the motion which he had made, on a former occa- 
 sion, for a subpoena duces tecum addressed to the presi- 
 dent of the United States. That motion had been part- 
 ly complied with. He wished to know of the court, 
 whether it were not a matter of right for him to obtain a 
 subpoena duces tecum. If it were not, he should then lay 
 a specific motion before the court. 
 
 The Chief Justice did not believe it to be the practice 
 in Virginia to obtain such a subpoena upon a mere appli- 
 cation to the clerk. The motion must be brought before 
 the court itself. 
 
 Mr. Hay said that he would say nothing on this subject, 
 until he understood the object of the application ; that 
 if it were to obtain the letter which was not formerly fur- 
 nished, he would inform the opposite counsel that he 
 had it now among his papers, and was ready to produce 
 it. 
 
 Mr. Burr. That is one object of the application. An- 
 other is to obtain a certain communication from General 
 Eaton to the President of the United States, which is 
 mentioned in his deposition. 
 
 Mr. Hay said that he was not certain, whether he had 
 that communication, but believed that it was among his 
 papers. If it were there, he would certainly produce 
 it. 
 
 Mr. Burr. But if, after a search, the gentleman find 
 that he has not that paper, will he consent out of court, 
 to issue a'subpcena to the President of the United States, 
 under the qualification I have mentioned? I wish not 
 at the present exigency, to derange the affairs of the gov-
 
 SUBPCENA DUCES TECUM. 401 
 
 ernment, or to demand the presence of the executive 
 officers at this place. All that I want are certain 
 papers. 
 
 Mr. Hay said that he could not consent to it ; he 
 would rather that a regular application should be made 
 for it to the court. 
 
 Mr. Burr. Then, sir, I shall move for a subpoena duces 
 tecum, to the President of the United States, directing 
 him to attend with certain papers. This subpoena will 
 issue as in the former instance. I shall furnish the clerk 
 with the necessary specification of the paper which I 
 require. 
 
 WEDNESDAY, August 5th, 1807. 
 
 Present, John Marshall, chief justice of the United 
 States. 
 
 Mr. Hay requested that the names of the witnesses 
 might be called over, who had not appeared on Monday, 
 and of whose arrival he was not yet informed. 
 
 The following witnesses answered to their names : 
 Charles Willie, John Graham, Samuel Swartwout, Julien 
 Dupiestre, P. H. M. Prevost, Israel Miller, William Eaton, 
 George Morgan, Cyrus Jones, Simeon Poole, Dudley 
 Woodbridge, John G. Henderson, Samuel Moxley, Am- 
 brose D. Smith, John A. Fort, and Hugh Allen. 
 
 The names of the witnesses being called over, Mr. Hay 
 observed that the court would perceive that the number 
 of the witnesses attending was greater than it had been 
 on Monday; that he presumed the whole of them would 
 be here in a few days ; that he had no doubt they would 
 go into the trial during the present term ; but that he 
 could not now furnish the accused with such a list of the 
 witnesses as was required by law ; for though he knew 
 their surnames, yet he was ignorant of the Christian 
 names of many, and their places of residence. He 
 was not certain to what day the court might proper- 
 ly adjourn. 
 
 Chief Justice. It will make no sort of difference to 
 the court, whether it adjourn from day to day, or to a 
 certain day. 
 
 After a short conversation between the counsel on both 
 26
 
 402 TRIAL OF AARON BURR. 
 
 sides, it was agreed that a list should be furnished of the 
 witnesses, and of their places of abode, so far as they had 
 been ascertained, and that a postponement should take 
 place until Friday. 
 
 Mr. Hay proposed an arrangement, as to the mode of 
 conducting the trial, the object of which was to save time. 
 He said that the course pursued in Great Britain on such 
 occasions, is for the counsel for the prosecution to open 
 his case and examine all his witnesses, before anything 
 is said on the other side: for the prisoner's counsel, after- 
 wards, to state the case on his part : to proceed to ex- 
 amine his witnesses, and to make such observations upon 
 the whole of the testimony as he should think proper ; 
 and for the counsel for the prosetution to terminate the 
 arguments by a reply. This, he said, was a convenient 
 and expeditious method. But, in Virginia, the practice 
 is as follows: the attorney for the United States, or for 
 the commonwealth, states the case on the part of the 
 prosecution, and the counsel for the accused, also makes 
 a statement on his part, after which the evidence is 
 gone through on both sides, beginning with the witnesses 
 against the prisoner. This being done, the counsel for 
 the prosecution commences the argument, is answered 
 by the counsel for the prisoner, and then concludes the 
 debate. Mr. Hay observed, that this mode was much 
 more tedious than that which prevails in Great Britain ; 
 and therefore ought particularly to be avoided in con- 
 ducting the trial of Aaron Burr, in which the number of 
 counsel employed, and of witnesses to be examined, is so 
 great, especially as other trials equally tedious are about 
 to take place Herman Blannerhasset being now in cus- 
 tody, and Jonathan Dayton known to be in this neigh- 
 borhood. 
 
 Mr. Wickham wished time to consider the subject, not 
 being prepared to determine whether the counsel for Mr. 
 Burr would accede to the proposal; as this was a new 
 mode of proceeding, to which they were not accustomed, 
 they wished to consult their client, who, on this day, 
 was not in court. 
 
 Mr. Hay said he did not think this a matter of con- 
 sent ; the court ought to fix the practice. 
 
 The Chief Justice observed that it would be better
 
 ADJOURNMENT. 403 
 
 to bring on this question on Friday : since gentlemen, 
 in the meantime, might settle it among themselves; say- 
 ing, moreover, that he should feel a difficulty in depart- 
 ing from the settled mode of practice in this country, 
 though he thought the English mode better than ours. 
 The best moL,e appeared to him to be this : that the case 
 should be opened fully by one of the gentlemen on the 
 part of the United States; then opened fully by one of 
 the counsel on the other side; that the evidence should 
 next be gone through, and the whole commented upon 
 by another of the gentlemen employed by the United 
 States; who should be answered by the rest of the at- 
 torneys for Mr. Burr; and one only of the coun- 
 sel for the United States should conclude the argu- 
 ment. 
 
 This mode was not approved of by Mr. Hay, as there 
 were to be several trials ; he feared that it would impose 
 too much labor on the counsel for the prosecution. 
 
 Some further conversation passed, but no arrangement 
 was determined on. 
 
 FRIDAY, August 7, 1807. 
 
 Present, John Marshall, chief justice of the United 
 States; and Cyrus Griffin, judge of the district of Vir- 
 ginia, 
 
 The witnesses were again called over, and several who 
 had not been present before, appeared, and were recog- 
 nized to attend until discharged by the court. 
 
 The counsel for the United States, however, not being 
 as well prepared to go into the trial, as they expected 
 to be (many of their witnesses being still absent), the 
 trial was further postponed and the court adjourned un- 
 til Monday next, at twelve o'clock. 
 
 In the course of this day, a difficulty was suggested 
 by Major Scott, the marshal of the Virginia district, as 
 arising out of the order of the court, by virtue of which 
 Mr. Burr had been removed from the penitentiary house, 
 to his present lodgings. He stated that he had been 
 informed from good authority, that the secretary of the 
 treasury had declared, that he would not allow his 
 charge of seven dollars per day for the guards employed
 
 404 TRIAL OF AARON BURR. 
 
 for the safe-keeping of the prisoner; and, therefore, he 
 might lose that sum, which he had hitherto been advanc- 
 ing out of his own pocket. 
 
 The Chief Justice declared the firm conviction of the 
 court, that the order, heretofore made, was legal and 
 proper; that the payments made in pursuance thereof, 
 would be sanctioned by the court, and ought to be al- 
 lowed by the secretary of the treasury. He could not 
 believe that the secretary would finally disallow those 
 items in the marshal's account. But as the officer of 
 the court ought not to be subjected to any risk in obey- 
 ing its directions ; and, if the secretary should refuse to 
 allow him a credit for the money paid, the court had no 
 power to compel him to do so; and the situation of the 
 marshal was such, that he dared not enter into a contro- 
 versy with the secretary ; the court was disposed to re- 
 scind the order, unless some arrangement could be made 
 by Mr. Burr and his counsel, for the indemnification of 
 the marshal. 
 
 Mr. Burr declared that an offer had already been 
 made on his part to indemnify the marshal, and that he 
 was still ready and willing to give him satisfactory 
 security that the money should be paid him, in case the 
 secretary of the treasury should refuse to allow the credit. 
 
 Some desultory conversation ensued, but nothing 
 positive was agreed upon ; but it appeared to be under- 
 stood, that security was to be given to Major Scott, and 
 that Mr. Burr was to remain in his apartment near the 
 Swan Tavern. 
 
 MONDAY, August loth, 1807. 
 
 After the court met, Herman Blannerhasset was 
 brought into court. 
 
 The following gentlemen appeared, and were recog- 
 nized. Return J. Meigs, Maurice P. Bellnap, Charles 
 
 Duvall, James Taylor, Tunis , Bennett Cook, Heze- 
 
 kiah Lewis, and G. B. Vanhorne. 
 
 Mr. Wirt moved the court to discharge Dr. Wardlaw, 
 one of the venire. His wife was in extreme danger, and 
 required the assistance of a sea voyage. The vessel 
 would sail to-morrow.
 
 IMPANELING THE JURY. 405 
 
 Chief Justice. Is the court to understand that there is 
 no objection to this motion? 
 
 Mr. Burr. It the remark be addressed to me, sir, I 
 can only say, that I shall remain passive. Dr. Wardlaw 
 '.vas then dismissed. 
 
 Mr. Mac Rae also moved the discharge of Mr. Ran- 
 dolph Harrison, whose extreme indisposition was at- 
 tested by* a certificate from Dr. Adams. Mr. Harrison 
 was accordingly dismissed in the same manner. 
 
 Mr. Hay moved that Herman Blannerhasset be 
 arraigned for treason ; which, 
 
 Mr. Botts opposed, on the ground that he had not been 
 furnished with a copy of the indictment three days pre- 
 viously. After some desultory conversation on this cir- 
 cumstance, 
 
 Mr. Botts requested that Mr. Blannerhasset be recon- 
 veyed to the penitentiary, as he was extremely indis- 
 posed, and the heat nearly overpowered him. No op- 
 position was made, and Mr. Blannerhasset was accordingly 
 reconducted to his prison. 
 
 At Mr. Hay's request, the panel of the jury was called 
 over by the deputy marshal, and also at Mr. Burr's 
 request, the list of the witnesses whom he had sub- 
 poenaed, for the purpose of investigating the qualifica- 
 tions of some of the venire. 
 
 Mr. Hay read a certificate from Dr. Upshaw, stating 
 that Mr. James Henderson is sick of a bilious fever, and 
 incapable of attending. 
 
 Mr. Mac Rae then read a certificate from Dr. Green- 
 how, showing that David Bullock, esq., one of the venire 
 was prevented by indisposition from discharging his 
 duties. Mr. Bullock was accordingly excused. 
 
 The clerk informed Mr. Burr, that he was at liberty to 
 challenge such of the venire as he might object to. 
 
 Mr. Burr begged leave to inform the jurors who were 
 within hearing, that a great number of them may have 
 formed and expressed opinions about him, which might 
 disqualify them from serving on this occasion. He ex- 
 pected that as they came up, they would discharge the du- 
 ties of conscientious men, and candidly answer the ques- 
 tions put to them, and state all their objections against
 
 406 TRIAL OF AARON BURR. 
 
 The deputy marshal then summoned first, Hezekiah 
 Bucky. 
 
 Mr. Botts. We challenge you for cause. Have you 
 ever formed and expressed an opinion about the guilt of 
 Mr. Burr? 
 
 Mr. Bucky. I have not, sir, since I have been sub- 
 pcenaed. 
 
 Question. Had you before ? 
 
 Answer. I had formed one before in my own mind. 
 
 Mr. Hay wished that the question of the opposite 
 counsel could assume a more precise and definite form. 
 If this question were proposed to this man, and to every 
 other man of-the panel, he would venture to predict that 
 there could not be a jury selected in the state of Virginia ; 
 because he did not believe that there was a single man 
 in the state, qualified to become a juryman, who had not, 
 in some form or other, made up and declared an opinion 
 on the conduct of the prisoner. The transactions in the 
 west had excited universal curiosity ; and there was no 
 man who had not seen and decided on the documents 
 relative to them. Do gentlemen contend, that in a 
 case so peculiarly interesting to all, the mere declaration 
 of an opinion is sufficient to disqualify a juryman ? A 
 doctrine of this sort, would at once acquit the prisoner ; 
 for where is the jury that could try him? Such a doc- 
 trine amounts to this : that a man need only to do 
 enough to draw down the public attention upon him, and 
 he would immediately effect his discharge. Mr. Hay 
 concluded with a hope, that the question would assume 
 a more definitive form ; he should not pretend to decide 
 the form in which it should be proposed, for that was the 
 province of the court ; it was a privilege to which every 
 court is entitled ; and one which the court had exercised 
 in the case of James T. Callender. 
 
 Mr. Botts considered it as a misfortune ever to be de- 
 plored, that in this country, and in this case, there had 
 been too general an expression of the public sentiment, 
 and that this generality of opinion would disqualify 
 many ; but he had never entertained a doubt, until the 
 gentleman for the prosecution had avowed it, that twelve 
 men might be found in Virginia, capable of deciding this 
 question with the strictest impartiality. He still trusted
 
 IMPANELING THE JURY. 407 
 
 that the attorney for the United States was mistaken ; 
 that the catastrophe was not completely fixed : and that 
 every man in the state had not pledged himself to con- 
 vict Mr. Burr, whether right or wrong. He was not 
 present at the trial of James T. Callender ; but all 
 America had heard the question which was then pro- 
 pounded to the jurymen ; and that was, whether they had 
 made up and expressed an opinion respecting the guilt 
 of the prisoner. 
 
 Mr. Hay said that he would put Mr. Botts right as to 
 matter of fact. The court would recollect that on the 
 trial of Callender, the question was, not whether the 
 jurymen had formed and expressed an opinion on that 
 case generally, but on the subject-matter that was to be 
 tried, and contained in the indictment. The question, 
 then, in the present case should be, " Have you formed 
 and expressed an opinion on the point at issue that is, 
 whether Aaron Burr be guilty of treason ?" On the trial 
 of Callender, the court would particularly recollect, that 
 Mr. John Basset having objected to himself, because he 
 had read the libelous publication, was actually over- 
 ruled, because it was not on the book itself, but on the 
 subject-matter of the indictment, that he was called upon 
 to say, whether he had ever expressed an opinion. 
 
 Mr. Burr declared that there was a material distinction 
 between that and the present case. Mr. Basset's 
 acknowledging that he had seen the book did not dis- 
 qualify him from serving on the jury ; in the same man- 
 ner, the person who had seen a murder committed, would 
 not be an incompetent juror in the prosecution for that 
 crime. But if a man pretended to decide upon the guilt 
 of a prisoner, upon mere rumor, he would manifest such 
 a levity and bias of mind, as would effectually disqualify 
 him. Mr. Bucky, however, has not yet come out com- 
 pletely with his declarations. Let him be further interro- 
 gated. 
 
 Mr. Hay observed that the question would still be too 
 general and vague, if it were even to be, " Have you ex- 
 pressed any opinion on the treason of Aaron Burr?" for 
 the case stated in the indictment was infinitely more 
 specific. It was treason in levying war against the United 
 States at Blannerhasset's island. Unless this particulai
 
 4 o8 TRIAL OF AARON BURR. 
 
 allegation be proved, it defeats all the other parts of the 
 accusation ; and it was probably on this point that the 
 juror had never made up any opinion. 
 
 Mr. Martin contended that it was the duty of every 
 juryman to come to the trial of any case with the most 
 perfect impartiality ; and more particularly one where 
 life and reputation were at stake ; that it was a libel upon 
 Virginia, a blot upon the whole state, to assert that 
 twelve men could not be found to decide such a case, 
 with no other knowledge than what they had picked up 
 from newspapers : that there was a material distinction 
 between this and Callender's case ; the libel was a book 
 in every man's hand ; but does any juryman in the pres- 
 ent case pretend to know the testimony on which this 
 charge depends? The gentleman proposes to ask the 
 juryman, whether he have made up an opinion on Mr. 
 Burr's treason ? But it is extremely probable that most 
 of them know not what treason is, and though they may 
 decide upon the guilt of Mr. Burr, they may be ignorant 
 whether it come under the name and description of 
 treason. 
 
 Mr. Botts quoted authorities in support of his opinion, 
 but they are not all inserted here, because the same ques- 
 tion was afterwards very fully argued, and many author- 
 ities cited. The trials of Smith and Ogden in New York, 
 and the opinion of Judge Iredel, on the trial of John 
 Fries, in Pennsylvania, were particularly referred to. 
 
 The Chief Justice observed, that it might save some 
 altercation, if the court were to deliver its opinion at the 
 present time ; that it was certainly one of the clearest 
 principles of natural justice, that a juryman should come 
 to a trial of a man for life, with a perfect freedom from 
 previous impressions ; that it was clearly the duty of the 
 court to obtain, if possible, men free from such bias ; but 
 that if it were not possible, from the very circumstances 
 of the case, if rumors had reached and prepossessed 
 their judgments, still the court was bound to obtain as 
 large a portion of impartiality as possible ; that this was 
 not more a principle of natural justice, than a maxim of 
 the common law, which we have inherited from our fore- 
 fathers ; that the same right was secured by the consti- 
 tution of the United States, which entitles every man
 
 IMPANELING THE JURY. 409 
 
 under a criminal prosecution, to a fair trial by " an im- 
 partial jury." Can it be said, however, that any man is 
 an impartial juryman, who has declared the prisoner to 
 be guilty and to have deserved punishment? If it be 
 said that he has made up this opinion, but has not heard 
 the testimony, such an excuse only makes the case 
 worse, for if the man have decided upon insufficient tes- 
 timony, it manifests a bias that completely disqualifies 
 himself from the functions of a juryman. It is too gen- 
 eral a question, to ask whether he have any impressions 
 about Mr. Burr. The impressions may be so light, that 
 they do not amount to an opinion of guilt ; nor do they 
 go to the extent of believing, that the prisoner deserves 
 capital punishment. With respect to Mr. Basset's opin- 
 ion, it was true he had read " The Prospect before Us; " 
 and he had declared that is was libel ; but Mr. Basset 
 had formed no opinion about James T. Callender's being 
 the author. It was the same principle in the present 
 case. If a juryman were to declare that the attempt to 
 achieve the dismemberment of the union was treason, it 
 would not be a complete objection or disqualification ; 
 but it would be the application of that crime to a partic- 
 ular individual ; it would be the fixing it on Aaron Burr 
 that would disable him from serving in this case, Let 
 the counsel, then, proceed with the inquiry. 
 
 Mr. Botts. Have you said that Mr. Burr was guilty of 
 treason ? 
 
 Mr. Bucky. No. I only declare.d that the man who 
 acted as Mr. Burr was said to have done, deserved to be 
 hung. 
 
 Question. Did you believe that Mr. Burr was that 
 man ? 
 
 Answer. I did, from what I had heard. 
 
 Mr. Hay. I understand, then, that the question pro- 
 posed in Callender's case is to be overruled ? 
 
 Chief Justice. My brother judge does not recollect 
 whether it particularly went to the indictment or not. 
 
 Judge Griffin. I think the question was, "relative to 
 the matter in issue." 
 
 Mr. Hay. The very position that I have laid down. 
 
 Chief Justice. The simple question is, whether the 
 having formed an opinion, not upon the evidence ia
 
 410 TRIAL OF AARON BURR. 
 
 court, but upon common rumor, render a man incompe- 
 tent to decide upon the real testimony of the case? 
 
 Mr. Wirt (addressing Mr. Bucky ). Did I understand 
 you to say that you concluded upon certain rumors you 
 had heard, that Mr. Burr deserved to be hung? 
 
 Mr. Bucky. \ did. 
 
 Question. Did you believe these rumors? Answer. I 
 did. 
 
 Question. Would you, if you were a juryman, form 
 your opinion upon upon such rumors? Answer. Cer- 
 tainly not. 
 
 Mr. Mac Rae. Did you form and express your opinion 
 upon the question whether an overt act of treason had 
 been committed at Blannerhassett's island? 
 
 Answer. It was upon other rumors, and not upon that, 
 that I had formed an opinion. 
 
 Mr. Martin submitted it to the court, whether he could 
 be considered an impartial juryman. 
 
 The court decided that he ought not to be so consid- 
 ered, and he was accordingly rejected. 
 
 James G. Laidly stated that he had formed and ex- 
 pressed some opinions unfavorable to Mr. Burr, that he 
 could not pretend to decide upon the charges in the 
 indictment, which he had not heard ; that he had princi- 
 pally taken his opinions from newspaper statements; and 
 that he had not, as far as he recollected, expressed an 
 opinion that Mr. Burr deserved hanging; but that his 
 impression was that he was guilty. He was therefore set 
 aside. 
 
 James Compton being challenged for cause and sworn, 
 stated that he had formed and expressed an opinion from 
 hearsay, that Mr. Burr was guilty of treason, and of that 
 particular treason of which he stood charged, as far as he 
 understood. He was rejected. 
 
 Mr. Burr observed that as gentlemen on the part of the 
 prosecution had expressed a willingness to have an im- 
 partial jury, they could not refuse that any juryman 
 should state all his objections to himself ; and that he had 
 no doubt, in spite of the contrary assertions which had 
 been made, that they could get a jury from this panel. 
 
 Hamilton Morrison upon being called, said that he 
 had frequently thought and declared that Mr. Burr was
 
 IMPANELING THE JURY. 411 
 
 guilty, if the statements which he had 'heard were true; 
 that he did not know whether they were so ; but only 
 thought from the great clamor which had been made that 
 it might be possible that they were true; that he had 
 not passed any positive opinion ; nor was he certain 
 that he had always qualified it by saying, " if these things 
 were true; " that'he does not recollect to have said that 
 Mr. Burr ought to be punished, without stating at the 
 same time, " if he were guilty." Mr. Morrison was sus- 
 pended for further examination. 
 
 Yates S. Conwell had formed and expressed an opinion 
 from the reports he had heard, that Mr. Burr must be 
 guilty of high treason. He was accordingly set aside. 
 
 Jacob Beeson declared that he had for some time past 
 formed an opinion, as well from newspaper publications 
 as from the boats which had been built on the Ohio, that 
 Mr. Burr was guilty ; and that he himself had borne arms 
 to suppress this insurrection. He was therefore set aside 
 as incompetent. 
 
 William Prince declared, he had nearly the same 
 impressions as Mr. Beeson; that he too had borne arms; 
 as well on Blannerhasset's island, as on descending the 
 river, in search of Blannerhasset. He was set aside in 
 like manner. 
 
 Nimrod Saunders declared that he had expressed an 
 opinion previously to his being summoned on the jury, 
 that the prisoner had been guilty of treason. He was 
 therefore set aside as incompetent. 
 
 Thomas Creel had no declaration to make, and was 
 challenged for cause. Upon being interrogated, he stated 
 that he had never asserted that the prisoner ought to be 
 punished; that he had said that he was a sensibleman ; 
 and if there were any hole left, he would creep out of it ; 
 that he had conceived that Mr. Burr had seduced Blan- 
 ner'hassett into some acts that were not right ; that he 
 had never positively said that Mr. Burr was guilty; that 
 he had said that Blannerhasset was the most blamable, 
 because he was in good circumstances, and well off in 
 life; whereas Mr. Burr's situation was desperate, and that 
 he had little to lose ; that he had not said that Mr. Burr 
 had directly misled Mr. Blannerhasset, but through the 
 medium of Mrs. Blannerhasset ; in short, that there
 
 4i2 TRIAL OF A A ROW BURR. 
 
 was no determinate impression on his mind respecting the 
 guilt of the prisoner. 
 
 The Chief Justice did not think that this was sufficient 
 to set him aside, and suspended his case for further 
 examination. 
 
 Anthony Buckner had frequently said that the prisoner 
 deserved to be hanged. He was therefore set aside. 
 
 David Creel had formed an opinion from the state- 
 ments in the newspapers, and if these were true, the 
 prisoner was certainly guilty. He had expressed a 
 belief that he was guilty of the charges now brought 
 against him, and that he ought to be hanged. He was 
 therefore rejected. 
 
 Jurors from the body of the district. 
 
 John Horace Upshaw declared that he conceived him- 
 self to stand there as an unprejudiced juryman, for he 
 was ready to attend to the evidence ; but that as he had 
 formed opinions hostile to the prisoner (if opinions they 
 can be. called which are formed from newspaper testi- 
 mony), and had, he believed, frequently expressed them ; 
 that he was unwilling to subject himself to the imputa- 
 tion of having prejudged the cause. 
 
 Mr. Burr. We challenge Mr. Upshaw for cause. 
 
 Mr. Hay. Then, sir, I most seriously apprehend that 
 we shall have no jury at all. I solemnly believe Mr. Up 
 shaw is an intelligent and upright man, and can give a 
 correct verdict on the evidence; and I will venture to 
 assert (whatever credit my friends on the other side will 
 allow to my assertion), that I myself could do justice to 
 the accused ; I believe that any man can, who is blessed 
 with a sound judgment and integrity. We might as 
 well enter at once a nolle prosequi, if he is to be rejected. 
 
 Mr. Wickham. Then according to the gentleman's 
 doctrine any honest man, no matter what his impressions 
 may be, is a competent juryman. Is this agreeable to 
 the principles of law ? Does the gentleman mean to 
 insinuate that when we object to a juryman, it is for his 
 want of honesty ? No, sir, every man is subject to par- 
 tialities and aversions, which may conscientiously sway 
 his judgment. Mr. Upshaw does no doubt deem him-
 
 IMPANELING THE JURY. 413 
 
 self an impartial juryman ; but Mr. Upshaw may be 
 deceived. 
 
 After some desultory argument between Messrs. Hay 
 and Wickham, Mr. Wirt proceeded to ask Mr. Upshaw 
 whether he had understood him to say that notwith- 
 standing the hostile impressions he had taken up from 
 newspaper reports, these impressions had not received 
 that determinate character which might entitle them to 
 the name of opinions. 
 
 Ansiuer. I have received impressions hostile to Mr. 
 Burr, and have expressed them with some warmth ; but 
 my impressions have not been induced by anything like 
 evidence. They were predicated on the deposition of 
 General Eaton and the communications of General Wil- 
 kinson to the president of the United States. I had 
 conceived that the prisoner had been guilty of some 
 criminal act against the public, and ought to be pun- 
 ished, and I believe also that I went on further to vin- 
 dicate the conduct of those gentlemen who would appear 
 as the principal witnesses against him ; and also of the 
 government in the. measures which it had taken to sup- 
 press his plans. After some further and animated discus- 
 sion on this point, Mr. Upshaw's case was suspended for 
 subsequent examination. 
 
 William Pope declared that his impressions were 
 nearly the same with those of the gentlemen who had 
 preceded him : that he had thought at first, from news- 
 paper representations, that it was Mr. Burr's intention to 
 make his fortune in the west by the settlement of lands ; 
 that when he had afterwards understood that he had 
 formed a union with Wilkinson to proceed to Mexico he 
 had regarded the prisoner's conduct in such a light, that if 
 he had proceeded to Mexico he would have considered it 
 as an excusable offense, but when he had afterwards un- 
 derstood that there was treason mixed with his projects 
 it was impossible for him to view his conduct without the 
 deepest indignation; if these impressions could be called 
 prejudices, he trusted that he should always retain them ; 
 what other sentiments could he feel against such a crime 
 perpetrated against the very best government on the sur- 
 face of the earth ? But Mr. Pope declared that from his 
 heart he believed that he could divert himself of these
 
 414 TRIAL OF AARON BURR. 
 
 unfavorable impressions, and give Mr. Burr a fair and 
 nonorable trial. He would add, that in pursuance of the 
 spirit manifested by the constitution which required two 
 witnesses to an overt act of treason, he should think it 
 necessary that the evidence for the United States should 
 be so strong as to make the scale preponderate. 
 
 Mr. Wickham. You will not misunderstand me, Mr. 
 Pope, when I ask you whether you have not been a can- 
 didate for your county, and whether you be not now a 
 delegate ? 
 
 A nswer. Yes. 
 
 Question. In canvassing among the people, have you 
 not declared, that the government had acted properly in 
 commencing this prosecution? 
 
 Answer. Yes; I believe I have said, generally, that I 
 thought Mr. Burr was guilty of high treason. Mr. Pope 
 was therefore set aside. 
 
 Peyton Randolph declared, that it had never been his 
 wish or intention to shrink from the discharge of a public 
 duty ; but that he had peculiar objections to serve on 
 this occasion ; one of which only, he should state. He 
 had been enrolled and was qualified as a lawyer in this 
 court ; and he would submit it to the court, whetherlhis 
 did not exempt, if not disqualify, him from serving ? 
 
 Chief Justice admitted Mr. Randolph's privilege, un- 
 less there were an express interposition on the part of 
 the prisoner, to retain him and others of the venire who 
 had privileges : for this would call a conflicting privilege 
 into operation. 
 
 Mr. Burr said that he should be passive. 
 
 John Bowe did not recollect to have said, that the 
 prisoner was guilty of treason, but of something hostile 
 to the peace and happiness of the United States. Upon 
 being interrogated he observed that he was a delegate 
 from the county of Hanover ; that there had been a 
 competition at the last election ; that he had had occa- 
 sion to speak at that time of the views of the prisoner, 
 but had always done it cautiously ; had never asserted 
 that he ought to be hung, but that he was guilty of 
 something unfriendly to the peace of the United States. 
 
 Mr. Wickham. You have said that the prisoner was 
 guilty ?
 
 IMPANELING THE JURY. 415 
 
 Answer. Yes. 
 
 Chief Justice. Did you ever make up an opinion 
 about his levying troops and making war against the 
 United States, 
 
 Answer. Yes : but I have never expressed it. 
 
 Mr. Burr. Take the whole together, and it amounts 
 to an opinion of treason. Mr. Bowe has said, that Mr. 
 Burr was guilty ; and of what ? Of that which in Mr. 
 Bovve's mind amounts to the definition of treason. He 
 was therefore set aside. 
 
 John Roberts had thought and declared, from the 
 reports in the public newspapers, that the prisoner was 
 guilty of treason, though he had no doubt that his opin- 
 ion might be changed by the production of other testi- 
 mony. He was set aside as incompetent. 
 
 Joshua Chaffin excused from indisposition. 
 
 7. Jervis Storrs observed that the state of his mind 
 was like that of the gentleman who had gone before him 
 (Mr. Bowe) ; he was in the habit of reading newspapers, 
 and could not but examine their statements relative to 
 these transactions. If he could believe General Eaton's 
 assertion that the prisoner had threatened to turn con- 
 gress out of doors and assassinate the president, he had 
 said, and would still say, that Mr. Burr was guilty of 
 treason. If General Wilkinson's letter were true, he had 
 surely been guilty of something in the west that was 
 hostile to the interest of the United States. He did not 
 know whether, in the* multifarious conversations he had 
 had on this subject, he had always expressed this opinion 
 of his guilt with that reservation. He had very often 
 communicated his impressions that he was plotting some 
 hostile designs against the United States. Mr. Storrs 
 confessed that he might be prejudiced against the pris- 
 oner ; and that he might be judging too highly of his 
 own mind, to entertain the belief that he could divest 
 himself of all his impressions; and upon the whole, he 
 expressed a wish not to serve. He was then rejected. 
 
 8. Miles Selden declared that it was impossible not to 
 have entered into the frequent conversations which had 
 occurred on this topic, and to have declared some opin- 
 ion ; that he had always said that Mr. Burr was guilty of 
 something, and that if he were guilty of treason against
 
 4i6 TRIAL OF AARON BURR. 
 
 such a government as that of the United States, he would 
 deserve to be hanged ; that he could not assert that 
 he had always accompanied his opinions with this reser- 
 vation ; but that he was not afraid to trust himself in the 
 rendering of a verdict. 
 
 Upon being interrogated, he said that he had fre- 
 quently jested on this subject ; and particularly recol- 
 lected to have said in a sportive conversation with Colonel 
 Mayo, that this was a federal plot and that Burr had 
 been set on by the federalists. Colonel Selden was there- 
 fore suspended for further consideration. 
 
 9. Lewis Truehart had said that if the reports were 
 correct, Mr. Burr had been guilty of something inimical 
 to the country, and that he always qualified his opinions 
 in that manner. 
 
 Colonel Tinsley was then called in as a witness, who 
 stated, that from a conversation with Mr. Truehart, he 
 thought that he had discovered that he had a general pre- 
 possession against Mr. Burr. He did not expect to be called 
 on, and had no very distinct recollection of the partic- 
 ulars ; that this was before any of the proceedings of the 
 trial : and when he heard that he was summoned as one of 
 the venire, he then recollected their conversation and hap- 
 pened casually to mention it. Mr. Truehart suspended. 
 
 William Yancey had expressed an opinion on news- 
 paper testimony that Mr. Burr was guilty; that he had 
 frequently said that he would believe the statements of 
 newspapers till the contrary were proved : but that he 
 had no doubt he should entertain a different sentiment, 
 if other testimony were produced He was set aside. 
 
 Thomas Prosser was next called. He said that he had 
 made numberless declarations about Mr. Burr ; that he 
 had believed him to be guilty of a treasonable intention, 
 but not of the overt act ; on this point he had suspended 
 his opinion, but he was rather inclined to believe that he 
 had not committed it. 
 
 Mr. Martin. Can this gentleman be considered as an 
 impartial juryman, v hen he thus comes with his mind, 
 made up on one-half of the guilt ? He-was suspended for 
 further consideration. 
 
 John Staples had been under the same impressions, 
 which had been described by others ; that he dared to
 
 IMPANELING THE JURY. 417 
 
 say, that he had said Mr. Burr was guilty of levying 
 troops and making war upon the United States. He 
 was set aside. 
 
 Edward C. Stanard acknowledged that his prejudices 
 against Mr. Burr had been deep-rooted ; that he had no 
 doubt of the criminality of his motives, but that he had 
 doubts of the commission of an overt act ; he regretted 
 that a man of his talents and energetic mind, should be 
 lost to his country. Upon being interrogated he ob- 
 served that he had doubts as to the overt act, because 
 he believed him to be a man of such deep intrigue as 
 never to jeopardize his own life, till thousands fell before 
 him. He was rejected. 
 
 Richard B. Goode was then called. 
 
 I have never seen, neither do I believe, that I have 
 heard correctly, the evidence in this prosecution. From 
 common report and newspaper information I have formed 
 an opinion unfavorable to Mr. Burr: that opinion has 
 been strengthened by what I have heard from the lips of 
 Mr. Burr in this court ; but without arrogating to myself 
 more virtue than belongs to other men, if I know myself, 
 I have formed no opinion which can not be altered by the 
 evidence. 
 
 Mr. Baker. Did you not endeavor to displace Mr. 
 Heth as captain of the Manchester cavalry, for becoming 
 the bail of Mr. Burr. 
 
 Answer. I never did. (Here several witnesses were 
 directed to be called.) 
 
 Mr. Goode. I will state the circumstance to which you 
 allude, unless you prefer to prove it. 
 
 The Court. Do so, if you please. 
 
 Mr. Goode. On the 4th of July, 1806, I was a mem- 
 ber of a committee with Captain Heth, appointed to pre- 
 pare toasts to be drunk on that day by the Manchester 
 cavalry. I profess to be attached to the present admin- 
 istration of the general government, and wished to ex- 
 press such a sentiment. Captain Heth declared that he 
 had not confidence in the executive, and rather than ex- 
 press such a sentiment he would resign his commission. 
 At that time, I thought Captain Heth and myself differed 
 only as to measures, and not as to principles; and that it 
 was an honest opinion. But in a few months after, when 
 
 27
 
 4 i 8 TRIAL OF AARON BURR. 
 
 I understood that Captain Heth had become bail for Mr. 
 Burr, and was his zealous friend, with whom he was 
 neither connected nor acquainted, but a stranger, who, 
 three years ago, would have been consigned to the grave 
 by Captain Heth, and those thinking with him upon 
 political subjects ; and when I recollected the charge 
 preferred against Mr Burr, I confess that the declaration 
 and conduct of Captain Heth made such impressions 
 upon my mind, that I refused to trust my person with 
 him as a military commander, and I would do it again. 
 
 Mr. Burr. Pray, sir, did you not write a letter to Cap- 
 tain Heth ? 
 
 Answer. I did ; and I have reasons to believe that 
 that letter is in your possession or in the possession of 
 your counsel. You are at liberty to show it to the court, 
 or I will repeat that part of it which relates to Captain 
 Heth and yourself. 
 
 The Court. Do so, sir. 
 
 Mr. Goods. A few weeks past, I received a letter from 
 Captain Heth, commanding me to appear at a certain time 
 and place, in order to take my proper command in the 
 troop. I wrote him in answer, that my post as a soldier 
 would never be abandoned, and that my duty as a citizen 
 forbade that I should silently approve of the conduct of 
 those who had extended a favor to a traitor, which the 
 justice of my country denied to an unfortunate debtor, 
 or words to that effect. 
 
 Mr. Goode was then rejected. 
 
 Nathaniel Selden stated he had formed an opinion, 
 particularly from General Eaton's deposition that the 
 intentions of the prisoner were hostile to the United 
 States ; but that he had also said he had seen no'evi- 
 dence to satisfy him that he had been guilty of an overt 
 act. He was suspended for further consideration. 
 
 16. Esme Smock declared that he had formed and ex- 
 pressed an opinion that Mr. Burr had treasonable de- 
 signs. 
 
 Chief Justice. To what time did your opinion relate ? 
 
 Mr. Smock. I have formed my opinion from news- 
 paper publications and common report ; but I have con- 
 stantly conceived that Mr. Burr's intentions were trea- 
 sonable throughout.
 
 IMPANELING THE JURY. 419 
 
 Mr. Wickham. Have you ever formed an opinion 
 that Mr. Burr was guilty of treason ? 
 
 Answer. I have in my own mind. He was set aside. 
 
 Richard E. Parker said that he had, like every other 
 person, formed an opinion on that case, on newspaper 
 statements ; but he had heard very little of the evidence 
 that may be adduced on this occasion. He had declared 
 that if these newspaper statements were true, Mr. Burr 
 had been guilty of some design contrary to the interest 
 and laws of the United States. As to the doctrine of 
 treason, he had not formed a conclusive opinion. 
 
 Mr. Burr. I have no objection to Mr. Parker. 
 
 He was therefore elected. 
 
 A desultory argument here ensued, about the propriety 
 of swearing one juryman at a time. The counsel for the 
 prosecution opposed, the counsel for the prisoner advo- 
 cated the doctrine. The court decided that it would 
 adhere to the practice of Virginia; and swear four jury- 
 men at a time. 
 
 John W. Ellis said that he had no doubt that the pris- 
 oner had been guilty of' having treasonable designs ; 
 whether he had proceeded to acts, he had doubt. He 
 was suspended. 
 
 Thomas Starke, without any expectations of being sum- 
 moned as a juryman, had stated his opinion to his neigh- 
 bors, who had asked him questions on the subject, that 
 Mr. Burr had been guilty of high treason. He was set 
 aside. 
 
 William White stated that he had been in the Western 
 country, in May last ; and from Mr. Burr's character and 
 from the representations he had received of his conduct, 
 he had been induced to say that he was guilty of trea- 
 son, and that he ought to be hanged, or that hanging was 
 too good for him. He was set aside. 
 
 William B. Chamberlaine stated that he stood in a very 
 peculiar situation ; if, as Mr. Wickham declared, any man 
 were unfit to be a juryman who had asserted Mr. Burr to 
 have been worthy of death, he was ready to confess that 
 he himself came under this restriction. He had said 
 uniformly, that he had treasonable designs ; but he did 
 not now believe that Mr. Burr had committed an overt 
 act of treason ; though he believed him to be guilty of
 
 420 TRIAL OF AARON BURR. 
 
 the intention. He however believed that he could do 
 him justice ; and that he could conscientiously pass be- 
 tween him and his country. He was rejected. 
 
 David Lambert wished to be excused on account of 
 his indisposition ; but the court rejected his plea. On 
 being interrogated, he declared that he did not recollect 
 to have formed an opinion, for or against Mr. Burr. He 
 was elected. 
 
 William Hoomes had no hesitation in saying, that he 
 had often declared his opinion that Mr. Burr was guilty 
 of treasonable intentions, and perhaps, he might say, of 
 treason itself. He had imbibed his impressions from 
 everything he had seen, heard, or read. He had under- 
 stood that Mr. Burr's counsel had made preparations to 
 prove that he had disqualified himself by his own dec- 
 larations. He should thank them to develop their objec- 
 tions. 
 
 Mr. Burr. I assure you, sir, no such preparation has 
 been made. He was set aside. 
 
 24. Overton Anderson said that he had often expressed 
 an opinion that Mr. Burr's views were inimical to the 
 United States ; these opinions he had principally formed 
 upon newspaper statements ; he did not recollect that he 
 had ever asserted him to be guilty of treason ; but he 
 had sometimes given credit to the representations, which 
 he had heard, without particularly defining the degree of 
 guilt in which they might involve the prisoner, and 
 thought him guilty of the charge against him, though he 
 would not say it was treason. He was rejected. 
 
 Hugh Mercer, upon being called, said, that it was his 
 duty to state that an opinion, which he had for some 
 time past entertained, of the character of Mr. Burr, 
 was unfriendly to a strictly impartial inquiry into his 
 case ; that he was entirely uninformed as to the testi- 
 mony which would be introduced, and that he cHd not 
 recollect to have ever expressed a positive opinion, either 
 as to his guilt or innocence. He was elected. 
 
 Jerman Baker had entertained opinions unfavorable to 
 Aaron Burr, which he had repeatedly expressed. He had 
 spoken them with warmth, for it was his nature to be 
 warm. He had no doubt that the prisoner had formed 
 very unfriendly designs against the United States; but
 
 IMPANELING THE JURY, 421 
 
 from his ignorance of the evidence, he could not venture 
 to say, that they had ripened into an overt act. 
 
 Mr. Burr. What opinion have you formed of me? 
 
 Answer. A very bad one; which I have expressed of- 
 ten when called upon ; and often when not. He was set 
 aside. 
 
 Edward Carrington, next called, said that he had 
 formed an unfavorable opinion of the views of Mr. Burr; 
 but these opinions were not definitive. Some had said 
 that Mr. Burr's object was to invade the Spanish territo- 
 ries ; others that it was to dismember the union ; his own 
 opinion had not been definitely fixed. There was another 
 subject connected with this trial, on which he had also 
 expressed his opinions ; and that related to the measures 
 taken at New Orleans. His own opinion had been, that 
 it was impossible for any one at this remote scene, to 
 determine upon the state of affairs in that city ; but if 
 General Wilkinson did seriously believe what he said had 
 been represented to him as the views of Mr. Burr, that 
 he ought to consider it as an extreme case, and take ex- 
 treme measures, and act somewhat in the manner that 
 General Wilkinson had done. This has been the state of 
 his mind for twelve months. 
 
 Mr. Burr. Have you, colonel, any prejudice of a 
 more settled kind and ancient date against me? 
 
 Colonel Carrington. None at all. 
 
 Mr. Burr. He is elected. 
 
 Mr. Parker said that perhaps he had been misunder- 
 stood by the court and Mr. Burr ; perhaps he was dis- 
 qualified, and he wished to be distinctly understood. 
 He said that he had expressed no deliberate opinion on 
 the subject, yet he had believed that Mr. Burr had some 
 designs contrary to the interest of the United States ; 
 that he had formed no opinion of the truth of those dep- 
 ositions, but if they were true, his designs were treasona- 
 ble. Mr. Parker was returned as a juror. 
 
 The four jurymen that had been elected, were then called 
 to the book, and sworn, viz. Messrs. Parker, Lambert, 
 Mercer, and Carrington. 
 
 Robert Haskins had expressed an opinion that Mr. 
 Burr was guilty ; but does not recollect to what extent 
 ' -2 went. He went so far as to say, he was guilty of an
 
 422 TRIAL OF AARON BURR. 
 
 intention of treason, but not of an overt act. He might 
 have said he deserved to be hanged. He was set aside. 
 
 William R. Fleming had formed and frequently ex- 
 pressed an opinion, that Mr. Burr was guilty of treason- 
 able intentions ; and might have made a general declar- 
 ation, not only as to intentions, but to acts. He was set 
 aside. 
 
 George W. Smith suggested a right to the same ex- 
 emption which had been granted to Mr. P. Randolph. 
 The court said that this privilege, would be incontesti- 
 ble unless the prisoner should urge his conflicting privilege. 
 Mr. Burr then requested Mr. Smith to attend to-morrow. 
 Mr. Smith wished to be excused, as he had some important 
 business in another court to attend to. He should, how- 
 ever, attend on the trial to-morrow ; but it might now be 
 proper to state the general impressions which he had re- 
 ceived from these transactions. He had generally been so- 
 licitious to avoid an expression of his opinions ; and as in 
 such cases, where the government commences a prosecu- 
 tion against an individual, there is always a preponder- 
 ance of prejudice against him ; he himself had not only 
 been solicitous, not to declare, but even not to form, an 
 opinion. No one can, however, avoid reading represen- 
 tations of these things in the public papers ; and he had 
 formed, and declared, his impressions, that Mr. Burr had 
 entertained designs offensive to the peace and laws ot 
 the United States. What was the species of guilt, he 
 had not pretended to define ; but he had concluded from 
 the newspaper reports, and the testimony which he had 
 heard in the other end of the capitol, that his designs 
 were of a military nature, and that they might amount, at 
 least, to a misdemeanor. He was suspended for further 
 consideration. 
 
 mead T. Mason had formed no deliberate 
 opinion in regard to the actual commission of treason. 
 But it was his deliberate opinion that Mr. Burr had de- 
 signed, if not to subvert the government, at least to di- 
 vide the country. He was suspended for further consid- 
 eration. 
 
 32. Dabney Minor had often said that Mr. Burr's in- 
 tentions were unfriendly to the United States; that he 
 had said that if he were guilty of what was charged
 
 IMPANELING THE JURY. 423 
 
 against him, he ought to be hanged; but had heard no 
 positive testimony. 
 
 Some conversation here ensued between Mr. Minor 
 and Mr. Botts, when Mr. Minor was suspended until to- 
 morrow. 
 
 Thus, then, of the whole venire that appeared, four 
 only were elected and sworn, and nine were suspended 
 till arguments should be heard on the subject, in order to 
 aid the court to form an opinion whether they were 
 competent jurymen or not. 
 
 Here a discussion of considerable length took place, 
 on the propriety of confining or not confining, in the cus- 
 tody of the marshal, the jurors already sworn, till the 
 other eight should be sworn. 
 
 The court then decided that there was no necessity 
 for delivering the jurymen who had been, or should be 
 sworn into the custody of the marshal, until the whole 
 number had been impaneled and sworn. 
 
 TUESDAY, August nth, 1807. 
 
 Present, the Chief Justice and Judge Griffin. 
 
 The Chief Justice informed the counsel engaged in the 
 cause, that the court was ready to hear any observations 
 on the question before them yesterday, which they 
 might think proper to make. 
 
 Mr. Martin. We are ready to say something relative 
 to the situation that a juryman ought to be in, to enable 
 him properly to pass upon the case of a prisoner. 
 
 Mr. George W. Smith was the first of the jurors sus- 
 pended yesterday for subsequent examination, who was 
 called. He said that he supposed himself entitled to ex- 
 emption, from his profession as a practicing lawyer in this 
 court : that by the law of the land, as long as he behaved 
 with respect to the court, and diligence to his client, he 
 ought not to be obstructed in the pursuit of his profes- 
 sional duties : that though there wa.s no express statute 
 exempting him, yet he was exempted by reason of the 
 law. 
 
 Mr. Burr observed that, as some real or fictitious diffi- 
 culty had occurred in the selection of jurymen, he should 
 be extremely sorry, if such as were impartial should ob-
 
 424 TRIAL OF AARON BURR. 
 
 ject to themselves. If Mr. Smith, however, raised such 
 objections, he himself should submit to the decision of 
 the court, as he wished to be perfectly passive. 
 
 Mr. Smith did not know whether he deserved such an 
 encomium on his impartiality ; but as the arrangement 
 of his professional business, in other courts (though not 
 in this court at this particular time) would not permit 
 him to attend the trial with any convenience, he should 
 claim the privilege of exemption, to which, in his opin- 
 ion, he was entitled by law. 
 
 Chief Justice said that this privilege would certainly 
 exempt Mr. Smith, unless his attendance were claimed 
 by the prisoner ; and as Mr. Burr waived this right, Mr. 
 Smith was excused from attending. 
 
 James Henderson, of Wood county, who was absent 
 yesterday, was next called ; he was challenged for cause. 
 On being examined by Mr. Botts, he admitted that he 
 was not a freeholder, and was consequently set aside. 
 
 Mr. Hamilton Morrison was the next of the suspended 
 jurymen who was called. He declared that it was with 
 pain he should serve on the jury; that he did not wish 
 to serve on it ; that it was still more disagreeable to him, 
 as the defendant seemed to have such imaginary thoughts 
 against him ; that he had not meddled with the prison- 
 er's transactions, though perhaps he might have done so 
 had it been profitable to him. James Henderson and 
 Mr. Neale were both examined as to what they might 
 have heard him say on this subject, and both declared 
 that they'had heard him say nothing material. 
 
 Mr. Burr. Have not these rumors excited a prejudice 
 in your mind against me? 
 
 Answer. I have no prejudice for or against you. 
 
 Mr. Botts. Are you a freeholder? 
 
 Answer. I have two patents for land. 
 
 Question. Are you worth three hundred dollars ? 
 
 Answer. Yes; I have a horse that is worth the half 
 of it. 
 
 Question. Have you another at home to make up the 
 other half? 
 
 Answer. Yes ; four of them. [Here the court said 
 that sufficient cause had not been shown against his 
 being a proper juror.] I am surprised why they should
 
 IMPANELING THE JURY. 425 
 
 be in so much terror of me. Perhaps my name may be 
 a terror, for my first name is Hamilton. 
 
 Mr. Burr then observed that that remark was a suffi- 
 cient cause for objecting to him, and challenged him. 
 Mr. Morrison was therefore set aside. 
 
 This was the first peremptory challenge which the 
 prisoner made, of the thirty-five to which the law entitles 
 him. 
 
 Thomas Creel, another of the suspended jurymen from 
 Wood county, was next set aside by the court; because 
 he said that he had both formed and expressed sentiments 
 unfavorable to the prisoner. 
 
 John H. ypshaw was next called up. He stated, before 
 he was interrogated, that he had received strong impres- 
 sions against Mr. Burr, but that he believed he could 
 find a verdict according to testimony. 
 
 The Chief Justice wished to know, whether those im- 
 pressions related to the general charge of treason against 
 the prisoner, or to what happened before, or to what 
 circumstances? 
 
 Mr. Upshaw answered, that they related to the trans- 
 actions in the western country ; and added, " my opin- 
 ions have changed as the lights of evidence seemed 
 successively to appear. It was my first impression, that 
 he had nothing more in view than the settlement of the 
 lands on the Waschita. I next supposed that he in- 
 tended to attack Mexico ; but that as a mean of effect- 
 ing that object, he intended to attack New Orleans ; and 
 last of all, that his plans were of a more complicated 
 nature ; but that he never thought, till after his leaving 
 the mouth of the Cumberland, that Burr had treasonable 
 designs ; but that he could not recollect particularly the 
 times when he formed or changed these opinions. 
 
 Mr. Wickham asked him whether, as the result of all 
 these impressions, he did not consider Mr. Burr a 
 dangerous man ? He answered, that that was his im 
 pression. 
 
 Mr. Mac Rae. Have you formed or delivered an opin- 
 ion, that he has committed an overt act of treason, as 
 charged in the indictment? 
 
 Answer. I have not. 
 
 Mr. Martin said that he should state whether there
 
 426 TRIAL OF AARON BURR. 
 
 were any bias on his mind, although he did not believe 
 that an overt act had been committed ; for if he had 
 such bias, he was unfit for a juryman. 
 
 Mr. Baker. Have you not, in your own county, 
 argued in conversation to show that Mr. Burr was guilty, 
 and that there was strong presumptive evidence against 
 him ? 
 
 Answer. I have done so ; and not only supported 
 such opinions, but have gone on to vindicate the pro- 
 priety of the measures taken by the government. 
 
 Mr. Burr said that enough had appeared to shovr 
 that Mr. Upshaw had taken up strong prejudices against 
 him. 
 
 Mr. Hay asked whether such testimony as that could 
 disqualify him as a juryman ? 
 
 Mr. Upshaw said that he had been in the habit of 
 impressing on others his prejudices, or opinions, that 
 Burr was a dangerous man to the community. 
 
 Mr. Mac Rae. I beg leave to ask, whether personally 
 you have any prejudices against him ? Have you any 
 other prejudice against him, except that he has enter- 
 tained treasonable designs ? 
 
 He answered explicitly that he had not. 
 
 Mr. Burr. Had you not, anterior to those transac- 
 tions rumored in the western country, formed an un- 
 favorable opinion of me ? 
 
 Mr. Upshaw answered that he had before (with other 
 persons) formed rather an unfavorable opinion against 
 him, during the presidential election (of 1801), though 
 he had no positive evidence on that subject. 
 
 Here Mr. Upshaw was suspended, till the general ques- 
 tion on the doctrine of challenges should be argued. 
 
 Mr. Martin rose to proceed with his argument. He 
 stated that it was one of the soundest principles of law, 
 that every man had a right to be tried by an impartial 
 jury : that this right extended to all cases, civil and Crim- 
 inal ; but that in criminal cases it was secured by the 
 constitution in a positive and sacred manner, so that all 
 altercation as to the meaning of the terms was rendered 
 unnecessary. 
 
 Mr. Mac Rae apologized for interrupting Mr. Martin, 
 but suggested that it would be a saving of time, first,
 
 IMPANELING THE JURY. 427 
 
 to know the objections to all the jurors, and then to have 
 one general argument, as to all, instead of having an ar- 
 gument on each particular case as it might occur : that 
 he wished to economize time, and that the experience of 
 yesterday showed the propriety of saving time as much 
 as possible. Evidence is now heard as to this case, and 
 if it be argued, the court must hear arguments in the 
 case of every other juryman : he did not seethe necessity 
 of holding twelve arguments instead of one, where the 
 cases were precisely similar. He did not wish to pre- 
 scribe to gentlemen their course of proceeding, but he 
 really supposed that one argument would suffice for all 
 the cases. 
 
 To this the Chief Justice assented. 
 
 Mr. Martin. I have been repeatedly interrupted by the 
 gentlemen ; and they have found out in their infinite wis- 
 dom, that we are to hold twelve arguments on this point. 
 They talk, sir, of economy of time: they have shown a 
 happy instance of this economy of time, when I was 
 here on a former occasion. Lknow what kind of economy 
 they wish. They wish us to be silent; they would, if 
 they could, deprive Mr. Burr's counsel of an oppor- 
 tunity of defending him, that they might hang him up 
 as soon as possible, to gratify themselves and the gov- 
 ernment. 
 
 Mr. Mac Rae. That is a most unprincipled and most 
 unfounded assertion. 
 
 Mr. Burr said that he thought the gentlemen for the 
 prosecution were not altogether so wrong. Generally 
 the question was whether those gentlemen who said that 
 they were convinced that he had treasonable intentions 
 were impartial and proper jurymen ? They had avowed 
 their conviction as to these intentions in court ; that one 
 argument would apply to all ; and if the principle were 
 once fixed, it would not be necessary to renew it in the 
 case of each gentleman ; that they had entered into the 
 argument because they wished the principle to be settled, 
 and then it could be applied to the particular cases. 
 
 Mr. Hay. We wish the argument to proceed without 
 hearing ourselves grossly insulted ; without making ac- 
 cusations against us that are malicious and groundless. 
 We said nothing that could give offense to the feeling*
 
 428 TRIAL OF AARON BURR. 
 
 of any gentleman. The gentlemen can not say with 
 truth, that we wish to deprive them of the right of de- 
 fending their client. The charge is unjust. I wish him 
 to have a fair trial, and justice to be done with all my 
 heart ; but I feel myself hurt, and grossly insulted, when 
 the gentlemen on the other side charge me with feel- 
 ings that are disgraceful to humanity. I trust, therefore, 
 that the arguments will no longer be conducted with 
 such indecorum. 
 
 The "Chief Justice had hoped that no such allusions 
 would have been made ; that the government ought to 
 be treated with respect, and that there was a delicacy to 
 be observed on that subject, from which he hoped there 
 would be no departure hereafter. 
 
 Mr. Burr. I rose to stop the progress of such lan- 
 guage when up before. I had made sufficient apologies, 
 if any were necessary, for any expressions which had 
 been used, and I had hoped that no allusions would Have 
 been made to the subject. It will be recollected, that I 
 have constantly manifested my displeasure at such ex- 
 pressions. I have carefully avoided such myself, and 
 imposed similar restraints upon my counsel ; and urged 
 that the government should be treated with the utmost 
 delicacy, though there was great provocation from the 
 gentlemen on the part of the prosecution, which would 
 have justified harsh terms. I hope these things will cease, 
 On the part of my counsel, I am sure they will cease. 
 
 Mr. Martin. I have no wish to hurt the feelings of a 
 single individual, but they have no right to hurt our 
 feelings ; and when I am so often interrupted and 
 charged with wasting the public time, and the gentle- 
 men still persist in their observations, I can not repress 
 mine. 
 
 As to the point before the court, what I am about to 
 adduce will show unequivocally that these gentlemen are 
 not proper jurymen. The emphatic language of the 
 constitution is that jurors shall be free from all bias and 
 prejudice. The constitution of the United States 
 requires that every criminal shall be tried by an "impar- 
 tial jury ; " that is, a jury that must be perfectly indiffer- 
 ent, and have no prejudice whatever on their minds ; that 
 every juror shall receive his impressions from the evi-
 
 1NPANELING THE JURY. 429 
 
 dence which shall be adduced in legal form, and under 
 the sanction of an oath. But those gentlemen come with 
 minds already prepossessed against the prisoner, and it 
 will require stronger evidence to eradicate those previous 
 impressions ; whereas, according to the constitution, 
 there ought to be no impression against a criminal, 
 except what arises from the facts proved against him in 
 court, according to the rules of law on the subject. To 
 this effect, I will take the liberty of reading Reeves' 
 History of the English Law, vol. I, p. 320,, to show the 
 rigid impartiality required by the Law of England. [Here 
 Mr. Martin read it.] 
 
 Every objection that is valid against a juryman is 
 valid against a witness, but not vice versa. The credi- 
 bility of a witness may be questioned though he be 
 admitted to be sworn, but a juror must be free from 
 every objection ; exempt from everything that may pos- 
 sibly give a bias to his mind or judgment. He must have 
 no enmity against, or friendship with, the party whose 
 cause he is to try. That even a great or particular 
 familiarity, or being constantly at the same table with 
 him, will disqualify him from being a juror. See 2,d vol. 
 Reeves English Law, p. 446. The general principles 
 herein stated show how particularly cautious the law is 
 that jurors should in all cases be free from all impressions 
 and influence, and not liable to be suspected. 
 
 In confirmation of this doctrine, I will refer your 
 honors to Care's English Liberties, p. 245, a work of very 
 considerable merit. He states here the great benefits of 
 the trial by jury; that " no man's life shall be touched 
 for any crime whatsoever till found guilty on two trials; 
 that no person shall suffer death but by the verdicts of 
 twice twelve men against him, or two juries; one to find 
 the bill or charge ' to be true, and the other on 
 the merits, to decide on full and legal proof, adduced 
 on both sides, all of which jurors must be honest, sub- 
 stantial, impartial men." In page 248 he tells us what 
 he means by an impartial man : " that he ought to be 
 least suspicious, that is, to be indifferent as he stands 
 unsworn ; " that his mind should be free from every 
 cause of suspicion. In page 249 the author is still more 
 explicit. Among other qualities, he says, " that jurors
 
 430 TRIAL OF AARON BURR. 
 
 must be free of and from all manner of affections, rela- 
 tions, and prejudices. This is a general proposition 
 extending to all cases whatsoever, civil as well as crim- 
 inal ; and if a man to be a proper juror must be divested 
 of all affection for, and all relationship to, the parties in 
 a civil case, how much more essential is it that he should 
 be in this situation in a case of life and death ? He must 
 be also " free from all prejudices," and come into court 
 in that situation ; that all his impressions are to be 
 received from legal evidence, delivered in open court, 
 under the sanction of an oath. His mind must be totally 
 indifferent in every respect. As to the idea of a person 
 charged being guilty or innocent, it is one of the most 
 sacred as well as humane maxims of the law that it pre- 
 sumes every man to be innocent, till an impression by 
 the evidence is made on the minds of the jurors to 
 remove that presumption. I do not understand this 
 quartering and halving of prejudices and partialities. It 
 is not sufficient that one man should have only a quarter 
 of the prepossession of another ; or that this man should 
 only have one-half, or three-fifths, or four-sevenths, of 
 the prejudice of that; but the law requires that he shall 
 not be biased at all ; that he shall be perfectly impartial. 
 The constitution has secured to us a privilege so sacred 
 that no law nor this court of justice can take it from us. 
 Sir, so jealous were the citizens of the United States of 
 their rights that they were dissatisfied with the constitu- 
 tion in its original form, because it did not expressly 
 provide that there should be a trial of every offense 
 " by an impartial jury." They therefore chose to have 
 it secured by the constitution, so that there thould be 
 no possibility of being deprived of an " impartial jury- 
 trial." The eighth amendment of the constitution pro- 
 vides that " in all criminal prosecutions the accused shall 
 enjoy the right to a speedy and public trial by an impar- 
 tial jury of the State and district wherein the crime shall 
 have been committed." 
 
 This provision in the constitution which secures this 
 sacred right, is binding on every judge, sitting on the 
 trial of every criminal. It forbids him to force upon him 
 any juror that is not perfectly indifferent. Gentlemen 
 may say that we must take such men or have no trial at
 
 IMPANELING THE JURY. 431 
 
 all. Gentlemen do not understand the subject correctly. 
 They take it for granted that Mr. Burr must be tried at 
 all events, and hanged, if an impartial jury can not be had ! 
 But I contend that if an impartial jury can not be found 
 to try him, he can not be tried all ; because the constitu- 
 tion says that he " shall be tried by an impartial jury." 
 But I do not believe what has been said, that an impar- 
 tial jury can not be found in Virginia ! I have no doubt 
 that many impartial juries can be found in Virginia. The 
 plea of necessity of trial insisted on by the gentlemen is 
 not founded on fact. I can see no such necessity as to 
 render it compulsory on the court to try him in any 
 event, whether an impartial jury can be obtained or not ; 
 because the constitution, on the contrary, declares that 
 no person shall be tried till he can be tried " by an impar- 
 tial jury." But let us see what has been done in such 
 cases in that country from which we have derived our 
 system of laws. It is not thought necessary there that a 
 man shall be tried by a partial jury, rather than that he 
 should not be tried at all. 2d Mac Nally, p. 667, a trial 
 was put off on aft affidavit that the public mind was so 
 prejudiced by recent publications as to prevent a fair 
 trial ; because those publications had so poisoned the 
 public mind that a fair trial by an impartial jury could 
 not be obtained. To the same effect and in the same 
 page is the case of the King v. the Dean of St. Asaph, 
 and the case of the King v. Robinson, Brooks, and 
 others, where the court thought it correct to decide that 
 the trial should be postponed till another term, lest cer- 
 tain recent publications, giving an imperfect statement 
 of the evidence, should influence the public mind. If 
 such be the humanity of the law that it requires that 
 jurymen shall be selected from the public, who are with- 
 out bias, and persons were deemed improper jurymen in 
 that case on account of a trifling and temporary bias 
 produced by such publications, how much stronger is the 
 objection against a man being a juryman who has had a 
 bias on his mind for years and declared that bias? In 
 that case, there was propriety in putting off J:he trial, 
 because of the impossibility of selecting a proper jury 
 at that time, out of that public whose minds had been 
 poisoned by the publications.
 
 132 TRIAL OF AARON BURR. 
 
 On the present occasion let us examine the situation 
 of the gentlemen called to serve as a jury. They are to 
 determine on the guilt or innocence of the accused, aris- 
 ing from, and depending on, certain transactions in the 
 western country. Do they come hither with a bias, or 
 do they come perfectly indifferent as to the innocences 
 criminality of Mr. Burr? The crime consists in intention 
 and act. The intention constitutes the most important 
 part of the crime. The act of itself may be innocent; 
 but treasonable views or designs annex guilt to it. These 
 gentlemen say, " We are perfectly satisfied as to the 
 treasonable intentions, designs, and purposes of the 
 accused." To have "believed that his purposes were im- 
 moral or dangerous, would suffice to exclude them from 
 serving on the jury, because the court is to give a name 
 to these crimes ; but when they go so far as to assert that 
 his designs were treasonable, the objection against them 
 is stronger. When they come forward with a full con- 
 viction on their minds that he has been engaged in prac- 
 tices dangerous to the community, do they come for- 
 ward with impartial, unbiased minds? * Their minds are 
 already half made up, and that half the most material 
 part. Twenty or thirty men on Blannerhasset's island, 
 and eight or ten of them armed, may have been perfectly 
 innocent, as if they came together with an intention to 
 shoot game, or for any other lawful and innocent pur- 
 pose. The witnesses may tell them, " We have not a 
 thought that he has committed treason, or that his mind 
 had treasonable designs; we know of no evidence to 
 that effect." But what do these gentlemen say ? That 
 they have come to hear witnesses prove such and such acts, 
 for they have already settled the intention in their own 
 minds to be treasonable. What do the constitution and 
 common reason, and common justice require ? Cer- 
 tainly that a juryman must be free from impressions 
 both as to the intention of the accused, and as to the 
 act. The intention constitutes the most important part 
 of the crime; and their minds ought to be as free from 
 impressions as to the intention as they ought to be as to 
 the act. But it may be said that they do not consider 
 that he did the act at Blannerhasset's island ; but your 
 honor does know that it has been said, and it will be
 
 IMPANELING TH d JURY. 433 
 
 again said, that if the act be do-ie at the persuasion of 
 Mr. Burr, it must be considered as committed by him. 
 Let me familiarize this case with the common case of 
 burglary, which is the crime of breaking and entering a 
 house in the night time with an intention to steal. Sup- 
 pose a person is charged with the crime of burglary, and 
 a juryman called to act on his trial says, that he has his 
 mind perfectly made up that the person indicted in- 
 tended to steal ; but then he is not sure that he got 
 into the house. Then it is proved that he did enter the 
 house, and the only question is with what intent he did 
 enter the house? (because he may have gone in with a 
 mind perfectly innocent, without intending to take any- 
 thing.) Could such a juryman be truely said to be 
 impartial? t Most certainly he could not. When a 
 man is indicted for burglary, the juror to try him 
 must be as free from the belief that he intended to 
 commit burglary, as that he went into the house. He 
 must be free from every impression when he comes to 
 be sworn. These observations I have made to show, 
 that on principles of common law and justice, every jury- 
 man in every case, especially in criminal cases, ought to 
 be without any prejudice. How can they be said to be 
 free from prejudice who say, that they believe that Mr. 
 Burr had treasonable designs? Do they not come with 
 minds ready to listen to whatever may confirm his guilt? 
 and will they not listen with great reluctance to argu- 
 ments used to drive away their prejudices from their 
 minds? It is to be lamented, that the public mind is in 
 the state which gentlemen have described, but it certainly 
 is not so to the extent which is represented. I do not 
 consider the forty-eight gentlemen, who have been sum- 
 moned, as an accurate specimen of the people of Virginia. 
 To the honor of this populous state, I will say, that I 
 believe that a great many impartial juries might be se- 
 lected, and I should think it strange if one out of a hun- 
 dred had imbibed prejudices. It implies some degree of 
 malice in any man, judge or juryman, to suffer his mind 
 to be thus poisoned against a person accused, when the 
 law presumes his innocence. How came these impres- 
 sions to be on the public mind ? Did we busy ourselves 
 to mislead or influence it? Was not The Alexandria 
 28
 
 434 TRTAL OF AARON BURR. 
 
 Expositor and other papers under the influence of our 
 rulers at Washington, constantly occupied in throwing 
 out dark hints on this subject long before the proclama- 
 tion of the president appeared? Have not great pains 
 been taken by inflammatory publications to impress the 
 minds of the people with a belief of his guilt. Those 
 who have done it have to answer for it ; and if they 
 have created such a prejudice that Mr. Burr can not be 
 rightly tried, they alone are to blame. I am sure that 
 the respectable gentleman on the other side (though I 
 do not charge him with having done so designedly) has 
 contributed to increase this prejudice. Has he not 
 frequently declared himself satisfied of the guilt of Mr. 
 Burr? The zeal which he has manifested in the prose- 
 cution was well calculated to create prepossessions, as he 
 must be presumed to be well acquainted with the evi- 
 dence against him. When gentlemen who have set 
 their hearts on the success of the prosecution declare that 
 they have no doubt of his guilt, other people will be 
 misled by their declarations, and conclude that he is 
 guilty. I submit the case to the court, and have no 
 doubt those jurymen will be deemed improper to serve 
 on this jury, because the constitution requires that the 
 mind of a juror shall be as free from bias, as if he had 
 never heard anything of the cause before. Can the gen- 
 tlemen conscientiously say that they stand indifferent ? 
 Can the court say so ? But if they be excluded from 
 serving, it is not the court which says that they shall 
 not be sworn on this jury, but the constitution of our 
 country which prescribes that every person accused " shall 
 be tried by an impartial jury." 
 
 Mr. Botts observed that every crime consisted of 
 a great many constituent parts ; and that the question 
 was, when a crime was analyzed, and a juryman con- 
 fessed, that he had made up his mind on a number of 
 those component parts, and said that there were two or 
 three of those parts out of the multitude upon which he 
 had not committed himself, could such a man be regarded 
 as impartial in the subject he is to investigate? Is he, 
 said Mr. Botts, without bias on the question? Is he free 
 from prejudice? The man who has made up his mind 
 on part of the crime, is not without a bias and some
 
 1NPANELING THE JUR Y. 435 
 
 degree of predetermination. What portion of the crime 
 the intention may make, can not be exactly computed ; 
 but it is, at least, an important feature of it. Fix on 
 twelve jurors who have made up their minds as to the 
 intention, and you deprive us of half our defense. We 
 have a' right to be tried by a jury unprejudiced as to 
 every part of the crime. Mr. Burr has a right to insist 
 th:it he is not guilty either of the intention or of the act ; 
 and if there should be complete evidence of the one, yet 
 it will not suffice without full proof of the other. If you 
 fix on twelve jurors, who have made up their minds as 
 to the intention, and prove an act to them, they may find 
 a verdict of guilty ; when twelve jurors, who had not made 
 up their minds as to the intention, might be perfectly 
 satisfied that no crime had been committed, although an 
 act were proved to them ; because, without an intention, 
 there can be no guilt. With what face could Mr. Burr's 
 counsel stand before a jury, predetermined as to the inten- 
 tion, and urge on their minds an innocent intent? With 
 what face could we stand before a jury, who had made 
 up their minds as to the act, and insist that no act was 
 committed? It is of no sort of consequence, what desciip- 
 tion of intention should be associated with the act, aor 
 what act is to be associated with the intention : it is suffi- 
 cient that the intention is an ingredient of the crime. 
 Yesterday, when we took an exception to a juror because 
 he said that the accused ought to suffer punishment, he 
 was rejected, because his meaning might have been, and 
 probably was, that the accused deserved death, if he 
 ought to be punished at all. Could we offer any argu- 
 ment to the gentleman who had expressed this sentiment 
 to convince him that the prisoner ought not to suffer 
 any punishment ? There is no kind of question, but the 
 only inquiry with him would have been, what kind of 
 suffering he ought to be subjected to ? We should have 
 been precluded from investigating with any rational ex- 
 pectation of success, the general principles of innocence. 
 When the public mind is so infected with rancorous pre- 
 judices, it is necessary to select a jury entirely unbiased; 
 for he might as well be condemned at once, without a 
 trial, as to be tried by a jury prepossessed against him. 
 Mr. Burr said that he rose to narrow, and not to ex-
 
 436 TRIAL OF AARON BURR. 
 
 tend th argument : not to add anything more, but to 
 throw out of the discussion what had been accidentally 
 and irregularly introduced. The question, said Mr. Burr, 
 is not whether great prejudices exist in the public mind, or 
 what produced them, but whether these jurymen ought 
 "or ought not to be regarded as impartial ? I sincerely 
 hoped that this point would not have been introduced'. 
 Certain analogies have been taken from the crime of 
 treason to other crimes. I wish the discussion of these 
 analogies at present to be omitted ; for they may here- 
 after, though only discussed in a collateral manner, be 
 construed into opinions. The inquiry is, whether in 
 civil or criminal cases, a juryman who has made up his 
 mind on part of the subject-matttr in controversy, ought 
 to be considered as impartial? It is evident, however, 
 that no man be considered as impartial who has made up 
 his mind as to the intention. Suppose the case of slaying 
 a man; the act of killing may be differently construed. 
 It may be justifiable, excusable, or clergiable ; or it may 
 be murder. Suppose on the trial of the party accused 
 of the murder that several jurymen come forward and say, 
 " We have no doubt of the murderous intent of the 
 prisoner, but we do not know whether he killed the 
 deceased or not," would such jurymen be considered as 
 impartial, or be permitted to be sworn to try him ? 
 Would not the intention in that case constitute the prin- 
 cipal part of the offense ? But I hope that these public 
 impressions, and analogies from treason will not be drawn 
 again into this discussion. 
 
 Mr. Mac Rae. It is never my wish in any period of 
 all the various discussions which have taken place before 
 the court in this case, to travel out of the way for the 
 purpose of making any observations calculated to defend 
 a government, which in my opinion requires no defense, 
 or to say anything to wound the feelings of the prisoner. 
 It has been invariably my wish to confine myself to 
 those points only which were under consideration. I 
 have most studiously and constantly avoided making any 
 remarks to wound the feelings, or excite the resentment 
 of the opposite counsel. Frequent as have been the oc- 
 casions when I was tempted to deviate from this course, 
 and to follow the example set before me, I carefully
 
 IMPANELING THE JURY. 437 
 
 avoided availing myself of it, except on one occasion, 
 when the nature of the case was such that I could not 
 perform my duty without following the example, and re- 
 pelling an unmerited arid unprovoked attack. I will so 
 far respect the admonition of the court, that I will not 
 comment upon it, but will pursue the course that it may 
 think proper, and confine myself to the subject under 
 consideration. But I must at the same time be per- 
 mitted to remark that I shall not forever do this, if the 
 admonition of the court, reiterated over and over again, 
 will not be regarded by the gentlemen on the other side. 
 If they make undeserved attacks, I will retort them with 
 the force with which they ought to be retorted on the 
 quarter from which they come. This I will do in every 
 case, but more especially in cases of this description. It 
 will be unnecessary to state what my feelings and what 
 my wishes in this case are. But perhaps it may be a 
 duty which in some degree I owe to myself, after con- 
 sidering the quarter from whence the attack came, and 
 the manner in which it was made, to declare to this 
 court, to this people, and to the God of my being that I 
 have never felt that inhuman, that infamous, and worse 
 than diabolical disposition, to wish that the blood of the 
 prisoner, or of any other fellow-being, should be shed. 
 That man is a stranger to me, who thinks that I have 
 such a heart and disposition. I wish that the prisoner 
 may have a fair trial before an unprejudiced jury. I do 
 not wish that a single man should be impaneled on it, 
 who is not impartial. If there be a single individual on 
 this panel, who is not, within the precise meaning of the 
 constitution, impartial, and fit to decide between the 
 United States and Aaron Burr, I pray the court to reject 
 him. I would unite with the counsel of the accused for 
 the sake of the community and posterity, in praying, not 
 for the sake of justice to him only, but to every person 
 who may be in his situation in future, that such jurymen 
 may be excluded from serving on this jury. But if 
 nothing said by themselves, or by the witnesses called on 
 to show their incompetency, shall satisfy the court that 
 they are unfit to be jurors, I trust, that as they ought, 
 they will be admitted by the court. 
 1 It was unnecessary to read the authorities which the
 
 438 TRIAL OF AARON BURR. 
 
 gentleman adduced ; the principles therein stated, are 
 not controverted ; but we deny their application to the 
 case now before the court. If any of those gentlemen 
 whose case is now before the court, be partial or biased, 
 with respect to this cause, or have really an ill-will to the 
 party accused, then their case comes within the objection. 
 Is there one of these jurymen who feels an ill-will against 
 Aaron Burr ? Does any of them entertain a personal 
 prejudice against him? Is there one of them who says 
 that bis mind has received a bias on the question whether 
 he be guilty of treason or not ? There is 'nothing which 
 goes to justify the opinion that they have a settled bias, 
 on the question submitted to the court ; which is that 
 sort of prejudice which the law recognizes as a valid ob- 
 jection against the competency of a juryman. It is true, 
 that most of them say, that they have formed an opinion 
 as to his intentions ; but the question is, whether he has 
 committed treason or not ? And they have received no 
 information to enable them to form any opinion at all on 
 this question. Indeed, if I mistake not, some of them 
 have gone so far as to declare their opinion to be, that 
 the prisoner had never committed an overt act. Now, 
 what is the argument of gentlemen on this point? It is 
 this: that this crime is made up of several ingredients, as 
 intention and act ; and that having formed an opinion on 
 any one of these component parts disqualifies a man for 
 a juror, as much as if he had formed his opinion on the 
 whole. This does not appear to me to be sufficient to 
 produce the disqualification contended for. They must 
 go infinitely beyond this point ; as that they believe that 
 Aaron Burr had formed treasonable intentions, in con- 
 nection with individuals, who had committed an overt 
 act. Does any of these gentlemen say that his opinion 
 extended so far ? Those intentions may have related to 
 other acts than those charged in the indictment, to acts 
 committed out of the district, in some other state than 
 Virginia. According to my best recollection of their an- 
 swers, the treason of which they spoke, related to acts 
 intended to have been perpetrated, not in Virginia but in 
 a different state (as Tennessee or Kentuck}'). and which, 
 therefore, are not now before the court. Some of these 
 gentlemen show that they have adverted to this distinc-
 
 IMPANELING THE JURY. 439 
 
 tion, because they have referred to the opinion of one of 
 the judges now on the bench, formerly pronounced on 
 this point. It has been stated from the bench, that 
 these dangerous designs may have been entertained, but 
 that to constitute treason, they must have been matured 
 into acts. If it be not a bias in this court, if such a preju- 
 dice do not exist in the minds of the judges, why should 
 it exist in the minds of the jury ? They may have heard 
 the opinion of the court, that various criminal projects 
 may have been revolved in the minds of the accused, but 
 that this was not sufficient to constitute treason, without 
 the commission of an overt act ; and paying respect to 
 that opinion, they may have formed an opinion them- 
 selves, that there were treasonable intentions, but they 
 may have considered the rest of the opinion of the court, 
 that an act and an intention joined were necessary to 
 constitute treason, and that designs may have been 
 formed by a person who could not be charged with any 
 actual offense. With respect to the question, whether 
 the accused have conceived intentions, which have been 
 matured into treason by open acts, all of them have de- 
 clared, on that point, that they do not think that an overt 
 act has been committed. Suppose, then, that having 
 heard the opinion delivered by the court, they have, in 
 fact, adverted to the distinction, that the formation of 
 designs in the mind, without the commission of an overt 
 act, will not constitute or amount to treason, will they 
 not find a verdict of acquittal, if the necessary overt acts 
 be not legally proved before them ? If they declare that 
 they have no ill-will or personal hatred against him, will 
 the mere expression of an opinion, that he had enter- 
 tained treasonable designs, disqualify them from acting 
 as jurors? We wish, sir, that he may have a fair trial, 
 that he may be tried by persons as capable of trying him 
 impartially> as if they had never heard of the question 
 now before the court. In short, by such a jury as the 
 constitution of the United States has secured. I trust 
 it will never be said, that any of us wished to deprive 
 him of any privilege to which he is justly entitled. But 
 if these jurymen will declare, that they have formed no 
 opinion on the actual commission of the crime, that 
 they are unprejudiced and have no ill-will against
 
 440 TRIAL OF AARON BURR. 
 
 the accused, it does appear to me, and I trust that 
 it will also appear to the court, that they are competent 
 to serve on the jury who are to try the accused. 
 
 Mr. Hay. The opposite counsel reminded the court, 
 with a frequency that surprised me, that they were en- 
 titled to an impartial jury. Nothing is more true. By 
 the constitution of the United States, by the principles 
 of common law, common sense, and common justice, the 
 accused has a right to be tried by an impartial jury. 
 
 But a question occurs, about which he has not been 
 pleased to say a single word, Who is an impartial juror ? 
 This is a question which I conceive has already been de- 
 termined by the law. I wonder that the gentleman's 
 extensive learning has not enabled him to give a correct 
 exposition of it. I can not subscribe to his doctrine on 
 this point. Impartial they may be said to be, who en- 
 tertain tiie common sentiments and feelings of a great 
 majority of the people, and who are taken from the mass 
 of the community. According to my judgment, such a 
 jury may be said to be impartial. Who shall say that it 
 is not an impartial jury? Will this court undertake to 
 pronounce its opinion that the majority of this district 
 are unfit for jurors, and not to be trusted to decide on 
 plain facts ; or on the true construction of the circum- 
 stances and transactions in the west, within the meaning 
 of this part of the constitution ? I believe the court 
 would be very unwilling to say so of all the people of 
 this district. It would be to pronounce a libel on the 
 state. The majority would very truly return the com- 
 pliment, by saying, that the opinion was one which 
 ought not to have been given, and by a person not com- 
 petent to give it. " You, who censure us in this manner, 
 show the prejudices by which you are yourselves act- 
 uated." What say these jurymen? That they have at- 
 tended to newspaper publications, which have given 
 them information on a subject which has excited uni- 
 versal attention. Every man in the community has 
 formed some opinion on it. I will venture to say, that 
 there is not a man in Virginia, however humble or ob- 
 scure his situation, or supine his disposition, or however 
 much occupied in business, who has not taken some 
 opinion or impression on this subject, and communicated
 
 IMPANELING THE JURY. 441 
 
 it to others. But these things have been innocently 
 done, without any sentiment of ill-will to the accused. 
 The great majority of the people have received impres- 
 sions of those transactions from newspaper publications, 
 without any prejudice against, or even knowledge of the 
 accused. Is it reasonable, then, to suppose that the maj- 
 ority of the people, without any personal ill-will against 
 the accused, without even the least personal knowledge 
 of him, are by these general and slight impressions, ren- 
 dered incapable of deciding fairly and impartially? Can 
 it be reasonable, that the accused should have it in his 
 power to object to the great majority of the people, as 
 partial and incompetent, on such slight and trivial grounds 
 as these ? What is that impartiality which the law re- 
 quires in a juror? It is a disposition of mind to hear the 
 evidence on both sides, and decide thereon according 
 to the immutable principles of natural reason and justice. 
 To exclude from serving on his jury such an immense 
 majority of the people, on such slender grounds, would 
 probably secure impunity to the accused. There may 
 perchance be some ignorant and obscure individual, some 
 solitary hermit, shut up in the hollow of a tree, or in an 
 inaccessible cavern, secluded from all human concerns, 
 who has received no impression on this subject, because 
 the history of these transactions has never penetrated to 
 his solitude. But those who have intercourse with their 
 fellow-citizens, must have heard, in common with the 
 rest of the community, the many reports of a deep-laid 
 plot and conspiracy against the peace and union of these 
 states ; that the accused had formed some great ambitious 
 scheme for his own personal aggrandisement, to accom- 
 plish which, he felt no hesitation in hazarding, no re- 
 morse in producing, all the horrors of a civil war. We 
 are divided into parties who have different opinions on 
 political subjects. I do not say that they are exactly 
 arranged, or united to a man, as to this question ; but I 
 know that different sides have been taken : that every 
 man in this community has taken his side, and formed an 
 opinion either favorable or unfavorable on the subject. 
 But still the great majority of the people stand on ground 
 of perfect neutrality as to the actual guilt of Burr and 
 his associates. The impression whirh they may have re-
 
 442 TRIAL OF AARON BURR. 
 
 ceived from reports, and newspaper publications, will 
 vanish like air, as soon as they hear the evidence, on 
 which they will be sworn to decide. I think this is the 
 language of common sense, and that it must convince 
 the court, however it may be disregarded by the gentle- 
 man who began the arguments on this point. 
 
 He has produced some authorities from Reeves and 
 Mac Nally, which do not bear on the subject in the least 
 degree : but I shall cite two that do apply to this case. 
 The first was a decision in the case of Callender, of which, 
 however, I did not then, nor do I yet, approve. I do not 
 think that in Callender's case Judge Chase pronounced 
 the law correctly. I do not see any difference between 
 forming an opinion, and forming and expressing an opin- 
 ion. A juryman ought to be excluded from serving on 
 the jury, if he have formed an opinion, though he may 
 not have communicated it to any person. It is the for- 
 mation, and not the expression of his opinion, that indis- 
 poses him to attend to the evidence. However, it was 
 not my business then, nor is it now, to settle the law ; but 
 I thought it then settled. The question put to the jury- 
 men, was, " Have you formed and delivered an opinion 
 on the subject-matter of this indictment?" There was 
 nothing said as to men's impressions in relation to the 
 acts of the accused, or their indulging prejudices against 
 him. There was not a man among the jury who tried 
 him, who had not the strongest prejudice against him, for 
 his improper conduct ; and very justly. It was pro- 
 nounced to be the law, that it was a libel. I never heard 
 it controverted before these remarks ; but that is not 
 the question now, but a question which is general, indefi- 
 nite, and vague; a nice metaphysical disquisition, how 
 far a man's mind, by impressions founded on mere reports, 
 is rendered incompetent to decide impartially on legal 
 evidence ? The question ought to be decided by the 
 court, whether a juryman be in that state of neutrality 
 between the United States and a prisoner, which will 
 enable him to decide impartially. According to Callen- 
 der's .case, it was sufficient to establish the competency 
 of a juryman, if he had not formed and expressed an 
 opinion on the subject-matter of the indictment ; and, 
 according to the decision, all these gentlemen are admis-
 
 IMPANELING THE JURY. 443 
 
 sible, because none of them have formed, much less 
 formed and expressed, such an opinion. In 2 Hawkins, 
 ch. 43, sect. 29, on the subject of challenges, it is stated 
 to be law, " that it hath been adjudged to be no good 
 cause of challenge, that the juror hath found others guilty 
 on the same indictment ; for the indictment is in judg- 
 ment of law, severally against each defendant, for every 
 one must be convicted by particular evidence against 
 himself; " and in the 28th section, he says, that " it had 
 been allowed to be a good cause of challenge, on the part 
 of the prisoner, that a juror has declared his opinion be- 
 forehand, that the party is guilty or will be hanged, or 
 the like ; yet it hath been adjudged, that if it shall ap- 
 pear that the juror made such declaration from his knowl- 
 edge of the cause, and not out of any ill-will to the party, 
 it is no cause of challenge." Here it is decided that if a 
 juryman say that the party accused will be hanged, or is 
 guilty, not of the intention, but of the act, yet if he made 
 this declaration from his own knowledge of the cause, 
 and not from ill-will to the prisoner, he is a proper juror. 
 But these gentlemen have not declared as much; they 
 have not declared their belief that the accused is guilty 
 of the act, but have merely stated as the result of their 
 reflection on the transactions in the western country, 
 that he intended to commit the act. According to the 
 authority of this case, therefore, these gentlemen are 
 competent jurymen. I do not say that this is law posi- 
 tively, but I find it here written, and it appears to me to 
 be founded in good sense. According to the doctrine in 
 the other section just read, several men may be compre- 
 hended in the same indictment, all of whom may be 
 tried separately ; and the same juror who has found a ver- 
 dict against one of them, is competent to try another on 
 the same indictment. His former verdict is no cause of 
 challenge. But the evidence which is admissible against 
 one, may be so against the other. To have already de- 
 cided on that evidence, is to declare that the party is 
 guilty of the offense both as to intention and act ; and yet 
 this circumstance of having pronounced a verdict on 
 the same testimony, does not furnish grounds of chal- 
 lenge against him. Many more cases might be produced, 
 but these are sufficient to show that these are proper
 
 444 TRIAL OF AARON BURR. 
 
 jurymen, if they be not under the influence of malice or 
 ill-will against the accused, whatever general impressions 
 their minds may have received. I admit, that if any of 
 them had made up his mind that the accused was guilty 
 of treason, it would be a good cause of challenge ; but 
 that is not the case with any of them. Mr. Martin has 
 made a quotation from Mac Nally, to show that the 
 court would postpone a trial, because the public mind 
 had been improperly excited by recent inflammatory 
 publications, touching the cause depending before it. I 
 will only observe that if this were a motion to postpone 
 the trial, this argument might apply, if the facts of such 
 publications existed ; but have they manifested any dis- 
 position or wish to obtain a postponement of the trial till 
 another term ? Why, then, do they urge such an argu- 
 ment, while they fail to move for a postponement ? They 
 wish to avail themselves of a principle, without perform- 
 ing the act which would justify its application. But 
 another observation of Mr. Martin may deserve particu- 
 lar notice ; that it would be proper to postpone the 
 trial, till a fair and impartial jury could be had. 
 
 Here Mr. Martin and Mr. Hay differed as to the pre- 
 cise import of the terms which he had used, and Mr. Hay 
 proceeded. He stated that the community was divided 
 into parties ; that there was an immense preponderance 
 on one side ; but that both parties had ascribed certain 
 designs to Mr. Burr, and had taken certain impres- 
 sions ; that these were only the common sentiments and 
 feelings of the country ; and that to exclude from the 
 jury all those who had these sentiments and feelings, 
 would amount to a declaration, that the great majority 
 of the people ought not to be trusted with a decision, 
 which might possibly be equal to an acquittal. 
 
 Mr. Wirt. It is much to be wished in this case, and 
 in every case, that a jury could be found of those pure 
 materials which Mr. Martin has desired. He seems to 
 expect that, in every case, and more especially in 
 the important case which now occupies the attention of 
 the court, the jury should come without any impression, 
 with minds as pure as the unsoiled snow on Dian's lap. 
 But is this practicable? Does the experience of the 
 world justify the hope that such a jury can be found?
 
 IMPANELING THE JURY. 445 
 
 The case can not exist, and the law does not require it. 
 The authorities relied on by Mr. Martin are elementary 
 and abstract ; and are, I conceive, fiot to be trusted, 
 when a question of practice is to be decided by the court. 
 They deal in generals; and when they descend to par- 
 ticulars, they all express a distinct reference, and point 
 directly to the person of the accused. If these books 
 were fit to be trusted, and did not their generality ex- 
 clude them from familiar use, the language used in the 
 specification is clearly expressive of enmity or ill-will 
 against the accused. I beg leave to mention another au- 
 thority to show that these books are unfit to be trusted 
 as authority. In Reeves, it is stated that any friendship 
 for, or familiarity with the person accused, is a proper 
 ground of objection to a juror ; but these general phrases 
 are not sanctioned by practice. For in Tooke's trial, an 
 objection was made to John Thompson as a juror, be- 
 cause an intimacy of thirty-four years' continuance had 
 subsisted between him and Mr. Tooke; but the objection 
 was overruled by the judge. These two cases are contra- 
 dictory. It is important, in every case, that the princi- 
 ples of law should be fixed. It is important to the peo- 
 ple of every nation, that their rules of action should not 
 be continually floating on the waves of uncertainty, but 
 that they should be known and settled, in order that men 
 should know how to steer their course. I trust that they 
 will be always so in this country. Permit me to advert to 
 a decision in our own country ; the case of Callender. I 
 adduce it for the sole purpose of comparing it to the 
 doctrine now in discussion. When Mr. John Basset, one 
 of the jurymen, was called, he challenged himself, because 
 he had seen and read the book (The Prospect before Us) 
 for the publication of which he was prosecuted, and 
 made up his mind that it was a libel : but he had not 
 made up his mind as to Callender being the publisher of 
 the libel. His objection was overruled, and he was 
 sworn on the jury ; though he had made up his opinion, 
 that the publication was a libel, which I conceive to be 
 the principal point. He only did not know who was the 
 author. But what is the great question of libels in Eng- 
 land? Is it who is the author? Is it about the mere 
 fact of publication, that the brightest tears of eloquence
 
 446 TRIAL OF AARON BURR. 
 
 are shed ? The question in every case is, libel or no libel, 
 The inquiry always is, whether it be a libel or not ? The 
 fact of publication te a question of a comparatively trivial 
 nature. Then when Mr. Basset was admitted on the 
 jury, according to the idea of one of the counsel on the 
 other side, Callender was robbed of half of his defense as 
 to that juror ; for the great question had been previously 
 settled in his mind. The fact to be ascertained was un- 
 important. Apply the principle of this decision in that 
 case to this case. We will suppose it to be the fact, that 
 these jurymen may have said that the assemblage of 
 men on Blannerhasset's island was high treason in the 
 parties composing it; but they knew not, and this would 
 not prove, that Mr. Burr was there or connected with it. 
 Here the two cases would be very similar. 
 
 These gentlemen would have made up their minds 
 that the assemblage was treasonable. John Basset made 
 up his mind that the publication was a libel. The great 
 facts would be fixed in the minds of the jurors in both 
 cases, and nothing would remain, but to trace the facts 
 to the party accused. But the present case falls far 
 short of that. These gentlemen say that they have 
 taken up some impressions from newspaper publications 
 that Burr had treasonable designs ; but they have not 
 said that the assemblage on the island was treason, 
 which consists of intention and fact ; and if they had said 
 so, they would be good jurymen, according to Basset's 
 case. He had made up his mind on the great fact that 
 the book was a libel ; and in this supposed case, these 
 jurymen would have concluded that the act of meeting, 
 armed, on the island, was treason ; but as they have not 
 gone so far as Basset, and he was received as a juror, the 
 court, I presume, will receive them as jurors. In another 
 point of view, Callender's case was stronger than this. In 
 that case, there was no possibility of counteracting the 
 impression that Basset had of the fact, that the book was 
 a libel. His opinion was formed upon the book itself ; 
 and there was no other evidence to produce, to change 
 that opinion. But these gentlemen have seen nothing 
 but the statements in the newspapers. They have re- 
 ceived no such fixed impressions ; their conviction is 
 commensurate with the evidence. Thev say that their
 
 IMPANELING THE JURY, 447 
 
 conviction has gone as far as the depositions which have 
 been published seemed to justify, but not further ; that 
 they were willing to hear other evidence, and to retract 
 their opinions. But Basset's opinion was fixed, and ad- 
 mitted of no conflicting evidence. If,then, Mr. Burrwould 
 be stripped of one half of his defense by the admission of 
 these gentlemen on his jury, Callender was stripped of 
 much more than half of his defense by the reception of 
 Basset on his. 
 
 I said, when I first rose, that the kind of jury which 
 Mr. Martin contended for, could not exist. Necessity 
 has given the law in other cases ; and whenever that 
 necessity appears, submission to it must invariably fol- 
 low. Such a jury could not exist, unless it had fallen 
 from heaven. But this is not the only case in which a pure- 
 ly impartial jury could not possibly be obtained, from the 
 very nature of things. Consider the English rebellions 
 of the year 1715 and 1745. Recollect when the great 
 national question between the Pretender and the house 
 of Hanover, which occupied the throne, was so warmly 
 agitated. The people took up different sides of the 
 question, not only with zeal and ardor, but even with 
 phrenzy. Their gazettes and magazines were filled with 
 it. Every man in the nation was animated with the ut- 
 most enthusiasm, which carried him beyond the bounds 
 of reason and propriety. They not only wrote, but they 
 fought for it : and that in so little a kingdom, the 
 very clang and din of the battle of Culloden was heard 
 in every part of it. Was this a case in which an impar- 
 tial jury could have been expected? Could they find 
 any who had not formed an opinion on the cause of the 
 Pretender, and on the nature of the rebellion? Every 
 man in the kingdom had made up his mind on the great 
 facts; yet the rebels of the years 1715 and 1745 were 
 tried by parties who knew these facts, and hanged. 
 Those of the latter were tried, perhaps, by jurors who 
 had met and fought them on the plains of Culloden. Do 
 you believe that the question, whether they believed that 
 the pretender had an intention to seize the throne, was 
 put to those jurors who tried his adherents? His inten- 
 tion, and that of his followers, were facts of public-noto- 
 riety. The rule of Mr. Martin is a good rule, as it ex-
 
 448 TRIAL OF AARON BURR. 
 
 Ists in the mind of a good man, or perfect philosopher. 
 It is a good rule for Utopia, or for Arabia Happy, or as 
 a, standard of theoretic perfection. But on those who 
 have human passions, it is in vain to expect it to operate. 
 Look at the trials in the year 1794 of Tooke, Hardy, 
 Thelvvall, and others. Were the jurors who tried these 
 men entirely without impressions? Did the causes ot 
 their prosecution produce no excitement ? Look at the 
 trials in Ireland of men who fought the battle of Wex- 
 ford. Were they tried by men who were entirely indif- 
 ferent, who had received no impressions from the great 
 events in their country. Had these created no interest, 
 no feeling ? Thus it was in the case of Hamilton Rowan : 
 men who were at the very focus of public illumination on 
 that occasion, were to sit on his trial ! Could such men 
 have come into the jury-box, as if they had never seen the 
 books, nor heard of the causes on which the prosecutions 
 were founded, as if they had come from another planet? 
 No such thing could be rationally expected. You will 
 find that the principle, laid down by Hawkins, is correct : 
 " That if a juror have declared beforehand that the party 
 is guilty, or will be hanged, or the like, and made such a 
 declaration from his knowledge of the cause, and not out 
 of any ill-will to the party, it is no cause of challenge." 
 It is justified by the reason and experience of mankind. 
 Impressions from the public prints, unconnected with 
 any ill-will to the accused, can not therefore be a cause 
 of challenge. 
 
 From the plains of Culloden and Wexford, let us come 
 to our own country. There have been no battles in this 
 country lately ; but there has been a subject which has 
 agitated every part of the country, in which every citizen 
 must have felt a warm interest. A man, heretofore dis- 
 tinguished, has been charged in all the public prints with a 
 crime so destructive of the peace and happiness of this 
 country, that he who could peruse these prints for the 
 last twelve months with adamantine indifference ; he who 
 could read the affidavits of Generals Eaton and Wilkin- 
 son without some emotion, can not be a man. No man 
 could see these things without feeling. I put it to your 
 hearts to determine whether any man who has a soul 
 that could grace the bosom of a man, could do it. There
 
 IMPANELING THE JURY. 449 
 
 is not that base frigidity in the American character which 
 is insusceptible of impressions on subjects of great mo- 
 ment. Look at one of the very jurors whom the accused 
 has selected. No man acknowledges with more pleasure 
 than I do the correct conduct of that gentleman. I have 
 long known and respected him. No man can be more 
 conscientious. Yet he declares that, from the statements 
 in the newspapers, he has some impressions of the views 
 of the accused. Could less have been expected from any 
 man ? This was the source from whence his impressions 
 were derived ; and not hostility to the person of the pris- 
 oner himself. 
 
 In England, we see from the authority of Hawkins, 
 that if a person summoned as a juror, have declared 
 that the party accused is guilty, or will be hanged, and 
 made this declaration from his knowledge of the cause, 
 and not from ill-will to the party, it is- no cause of chal- 
 lenge ; and if he have found another man guilty under 
 the same indictment, it is no cause of challenge. As 
 this is the law, how can it be a cause of challenge, that 
 these jurymen have received some impressions from the 
 public prints ? It may perhaps be said, that a juror who* 
 had found another man guilty under the same-indictment, 
 must have made up his mind on the whole evidence in the 
 cause; and that therefore he ought not to be challenged 
 by another party prosecuted in that indictment. Noth- 
 ing can be more manifest than the absurdity of this 
 reasoning. It amounts to this: He is a good juryman, 
 if he have seen and heard the whole evidence ; but if he 
 have only heard some slight circumstances, a small por- 
 tion of the evidence, then he can not be admitted as'a 
 juryman ! Because his mind is locked up forever by his 
 former verdict, he is a good juror ; but a mere fleeting 
 impression disqualifies him entirely ! This, surely, is not 
 even the semblance of an argument. Take the other 
 ground mentioned by Hawkins, that " it is no cause of 
 challenge to a juryman, that he had declared from his 
 own knowledge, and not from ill-will to the prisoner, 
 that he is guilty, or will be hanged," and apply it to this 
 case. To have made such a declaration from his own 
 knowledge, means, that he made it on the evidence 
 of his own senses. As in the case of murder, suppose 
 28
 
 450 TRIAL OF AARON BURR. 
 
 a juryman had by accident seen the person accused 
 actually commit the murder, but has no ill-will against 
 him, he is a good juror ; because it is impossible to 
 change his opinion. But if a gentleman of respecta- 
 bility will say, that he has a slight impression on his 
 mind from mere reports, or newspaper statements, he is 
 not a good juror at all. Because a man's mind is locked 
 up against evidence and argument beyond the possibility 
 of persuasion he is an impartial juryman: yet he whose 
 mind has only received a trivial expression, and is open 
 to evidence and conviction, must be rejected as partial 
 and improper. This is the substance of their argument. 
 
 I trust that whether you take the authority of this 
 court, or the practice in England into, consideration, you 
 will find that these gentlemen, having no ill-will against 
 the accused, and but a slight impression relating to the 
 cause, and not to him personally, ought not to be rejected. 
 They have stated themselves, that they had but a slight 
 impression o-n their minds. If the question, therefore, 
 depended on the depth of their impressions, these gen- 
 tlemen could not be excluded. When a man, who has 
 read some reports in the newspapers, professes himself 
 ready to hear further evidence, his mind is open to con- 
 viction, he is a fair juror, and can not be challenged as 
 partial : for as to a slight impression, it was impossible 
 even to hear of treason against their country, without 
 some emotion. I trust, therefore, that these gentleman 
 will be considered as proper jurors. 
 
 Mr. Wickham spoke to the following effect : I will 
 endeavor to show that the observations of the gentle- 
 men on the other side, and their construction of the law, 
 are incorrect. Their whole arguments rest on the basis 
 of necessity; but the gentleman last up has placed it in 
 a greater variety of views. I heard him with great 
 pleasure. His eloquence, which is at all times pleasing, 
 was at this time particularly interesting; but he used so 
 many tropes, and scattered so many flowers, that he re- 
 minded me of a Roman epigram on a lady, who was so 
 completely enveloped in decorations, that she was the 
 smallest part of herself. It was precisely so with the 
 gentleman's argument. It was so perfectly ornamented 
 and covered with figures and graces, that it constituted
 
 2NPANELING THE JURY. 451 
 
 the least part of itself; and it was only by lifting a 
 flounce here, and a furbelow there, that you could dis- 
 cover the argument. What does he state? That from 
 necessity, and the nature of things, there can be no jury 
 obtained without some impressions. How does he 
 prove it ? The gentleman has hurried us to England 
 and the battle of Culloden, with as much ease as if he 
 had waved the wand of a magician, and told us, that the 
 din of arms wa3 so loud, that it might be heard six or 
 seven hundred miles ! He has compared the judicial de- 
 cisions in that country, at the period of the rebellion, to 
 the case now before this court, without having attended 
 to the natural and manifest distinction between them. 
 It was clear to every man in England, that there was a 
 rebellion in the country. An army traversing the coun- 
 try in military force and array, places taken, and battles 
 fought. Lords Balmerino, Kilmarnock, and Cromartie, 
 and many other men of distinction, were known to be 
 engaged in the cause of the Pretender, and concerned in 
 those transactions. Every man in the country could 
 reason upon the case ; the basis of his decision was a 
 chain of historical facts, known and recorded', which 
 could neither be distorted by prejudice, nor destroyed 
 by falsehood. How did the courts decide that there 
 was a jury to be found in England which could try the 
 prisoners impartially ? The existence of the rebellion 
 was an historical fact known to every man before the 
 trials; but whether the particular individuals accused 
 were actively concerned in it or not, depended on the 
 evidence against each of them. The case now before 
 the court would have been precisely similar, if it had 
 been founded on historical facts. If it had been estab- 
 lished that Mr. Burr, with twenty or thirty thousand 
 men, and a number of gun-boats, had descended the 
 Ohio; that he had taken New Orleans, had fought 
 several battles with General Wilkinson, and had been 
 brought before this court for trial, the jury would have 
 to decide, not upon their own prejudices, but on histori- 
 cal facts, and the evidence against each person accused. 
 But where are the established facts in this case ? The 
 president has declared that there is no sort of doubt of 
 his guilt. It is not pretended that he could know the
 
 452 TRIAL OF AARON BURR. 
 
 facts himself, and he is liable to the deception of others. 
 Is his word to be taken as evidence in a court of justice, 
 and that adduced not even on oath ? But General Wil- 
 kinson has said so also. But his credibility may be here- 
 after impeached ; he is only a witness to prove certain 
 facts; but does he say that Mr. Burr is guilty of trea- 
 son? The supreme court has decided that his evidence 
 was not relative to the charge of treason. This whole 
 tale, then, is referred to the affidavit of General Eaton, 
 an ex parte witness. It rests on that alone; of which I 
 will say, though we may not be disposed to assert, that 
 it is untrue, -yet that it must be admitted that his tale is 
 marvelous, and not reconcilable to itself. Is this accu- 
 sation, then, founded on historical facts? Is it apiece 
 of history that is known to every man in the country? 
 This story, which has excited so much alarm and in- 
 terest in every part of the United States, is reduced to 
 the testimony of a single witness, who tells a most won- 
 derful tale. How, then, can he draw a comparison be- 
 tween this case and that of the rebellions in England? 
 The gentleman certainly did not consider the cases well, 
 or he would not have thought of such a parallel. The 
 battle of Culloden, for example, was a matter of public 
 and universal notoriety ; it was known to every man, 
 woman, and child in England ; and it could have formed 
 no part of the inquiry, on the trial of the rebels, whether 
 such a battle had been fought or not ? 
 
 There is not a single deposition to prove that treason 
 has been committed. The president's letter though it 
 confidently ascribes guilt to Mr. Burr, does not say that 
 he was guilty of treason. If one of these jurymen be not 
 disqualified by a preconceived opinion of Mr. Burr's trea- 
 sonable intentions, the rule will apply to the whole jury; 
 and if one of those gentlemen who think he had treason- 
 able designs, can be sworn to try him, twelve of them 
 can. What, then, would be our situation as his counsel? 
 Twelve jurors are impaneled, all of whom believe him 
 guilty of treasonable intentions. The crime of treason 
 consists of intention and act. In what attitude should 
 we stand before such a jury, to vindicate the innocence 
 of Mr. Burr's intentions? What course could we take ? 
 Their minds would be satisfied already as to his inten-
 
 IMPANELING THE JURY. 453 
 
 tions; it would be in vain to urge evidence or authorities 
 to show that he had no treasonable designs. Would we 
 attempt to make an impression on such marble ? We 
 might as well abandon at once the cause of our client. 
 The jury would be made of such stubborn and impenetrable 
 materials, that he would be sure to be sacrificed. As an 
 aggravation of this evil, it is to be observed that their 
 belief respecting Mr. Burr's intentions, has an influence 
 and direct operation on the question, whether an act 
 have been perpetrated or not. They will listen more 
 attentively to evidence that will confirm, than to testi- 
 mony that will contradict it. Suppose there are two 
 witnesses, one who thinks there was an overt act com- 
 mitted, and another who thinks there was not ; the jury- 
 man who has made up his mind as to the intentions of 
 the accused, will very probably believe the testimony 
 which maintains the intention, and will not believe the 
 man who swears to the fact in opposition to the inten- 
 tion ; because the act is made more probable by the in- 
 tention, which is the first step towards it : but a juror 
 who had not believed that the accused had criminal 
 designs, would very probably not believe either of the 
 witnesses, as their testimony was contradictory, or might 
 believe him who swore that there was no overt act. I 
 insist that twelve jurors, with impressions fixed as to the 
 intention, though an honest, could not be an impartial 
 jury ; because the intention has a direct operation, not 
 on a part only, but on the whole cause ; it bears directly 
 on every point of the cause. That juror must be more 
 than man, who, believing the accused guilty as to 
 intention, will be able to stop at the point of sober 
 investigation, and not permit his judgment to be in- 
 fluenced by it with respect to the commission of an overt 
 act. The man whose belief is made up as to the inten- 
 tions of Mr. Burr, can not be said to be impartial on any 
 point in the cause. Let us suppose a very possible case : 
 that six jurors are impaneled, who say that they be- 
 lieve he had treasonable intentions, but they know noth- 
 ing of an overt act ; and six more are called up and sworn, 
 who admit that they have an impression as to an overt 
 act having been committed, but as to the intention know 
 nothing. Six have taken up one opinion and six another.
 
 454 TRIAL OF AARON B URR. 
 
 Their opinion, on the whole, is unfavorable to the pris- 
 oner. How could his counsel address them on either of 
 those points? If they address them on the intention, 
 six of them are adamant on that point ; and if they ad- 
 dress them on the other point, it will be in vain, because 
 six of them are equally obdurate. On either side they 
 would meet with prejudice and resistance. It would be 
 like the case mentioned in Tristram Shandy, of the ab- 
 bess and nun, where it was necessary to pronounce a 
 certain criminal word, to make their mules move with 
 their carriage ; it would have been a sin for either of 
 them to utter the entire word, but they divided it into 
 two parts; one articulated one part and the other the 
 other, and thus effected their purpose, and avoided all 
 the sin of the expression. One half of the jury think 
 the intention existed, the other think the fact was per- 
 petrated ; an'd by dividing the transgression between 
 them, and compromising the intention and act, they 
 'may find a verdict of guilty. Those who have made up 
 their minds as to the design, will readily concur with 
 those who think that the overt act is unquestionable ; 
 and those who think the overt act notorious, will require 
 but little persuasion to believe that the intent was crim- 
 inal. But on many occasions, there is no doubt but the 
 whole crime consists in the intention ; and the whole 
 inquiry is, whether there were a criminal intent or 
 not? 
 
 I will now proceed to answer the arguments of coun- 
 sel in their order. Mr. Mac Rae says that the standard 
 with respect to the competency of jurors, depends on 
 whether they have a personal prejudice or ill-will against 
 the accused or not? What is meant by the word per- 
 sonal ? Is it a dislike to the appearance, the counten- 
 ance, or features of a man ? If it depended on this, Mr. 
 Burr would stand a better chance than most of his coun- 
 sel ; perhaps than most men. But if you believe him 
 guilty of a crime, is it not prejudice against him ? Is it 
 not prejudice to entertain such a belief against any man? 
 The usual ground of prejudice against a man is, that he 
 is guilty of criminal conduct. 
 
 But it is said by Mr. Mac Rae, that it would be nec- 
 essary, in order to exclude them as jurors, that they
 
 IMPANELING THE JURY. 455 
 
 should have said that they thought Mr. Burr had been 
 guilty of treason in connection with Blannerhasset. 
 We have nothing to do with Blannerhasset. They 
 are not joined together in the indictment. The com- 
 plaint is not now before the court. Some of these gen- 
 tlemen say that they believe they intended to take New 
 Orleans. It should have been a joint indictment against 
 them ; and they could then know the charge in the in- 
 dictment, and meet it with the necessary defense ; but 
 there is nothing in it about New Orleans, and joint trea- 
 son with Blannerhasset. 
 
 But u Callender's case is directly in point, where Mr. 
 Basset was determined to be a proper juryman." What 
 was it ? Did he pronounce any opinion on the inten- 
 tion of Callender? He said the book was a libel. That 
 was not an opinion, but a fact. But did he say that 
 Callender was the author or publisher of it ? Suppose 
 he had been called on for a definition of sedition. 
 What would he have said ? Did he say that he had 
 made up his mind that Callender was guilty of intending 
 to publish a seditious libel? Callender was defended by 
 several learned counsel of this bar. Did they attempt 
 to deny that it was a libel ? Did Mr. Randolph, or 
 the other gentlemen who managed the impeachment 
 of Judge Chase, in the senate of the United States, 
 deny that it was a libel? It ought also to be recol- 
 lected that thisj very senate of the United States de- 
 cided by a majority of eighteen against sixteen, that the 
 decision of Judge Chase, in not rejecting Mr. Basset as 
 a juror, because he said that he had made up his mind 
 from the extracts said to be taken from the book, that 
 it was a libel, was illegal. Sixteen, out of thirty-four, 
 thought it correct, and eighteen thought it corrupt.* 
 This was the case, if I recollect right. I then thought, 
 and still think, the opinion which he gave was law. It 
 was palpable and manifest to every person that the book 
 was a libel; and the declaration of that fact is not like 
 imputing a criminal design to the party accused ; and, 
 
 * This was immediately discovered to be a mistake. The second ar- 
 ticle of the impeachment was for overruling Mr. Basset's objection. 
 On this article ten senators only voted guilty, and twenty-four not 
 
 guilty.
 
 456 TRIAL OF AARON BURR. 
 
 therefore, the admission of Mr. Basset as a juror, though 
 correct and proper, ought not to be considerad as a pre- 
 cedent for the admission of these gentlemen on this jury. 
 If these gentlemen came forward and gave a correct de- 
 finition of treason, they would be improper jurymen. 
 They ascribe such intentions to the accused as may sup- 
 port the charge of treason. 
 
 But these jurymen say that they think they can give 
 a fair verdict. I mean no reflection on the gentlemen, 
 by saying that they may be mistaken. I am cofident 
 they have no intentional prejudice. But what is preju- 
 dice? Do not most men believe their own opinions to 
 be correct? Is it easy for every man to discern and re- 
 tract his erroneous opinions? If a man were to go so 
 far as to say that he could conquer prejudice, still it 
 ought only to be admitted that he believes so ; the frailty 
 of human nature forbids complete confidence in such 
 cases; his belief ought not to be depended upon, how- 
 ever respectable he may be. 
 
 But Mr. Hay has given us a definition of an impartial 
 juryman, which neither Mr. Martin nor I would ever 
 have thought of. What was it? That the common sen- 
 timents and feelings of a majority of the people of any 
 country, form the criterion of impartiality and truth ! 
 Take this position to be correct, let this new principle be 
 adopted, and the study of the law will be rendered very 
 easy and short; and to some gentleme|i, very pleasant. 
 It would save a great deal of time and trouble. A stu- 
 dent, instead of poring over the black-letter in his own 
 closet, and wearying his faculties for years in search of 
 principles and scientific knowledge, need only go about 
 to barbacues, horse-races, cock-fighting, and other 
 public meetings and places of amusement, to learn the 
 common sense of mankind ! A lawyer would consult 
 his law books, but Mr. Hay would go about collecting 
 the sense of the nation. Mr. Wirt has given us another 
 and a better rule, to which most men would give the 
 preference. He has told us, that the principles of law 
 ought to be certain, and not continually floating on the 
 ocean of uncertainty. But he is contradicted by Mr. 
 Hay. He advises us to follow the principles of law, but 
 Mr. Hay prefers the popular opinion ; the sentiments of
 
 IMPANELING THE JURY. 457 
 
 a majority of the people to be ascertained, I presume, by 
 officers appointed to collect them in every district. 
 
 Mr. Hay denied that he expressed such a sentiment, and 
 insisted that his words and meaning were misrepresented. 
 
 Mr. Wickliam proceeded. The gentleman did say, that 
 an impartial juror was one who had the common senti- 
 ments of the mass or majority of the people. Compare 
 this sentiment with those of Hale, Hume, Robinson, and 
 other eminent writers, and see how very different they are. 
 I understood him distinctly, that impartiality in a juror, 
 depended on his concurrence vyith the public senti- 
 ments. That is the true meaning of what he said. I 
 follow it up to its consequences, and if the result be ab- 
 surd, he is not, for that reason, at liberty to deny his po- 
 sition. Is every man in the community to be consulted ? 
 Is there then to be an " appel nominel," as there was 
 in France, when the French people were asked, " Shall 
 Napoleon be emperor of the French?" The public 
 opinion can not be truely ascertained. I do not believe 
 that the opinion of the jurymen, whose case is under 
 consideration, is this public opinion which is so much re- 
 ferred to ; but if public opinion, and sentiment, and feel- 
 ing, were to be resorted to as the true test of .impartial- 
 ity, what would he do with the passions of the turbulent, 
 the lawless, and the violent? Has he any motive for es- 
 tablishing this public opinion as a rule of justice and fair- 
 ness? Has he been scattering and fomenting these pop- 
 ular prejudices, and spreading declarations of the guilt 
 of the accused all over the country ? He has repeatedly 
 declared that he has no doubt of his crime. I hope that 
 there is no concebtion between his criterion of impartial- 
 ity, and his frequent declarations of Mr. Burr's guilt. 
 Mr. Hay agrees, that if they attempted to make prose- 
 lytes, it would justify their rejection. Several of these 
 jurymen did acknowledge that they had publicly argued 
 to inculcate a belief of Mr. Burr's guilty designs, and 
 justified the measures adopted by the government 
 against him. On the gentleman's own admission, there- 
 fore, they are not proper jurors. I mean no imputation 
 against these gentlemen ; they had a conviction on their 
 own minds of his evil designs, and fchey wished to com- 
 munica e it to others ; they are to be respected because
 
 45 8 TRIAL OF AARON BURR. 
 
 they acted under a conviction of the truth. But this argu- 
 ment proves too much; that if every one of these jury- 
 men had declared that Mr. Burr was guilty of an act of 
 treason, it would make no difference, but they would all 
 be impartial jurymen ; because it happened to agree with 
 the public opinion. It would prove everything. It 
 might prove, that the sentiments of every man who did 
 not conform to the public opinion, when it was under a 
 different direction from what it is at present, were then 
 wrong; and that those who do not now subscribe to 
 what is called public opinion, are as culpable as those in 
 the minority were formerly; so that what is right one 
 day, may be wrong another. 
 
 The gentleman has candidly informed us, that the 
 country is divided into two classes ; and that every man 
 has taken his side of this question. I should hope that 
 the gentleman's position was not correct, at least, not in- 
 variably. If it were so, it would be unfavorable to truth 
 and justice. The majority always possess sovereign 
 power in the United States; but the majority change. 
 He who has had the happiness of thinking and acting 
 formerly with the great majority of the people of the 
 United States, finds himself now decidedly opposed by 
 such a majority. The public opinion is continually fluc- 
 tuating; and what was law under the administration of 
 John Adams, is not law under the administration of 
 Thomas Jefferson. What was public opinion then is 
 not public opinion now. In fact, it is impossible to know 
 what public opinion is. So that, according to the gen- 
 tleman's doctrine, the impartiality of a juror, instead of 
 being founded on correct, immutable, and permanent prin- 
 ciples, would be continually floating on the waves of un- 
 certainty ; an evil which is so much and so justly depre- 
 cated by his colleague. 
 
 But it is said, on the authority of Hawkins, that a 
 man may be a proper juror to try a person accused, al- 
 though he knows the fact on which the prosecution is 
 founded. Does any one of these gentlemen say that he 
 knows the fact? Not one of them pretends to such 
 knowledge. What, then, can be said of an authority that 
 has no application ?~ It is not necessary to acknowledge 
 or deny the validity of this authority.
 
 IMPANELING THE JURY. 459 
 
 But the gentleman says, " that it is impracticable, or 
 something approaching an impossibility, to obtain an 
 impartial jury, if the objection against these jurymen 
 shall prevail. We deny this impossibility ; we have al- 
 ready obtained four jurors, and have no doubt the rest 
 can easily be got. I will say nothing of the panel being 
 composed of men of whom so many had made up their 
 minds. I have no doubt that it was accidental, and that 
 the marshal intended to discharge his duty with fidelity 
 and propriety. 
 
 Mr. Wirt says that these elementary writers, Hale, 
 Hawkins, Reeves, and others, are not to be regarded ; 
 that they are not always the test of truth. It may be 
 admitted that they are not uniformly so, but it is cer- 
 tain that they are, and ought to be generally so consid- 
 ered. Some of these elementary authors, such as Lord 
 Coke, are of inestimable value. 
 
 As to the variance stated by Mr. Wirt, between one of 
 the elementary principles of Reeves and a case deter- 
 mined by Chief Justice Eyre, the case of Home Tooke a 
 reference to the report of that trial will show that that 
 case had not been accurately stated to this court. I have 
 too high a respect for Mr. Wirt, to say that he has will- 
 fully misrepresented the case ; but he has certainly mis- 
 understood the opinion of the court. Thompson, the 
 juryman, was not in court. He had exercised the dis- 
 cretion of absenting himself; and the excuse made for 
 him was, that he had been too long and too intimately 
 acquainted with the prisoner. Was it a question, whether 
 he were to be received as a juror or not? Was it a 
 question put to the prisoner in court, " Do you like 
 this man or not?" It was not. The chief justice said 
 that "it was no excuse." No excuse for what? . Not 
 from serving on the jury, but for not appearing at all in 
 court. The expression of Chief Justice Eyre was very 
 mild, in answer to the apology made for the absence of 
 the witness. 
 
 Mr. Wirt here interrupted Mr. Wickham, and said, 
 that he would submit it to any candid mind, which of 
 them gave the correct interpretation of the passage. He 
 read it and made some comments on it. 
 
 After some observations by both gentlemen, the Chief
 
 460 TRIAL OF AARON BURR. 
 
 Justice said that he had no doubt that each of the gen- 
 tlemen had stated what was the conviction of his own 
 mind; but that he thought it immaterial to the question 
 now in discussion, which of them was correct. 
 
 Mr. Wick/iam. I shall make one single remark. We 
 came here to try Mr. Burr on the law and the evidence, 
 and not by the public opinion. The life of no man 
 would be secure, if he were to be tried, not according to the 
 known rules and principles of law, but the caprice and 
 levity of what is deemed public opinion. A trial by a 
 prejudiced jury would be nothing but a mockery. What 
 was the meaning of the provision in'the constitution, but 
 to protect persons accused from the unjust violence of 
 popular opinion ? Was not the security of innocence 
 against unjust persecution, the object of the amendment 
 of the constitution? Was it not known to the framers 
 of our constitution, who had the volume of human na- 
 ture before them, that the time would at length arrive, 
 when some individual would be held up as a mark to 
 public indignation, and sacrificed as a victim to popular 
 phrenzy and political jealousy? Was it not to prevent 
 this, that the constitution originally forbade the legisla- 
 ture to change the law of treason, by fixing it within pre- 
 cise and well-defined limits ? Was it not for this cause, 
 that a subsequent amendment was introduced, declaring 
 that " in all criminal prosecutions the accused shall en- 
 joy the right to a speedy and public trial by an impartial 
 jury?" I contend that all these salutary precautions 
 have been taken to guard against the pernicious effects 
 of this public opinion, and that these gentlemen being 
 prejudiced against the accused, can not be considered as 
 impartial within the meaning of the constitution. 
 
 Mr. Randolph, at the request of the court, read Judge 
 Chase's answer to the second article of the impeachment 
 against him, which arraigns his decision in the case of 
 Basset. See appendix to the " Trial of Judge Chase," 
 pages 19, 20, and 21. 
 
 Mr. Randopk then observed that he had not intended 
 to say anything on the subject now discussed, because 
 he expected that objections would have been made to par- 
 ticular individuals only; but that he had since seen, that 
 a. most serious blow was meditated at the whole system
 
 IMPANELING THE JURY. 461 
 
 of jury trial. For, said Mr. Randolph, whether accident 
 or Heaven have given us this boon, it is our duty to pre- 
 serve pure and perfect, and transmit unimpaired to pos- 
 terity, this only palladium against oppression. Vain will 
 be all this parade about the trial by jury, if a judge will 
 calmly sit on the bench and connive at its violation. If 
 the courts do not defend this sacred right, can it be said 
 that any man's life is safe ? The trial by jury is not a 
 beneficial reality, but a mere fiction of law. Away with 
 justice ; away with courts; tell me not that I am safe in 
 my own habitation, if a doctrine like this be to prevail. 
 It is a mockery, sir, to talk of the benefits of the trial by 
 jury, if men whose minds are impressed with prejudices 
 against a person accused, shall decide his fate ! Can they 
 be impartial, who on a charge consisting of several points, 
 have made up their minds against him on all, except a 
 little fragment ? Would it be conformable to the equal 
 administration of justice to force such a jury on him ? 
 
 Analogies have been stated between other crimes and 
 the charge now before the court. Other gentlemen have 
 quoted the cases of murder and burglary. To these I 
 shall add the crime of uttering false money, knowing it 
 to be false. If a man brought forward as a juror on the 
 trial of a person charged with this offense, were to state 
 that he knew not whether the accused passed the money 
 or not, but that he was certain he must have known it 
 to be false, would he not be rejected as an incompetent 
 juror ? 
 
 But we are told, on the authority of Hawkins, ch. 
 43, sec. 28, that by the law of England it has been ad- 
 judged that " if a juror has declared beforehand that the 
 party is guilty, or will be hanged, or the like, it is a good 
 cause of challenge ; but if the juror made this declara- 
 tion from the knowledge of the cause, and not out of 
 any ill-will to the party, it is no cause of challenge ; " 
 and in section 29 " that it hath been adjudged to be no 
 good cause of challenge, that the juror hath found others 
 guilty on the same indictment." 
 
 Sir, does not this doctrine strike your mind with as- 
 tonishment ? Not if you advert to the reference made 
 in support of it. He has taken a posterior doctrine in 
 preference to an anterior ; so that it would seem that
 
 162 TRIAL OF AARON BURR. 
 
 the latter had been a revocation of the former. But ex- 
 amine it. What does he refer to? To the Year Books 
 in the time of Henry VII. when liberty had not been 
 established in England. This very Hawkins, in whose 
 bloody doctrine confidence is now placed, instead of ad- 
 vocating the more liberal doctrines of his own day, on 
 the subject of juries, refers to the reign of the Tudors, 
 when not a spark of liberty existed. Were he correct 
 in his assertion that this was the law of England, what 
 influence ought it to have on the practice in this coun- 
 try, where the terms of the constitution are so explicit 
 and imperative, that the accused shall enjoy the right to 
 a speedy and public trial by an impartial jury? Will 
 our courts subscribe to his inferences? He had advanced 
 a contrary doctrine in a preceding section. Will you 
 say that he shall be justified in supporting and drawing 
 contradictory principles and conclusions? If he main- 
 tain positions which are perfectly inconsistent, ought 
 they not to be tried by a critical examination of the au- 
 thorities to which he refers? and if the court find that 
 his assertions are not fairly deducible from the authors 
 relied on, will they not put him aside and declare that 
 he has no authority on this point? If the gentleman 
 who quoted him had looked at the 2/th section of the 
 same chapter, he would have found all the doctrines on 
 which he commented so fully, entirely destroyed. He 
 there says that " this exception against a juror, that he 
 hath found an indictment against the party for the same 
 cause, hath been adjudged good ; not only upon the 
 trial of such indictment, but also upon the trial of an- 
 other indictment or action, wherein the same matter is 
 either in question, or happens to be material, though 
 not directly in issue." So that wherever it is the same 
 question on which he decided in a former indictment, or 
 happens to be a material point, he is to be excluded. 
 Is it not all-important what the intention is? Is it not 
 a material point ? According to this section, if it be a 
 material point, he is ^o be excluded as a juror, because 
 he had made up his mind before on the same subject. It 
 is not merely that if he decided on the whole, but if he 
 have only decided a material point of the same cause, 
 he is incapacitated from serving as a juror.
 
 IMPANELING THE JURY. 463 
 
 Mr. Wickham has anticipated me in showing the ef- 
 fect of different jurors acting on a conviction of different 
 parts of the guilt; that one juror having formed his opin- 
 ion on one point, and another on another, they may 
 compromise, till by mutual complacency and acquies- 
 cence they make the accused the victim by a verdict of 
 condemnation. 
 
 I will make one observation on the case of Home 
 Tooke, to show that Thompson did not attend the 
 trial, and that the construction which gentlemen put on 
 it is incorrect. If Thompson had been present, the law 
 applying to the case was different from what they con- 
 tend it to be. It is said that a friendship or intimacy 
 with a party in a suit is not a cause of exception to a 
 witness, though it always is to a juror. Some books say 
 that if a juror be returned by a party, he is disqualified 
 from serving. The law with respect to the admission or 
 exclusion of a juryman, must vary according to the cir- 
 cumstances, and the nature of the influence which a 
 party in a cause has over his mind. They suppose the 
 question before the judge to have been, " Shall he be ex- 
 cused from serving as a juror or not ?" It was not so. It 
 was whethef he should be excused for non-attendance? 
 A mere acquaintance with another for thirty-four years, 
 does not exempt a man from being on a jury to try 
 that other ; but if the intimacy and friendship be so 
 great as to create an influence over him, he would be 
 rejected of course. 
 
 I shall not detain the court any longer, but shall con- 
 clude with a hope that you will preserve the purity of 
 jury-trial from violation ; that you will take more than 
 common pains to preserve it free and unfettered. I ap- 
 peal to the volume of human nature ; I appeal to the 
 human heart. I could appeal to Mr. Hay's great tri- 
 bunal itself, to determine whether there ever were a man 
 who could dispassionately and impartially try a cause, 
 one half of which he had already prejudged ? 
 
 Mr. Martin then observed that in Tooke's case no 
 challenge was stated to have been made to Thompson 
 the juror, by either the king or the prisoner ; and of course 
 the question could not have occurred, whether he should 
 be excused from serving on the jury.
 
 464 TRIAL OF AARON BURR. 
 
 The Chief Justice then delivered the following op- 
 inion : 
 
 The great value of the trial by jury, certainly consists 
 in its fairness and impartiality. Those who most prize 
 the institution, prize it because it furnishes a tribunal 
 which maybe expected to be uninfluenced by any undue 
 bias of the mind. 
 
 I have always conceived, and still conceive, an impar- 
 tial jury as required by the common law, and as secured 
 by the constitution, must be composed of men who will 
 fairly hear the testomony which may be offered to them, 
 and bring in their verdict according to that testimony, and 
 according to the law arising on it. This is not to be 
 expected, certainly the law does not expect it, where the 
 jurors, before they hear the testimony, have deliberately 
 formed and delivered an opinion that the person whom 
 they are to try is guilty or innocent of the charge alleged 
 against him. 
 
 The jury should enter upon the trial with minds open 
 to those impressions which the testimony and the law 
 of the case ought to make, not with those preconceived 
 opinions which will resist those impressions. 
 
 All the provisions of the law are calculated to obtain 
 this end. Why is it that the most distant relative of a 
 party can not serve upon his jury ? Certainly the single 
 circumstance of relationship, taken in itself, unconnected 
 with its consequences, would furnish no objection. The 
 real reason of the rule is that the law suspects the rela- 
 tive of partiality ; suspects his mind to be under a bias 
 which will prevent his fairly hearing and fairly deciding 
 on the testimony which may be offered to him. The 
 end to be obtained is an impartial jury; to secure this 
 end, a man is prohibited from serving on it whose con- 
 nection with a party is such as to induce a suspicion of 
 partiality. The relationship may be remote ; the person 
 may never have seen the party ; he may declare that he 
 feels no prejudice in the case, and yet the law cautiously 
 incapacitates him from serving on the jury, because it 
 suspects prejudice ; because in general persons in a simi- 
 lar situation would feel prejudice. 
 
 It would be strange if the law were chargeable with 
 the inconsistency of thus carefully protecting the end
 
 IMPANELING THE JURY, 465 
 
 from being defeated by particular means, and leaving it 
 to be defeated by other means. It would be strange if 
 the law would be so solicitous to secure a fair trial as to 
 exclude a distant unknown relative from the jury, and 
 yet be totally regardless of those in whose minds feelings 
 existed much more unfavorable to an impartial decision 
 of the case. 
 
 It is admitted that where there are strong personal 
 prejudices, the person entertaining them is incapacitated 
 as a juror ; but it is denied that fixed opinions respect- 
 ing his guilt constitutes a similar incapacity. 
 
 Why do personal prejudices constitute a just cause of 
 challenge? Solely because the individual who is under 
 their influence is presumed to have a bias on his mind 
 which will prevent an impartial decision of the case 
 according to the testimony. He may declare that not- 
 withstanding these prejudices he is determined to listen 
 to the evidence and be governed by it ; but the law will 
 not trust him. 
 
 Is there less reason to suspect him who has prejudged 
 the case, and has deliberately formed and delivered an 
 opinion upon it? Such a person may believe that he will 
 be regulated by testimony, but the law suspects him, 
 and certainly not without reason. He will listen with 
 more favor to that testimony which confirms, than to 
 that which would change his opinion; it is not to be ex- 
 pected that he will weigh evidence or argument as fairly 
 as a man whose judgment is not made up in the case. 
 
 It is for this reason that a juror who has once ren- 
 dered a verdict in a case, or who has been sworn on a jury 
 which has been divided, can not again be sworn in the 
 same case. He is not suspected of personal prejudices, 
 but he has formed and delivered an opinion, and is there- 
 fore deemed unfit to be a juror in the cause. 
 
 Were it possible to obtain a jury without any prepos- 
 sessions whatever, respecting the guilt or innocence of the 
 accused, it would be extremely desirable to obtain such 
 a jury; feut this is perhaps impossible, and therefore will 
 not be required. The opinion which has been avowed 
 by the court is, that light impressions which may fairly 
 be supposed to yield to the testimony that may be 
 offered ; which may leave the mind open to a fair consid- 
 30
 
 466 TRIAL OF AARON BURR. 
 
 eration of that testimony, constitute no sufficient objec- 
 tion to a juror ; but that those strong and deep impress- 
 ions, which will close the mind against the testimony 
 that may be offered in opposition to them which will 
 combat that testimony and resist its force, do constitute 
 a sufficient objection to him. Those who try the impar- 
 tiality of a juror, ought to test him by this rule. They 
 ought to hear the statement made by himself or given 
 by others, and conscientiously determine, according to 
 their best judgment, whether in general men under such 
 circumstances ought to'be considered as capable of hear- 
 ing fairly, and of deciding impartially, on the testimony 
 which may be offered to them ; or as possessing minds in 
 a situation to struggle against the conviction which that 
 testimony might be calculated to produce ? The court 
 has considered those who have deliberately formed and 
 delivered an opinion on the guilt of th % e prisoner, as not 
 being in a state of mind fairly to weigh the testimony, 
 and therefore as being disqualified to serve as jurors in 
 the case. 
 
 This much has been said relative to the opinion de- 
 livered yesterday, because the argument of to-day appears 
 to arraign that opinion, and because it seems closely con- 
 nected with the point which is now to be decided. 
 
 The question now to be decided is, whether an opinion 
 formed and delivered, not upon the full case, but upon 
 an essential part of it, not that the prisoner is absolutely 
 guilty of the whole crime charged in the indictment, but 
 .that he is guilty in some of those great points which con- 
 stitute it, do also disqualify a man in the sense of the law 
 and of the constitution from being an impartial juror? 
 This question was adjourned yesterday for argument, and 
 for further consideration. 
 
 It would seem to the court that to say that any man who 
 had formed an opinion on any fact conducive to the final 
 decision of the case, would therefore be considered as dis- 
 qualified from serving on the jury, would exclude intelli- 
 gent and observing men whose minds were really in a situa- 
 tion to decide upon the whole case according to the testi- 
 mony, and would perhaps be applying the letter of the rule 
 requiring an impartial jury with a strictness which is not 
 necessary for the preservation of the rule itself. But if
 
 IMPANELING THE JURY, 467 
 
 the opinion formed be on a point so essential as to go 
 far towards a decision of the whole case, and to have a 
 real influence on the verdict to be rendered, the distinc- 
 tion between a person who has formed such an opinion, 
 and one who has in his mind decided the whole case, 
 appears too slight to furnish the court with solid ground 
 fur distinguishing between them. The question must 
 always depend on the strength and nature of the opinion 
 which has been formed. 
 
 In the case now under consideration the court would 
 perhaps not consider it as a sufficient objection to a juror 
 that he did believe and had said that the prisoner at a 
 time considerably anterior to the fact charged in the in- 
 dictment, entertained treasonable designs against the 
 United States. He may have formed this opinion and 
 be undecided on the question whether those designs 
 were abandoned or prosecuted up to the time when the 
 indictment charges the overt act to have been commit- 
 ted. On this point his mind may be open to the testi- 
 mony, although it would be desirable that no juror 
 should have formed and delivered such an opinion, yet 
 the court is inclined to think it would not constitute 
 sufficient cause of challenge. But if the juror have 
 made up and declared the opinion that to the time when 
 the fact laid in the indictment is said to have been com- 
 mitted, the prisoner was prosecuting the treasonable 
 design with which he is charged, the court considers the 
 opinion as furnishing just cause of challenge, and can 
 not view the juror who has formed and delivered it as 
 impartial, in the legal and constitutional sense of that 
 term. 
 
 The cases put by way of illustration appear to the 
 court to be strongly applicable to that under considera- 
 tion. They are those of burglary, of homicide, and of 
 passing counterfeit money, knowing it to be counterfeit ; 
 cases in which the intention and the fact combine to 
 constitute the crime. 
 
 If, in case of homicide, where the fact of killing was 
 admitted or was doubtful, a juror should have made up 
 and delivered the opinion that, though uninformed rela- 
 tive to the fact of killing, he was confident as to the 
 malice ; he was confident that the prisoner had deliber-
 
 468 TRIAL OF AARON BURR. 
 
 ately formed the intention of murdering the deceased, 
 and was prosecuting that intention up to the time of his 
 death ; or if on the charge of passing counterfeit bank 
 notes, knowing them to be counterfeit, the juror had 
 declared that, though uncertain as to the fact of passing 
 the notes, he was confident that the prisoner knew them 
 to be counterfeit, few would think such a person suffi- 
 ciently impartial to try the cause according to testimony. 
 The court considers these cases as strikingly analogous. 
 
 It has been insisted that in Callender's case an opinion 
 was given different from that which is now delivered. 
 
 I acknowledge that I had not recollected that case 
 accurately. I had thought that Mr. Basset had stated 
 himself to have read the book charged as a libel, and to 
 have formed the opinion that the publication was a libel. 
 I find by a reference to the case itself that I was mis- 
 taken ; that Mr. Basset had not read the book, and had 
 only said that if it were such a book as it had been rep- 
 resented to him, he had no doubt of its being a libel. 
 This was. going no further than Mr. Morris had gone, the 
 challenge against whom has been overruled. Mr. Morris 
 had frequently declared that if the allegations against 
 the prisoner were true, he was guilty, and Mr. Morris 
 was determined to be an impartial juror. 
 
 With respect to the general question, put in Callender's 
 case, the court considers it as the same with the gen- 
 eral question put in this case. It was, " Have you made 
 up and delivered the opinion, that the prisoner is guilty 
 or innocent of the charge laid in the indictment ?" That 
 is in substance, " Have you made up and delivered the 
 opinion that the prisoner has been guilty of publishing a 
 false, wicked, and malicious libel, which subjects him to 
 pnnishment, under the act of congress, on which he is 
 indicted?" The same question is now substantially put. 
 Explanatory questions are now put when they are neces- 
 sary ; and certainly explanatory questions might have 
 been put in Callender's case, had they been necessary. 
 
 Had the case of Mr. Basset even been such as I thought 
 it, had he read " The Prospect Before Us," and thought 
 it a libel without deciding who was its author, he would 
 have gone no further than to have formed an opinion, 
 that certain allegations were libelous, which is not dis-
 
 IMPANELING THE JURY. 469 
 
 similar to the opinion, that certain acts amount to trea- 
 son. If, for example, a juror had said, that levying an 
 army for the purpose of subverting the government of 
 the United States by force, and arraying that army in a 
 warlike manner, amount to treason, no person could sup- 
 pose him on that account, unfit to serve on the jury. 
 The opinion would be one in which all must concur; and 
 so was the opinion that " The Prospect Before Us " was 
 a libel. Without determining whether the case put by 
 Hawkins, b. 2, ch. 43, sec. 28, be law or not, it is suffi- 
 cient to observe that this case is totally different. The 
 opinion which is there declared to constitute no cause of 
 challenge is one formed by the juror on his own knowl- 
 edge ; in this case, the opinion is formed on report and 
 newspaper publications. 
 
 The argument drawn from the situation of England 
 during the rebellions of 1715 and 1745, with respect to 
 certain prominent characters, whose situation made it a 
 matter of universal notoriety, that they were the objects 
 of the law, is founded entirely on the absolute necessity 
 of the case ; and the total and obvious impossibility of 
 obtaining a jury whose minds were not already made 
 up. Where this necessity exists, the rule, perhaps, 
 must bend to it, but .the rule will bend no further than 
 is required by actual necessity. The court can not be- 
 lieve that at present the necessity does exist. The cases 
 bear no resemblance to each other. There has not been 
 such open notorious war as to force conviction on every 
 bosom respecting the fact and the intention. It is be- 
 lieved that a jury may be obtained composed of men, 
 who, whatever their general impressions may be, have 
 not deliberately formed and delivered an opinion respect- 
 ing the guilt or innocence of the accused. 
 
 In reflecting on this subject, which I have done very 
 seriously since the adjournment of yesterday, my mind 
 has been forcibly impressed by contemplating the ques- 
 tion precisely in its reverse. If, instead of a panel com- 
 posed of gentlemen who had almost unanimously formed, 
 and publicly delivered an opinion that the prisoner was 
 guilty, the marshal had returned one composed of per- 
 sons who had openly and publicly maintained his inno- 
 cence ; who had insisted, that notwithstanding all the
 
 470 TRIAL OF AARON BURR. 
 
 testimony in possession of the public, they had no doubt 
 that his designs were perfectly innocent ; who had been 
 engaged in repeated, open, and animated altercation to 
 prove him innocent, and that his objects were entirely 
 opposite to those with which he was charged ; would 
 such men be proper and impartial jurors ? I can not 
 believe they would be thought so. I am confident I 
 should not think them so. I can not declare a juror to 
 be impartial who has advanced opinions against the pris- 
 oner which would be cause of challenge if advanced in 
 his favor. 
 
 The opinion of the court is, that to have made up and 
 delivered the opinion that the prisoner entertained the 
 treasonable designs with which he is charged, and that 
 he retained those designs, and was prosecuting them 
 when the act charged in the indictment is alleged to have 
 been committed is good cause of challenge. 
 
 The suspended jurymen were then called. John H. 
 Upshaw was asked by the court whether he conceived 
 that the prisoner had pursued his treasonable designs to 
 the time charged in the indictment. Mr. Upshaw 
 answered in the affirmative. And the Chief Justice 
 observed that he was not qualified to serve as a juryman. 
 
 J. Bowe, Miles Selden, Lewis Truehart, William Yan- 
 cey, Thomas Prosser, Nathaniel Selden, John W. Ellis, 
 Armistead T. Mason, and Dabney Minor were succes- 
 sively set aside, after having been further interrogated ; 
 because having formed an opinion as to the criminal in- 
 tentions of the accused, they came within the principle 
 of exclusion just established by the court. 
 
 Mr. Hay then moved the court to award a new venire, 
 to consist of a sufficient number to secure a certainty of 
 supplying the deficient jurymen. He thought, and 
 referred to the authority of Hawkins in support of his 
 opinion, that the "tales" might exceed the number of 
 the original panel. He supposed that one hundred and 
 fifty would not be too few. Were it not for the expense 
 he would move for five hundred ; that every man in the 
 community who had read and believed General Eaton's 
 deposition, must believe that the accused had treasonable 
 intentions; that as so much difficulty had already occur- 
 red in obtaining only four jurors, he was very solicitous
 
 IMPANELING THE JURY. 471 
 
 that a sufficient number should be directed to be sum- 
 moned at once. 
 
 Mr. Burr said that he was sorry that such inferences 
 had been made ; that he thought a different conclusion 
 ought to be drawn from the experience already had ; 
 that a very great majority of the forty-eight first sum- 
 moned had publicly and frequently declared the most 
 injurious opinions respecting his intentions ; but when it 
 should be manifest that the officer of this court was 
 really disposed to seek proper jurymen, the number 
 could easily be completed. 
 
 Mr. Wirt hoped that when insinuations were thrown 
 out against the marshal of this court, a man of as respect- 
 able a character as any in the state, he might be called 
 into court to justify himself. 
 
 Mr. Wick ham objected to his panel ; that it contained 
 too many members of assembly and candidates for pub- 
 lic favor and office ; that the marshal should have 
 selected the jury from those who were less in the habit 
 of expressing their political opinions than those gentle- 
 men ; for that, however respectable they might be, the 
 frequent and public discussion of their opinions' had a 
 tendency to create an involuntary bias on their minds. 
 
 Mr. Botts said that it ought not to be understood that 
 the motives of the marshal were to be questioned ; that 
 he was a respectable man, who certainly meant to act 
 faithfully and conscientiously. 
 
 Mr. Wirt appealed to the panel itself as the best 
 proof of the intelligence and integrity of those who had 
 been selected ; that they were as respectable men as any 
 in the whole community; that it had been announced 
 from the bench itself, that some abstruse and complicated 
 doctrines of treason were to be investigated during the 
 trial ; that it was therefore natural that the marshal 
 should have looked out for the most enlightened men 
 and that the selection should have comprehended some 
 of those very persons whom the people had before 
 chosen for the management of their public concerns ; 
 but as only four jurors were obtained out of the forty- 
 eight, such a "tales" should be awarded as would 
 be certainly sufficient to produce the remaining eight 
 jurors.
 
 472 TRIAL OF AARON BURR. 
 
 The Chief Justice stated that the difficulty of getting 
 jurors was now in some measure removed, as the opinion 
 of the court was known ; that the marshal would not 
 summon a man whose opinions he might have previously 
 understood, although he ought not to interrogate him 
 on the subject ; that he would have a good reason for 
 not placing on the panel any man who should inform 
 him that his opinions were strongly in conflict with the 
 test established by the court. 
 
 After some desultory conversation, the court awarded 
 a panel of forty-eight, and adjourned till Thursday. 
 
 THURSDAY, August isth, 1807. 
 
 As soon as the court met, Mr. Burr observed, that 
 just before coming into court, he had received a copy of 
 the panel last awarded ; that is was defective in not hav- 
 ing the places of residence annexed to the names of the 
 jurors ; that he should, perhaps, require till the day after 
 to-morrow to examine it, which was a less time than the 
 law allowed him for that purpose. 
 
 Some conversation ensued respecting the subp&na 
 duces tecum, when Mr. Hay stated that he had found 
 General Eaton's letter among certain papers transmitted 
 by Mr. Rodney, and had filed it with the clerk; that he 
 had not found among them General Wilkinson's letter 
 of the 2ist October, but would seek for it. 
 
 Three of the jury summoned on the second venire 
 were discharged by the court : viz., General Pegrom, be- 
 cause he was then necessarily engaged in military busi- 
 ness, in giving the necessary orders to the officers of 
 his brigade, to get in readiness its due proportion of this 
 state's quota of troops required by the president's pro- 
 clamation, pursuant to the act of congress. Mr. Lewis, 
 because he owned no freehold in the State of Virginia ; 
 and Mr. Moncure, on accouut of his indisposition. 
 
 It was understood that the marshal should summon 
 three substitutes ; and that the prisoner should accept 
 them. So that the venire was still to consist of forty- 
 eight. 
 
 The court then adjourned till Saturday.
 
 IMPANELING THE JURY. 473 
 
 SATURDAY, August isth, 1807. 
 
 Present, Chief Justice Marshall ; Judge Griffin, ab- 
 sent. 
 
 The jurymen summoned by the marshal were severally 
 called, and answered to their names in the following or- 
 der, except seven absentees. 
 
 Jacob Michaux, of Powhattan ; William Randolph, of 
 Surry; John Edmunds, of Sussex ; George Minge, of 
 Charles City ; William L. Morton, of Charlotte; Chris- 
 topher Anthony, of Goochland ; John Darricot, of Hano- 
 ver ; Washington Truehart, of Louisa ; Martin Smith, 
 of Prince Edward ; Benjamin Tate, of City of Richmond ; 
 Christopher Tomkins, of do. ; Benjamin Branch of Din- 
 widdie ; Thomas Branch, of Chesterfield ; James Shep- 
 pard, of City of Richmond ; Gabriel Ralston, of do. ; 
 Micajah Davis, of Bedford ; Reuben Blakey, of Henrico ; 
 Miles Selden, of Sussex ; Walter Blunt, of do. ; Richard 
 N. Thweatt, of Petersburg ; John Fitzgerald, of Notto- 
 way ; Robert M'Kim, of City of Richmond ; Benjamin 
 Graves, of Chesterfield ; William M'Kim, of City of 
 Richmond ; Robert Hyde of do. ; Thomas Miller, of 
 Powhattan ; Thomas Branch, of Chesterfield ; Robert 
 Goode, of do. ; Henry Randolph, of do. ; Miles Botts, of 
 do. ; Henry Bridgewater of do. ; Edward Hallam, of 
 City of Richmond ; Anderson Barret, of do. ; Henry E. 
 Coleman, of Halifax ; Edmund Bailey, of City of Rich- 
 mond ; Holder Hudgins, of Matthews; William H. 
 Hudgins, of do. ; John Price, of Henrico ; Isham God- 
 win of do. ; William S. Smith, of do. : George Blakey, of 
 do. ; Gray Carrol, of Isle of Wight ; Isaac Medley, of 
 Halifax; Richard Curd, of Henrico; Edward Munford, 
 of Powhattan ; Samuel Allen, of Buckingham ; John M. 
 Sheppard, of Hanover; John Curd, of Goochland. Of 
 whom there were seven absent. 
 
 On motion of Mr. Randolph, Mr. Benjamin Tate was 
 excused from serving on the jury, on account of his bad 
 state of health. Henry Randolph wished to be dis- 
 charged, because he was engaged in collecting the public 
 revenue. The court would not, however, admit the 
 validity of the excuse.
 
 474 TRIAL OF AARON BURR. 
 
 Mr. Burr then addressed the court, and observed that 
 the panel was.now reduced to forty ; and as it would be 
 exceedingly disagreeable for him to exercise the privilege 
 of making peremptory challenges, to which he was enti- 
 tled, he would lay a proposition before the opposite 
 counsel which would prevent this necessity, and would 
 save one or two hours that might be otherwise unpleas- 
 antly spent. He would select eight out of the whole 
 venire, and they might be immediately sworn, and im- 
 paneled on the jury. 
 
 The Chief Justice said that if no objection were made 
 it might be done, and that they might be placed at the 
 head of the panel. 
 
 Mr. Hay observed that there could be no utility in 
 objecting to it, as the prisoner could challenge peremp- 
 torily, and that he had no objection to this arrangement, 
 as it would be easy for him to examine the qualifications 
 of the eight who were selected, when they were once 
 known. 
 
 William S. Smith then requested to be excused, on 
 account of his indisposition. 
 
 Mr. Burr observed that Mr. Smith was one of those 
 whom he had selected ; but he would be sorry to impose 
 such a burden upon any invalid. Mr. Smith was dis- 
 charged. 
 
 When Christopher Anthony was called, he observed to 
 the court that he had uttered some expressions since he 
 came to town which he had been told would certainly 
 disqualify him from serving, according to the rules said 
 to have been laid down by the court. On being inter- 
 rogated as to what words he had spoken, 
 
 Mr. Burr said perhaps the words were used through 
 levity. Do you think they would be sufficient to warp 
 your judgment? 
 
 Answer. No. 
 
 Mr. Burr. Then, sir, you are not disqualified. 
 
 Mr. Mac Rae. State the tenor of those expressions. 
 
 Anthony. When I first arrived here I met with an in- 
 timate friend, to whom I observed that I had come to 
 town with a hope of being placed on this jury, and if I 
 were, I would hang Mr. Burr at once without further in- 
 quiry.
 
 IMPANELING THE JURY. 475 
 
 Mr. Mac Rae. Did you say so, knowing that such ex- 
 pressions would disqualify you ? 
 
 Answer. I did not ; for I never expected to be put 
 on this panel. 
 
 Question. Were you serious ? 
 
 Answer. Far from it. I spoke in the utmost spirit 
 of levity. 
 
 Question. Have you been in the habit of reading the 
 newspapers? 
 
 Answer. I have. 
 
 Mr. Mac Rae proceeded to make further inquiry of 
 him. He asked him whether he had read the depositions 
 of Generals Wilkinson and Eaton. He answered in the 
 affirmative. He then asked him whether those deposi- 
 tions had made no impression upon his mind? Hereupon 
 both Mr. Burr and Mr. Martin objected to this inquiry 
 as improper. 
 
 Mr. Mac Rae contended that this examination was in 
 vindication of the rights of the United States, and per- 
 fectly proper and correct, and was no more than had been 
 done repeatedly by the prisoner. 
 
 Mr. Martin. You have no right to disqualify any jury- 
 man for us. 
 
 Chief Justice. -Certainly the counsel for the United 
 States may challenge for cause. 
 
 Mr. Mac Rae. We are entitled to the same rights 
 which the opposite counsel have exercised as to the for- 
 mer venire. When the jurymen were successively called 
 before the court, did not the opposite counsel in every 
 case challenge for cause ? Did not the prisoner make 
 some general observations that were intended for the 
 ears of the jury, in which he spoke of his right of chal- 
 lenge, and requested every juryman who was conscious 
 of prejudice to object himself? Did they not, in several 
 cases, without exercising the right of challenge, previ- 
 ously inquire of the jurymen whether they had no 
 declarations to make? Did not the counsel for the pros- 
 ecution suggest some doubts about the propriety of this 
 course ? and did not the prisoner reply that no juryman 
 ought to lock up in his own bosom the prejudices which 
 he had conceived, and that he ought to declare himself? 
 Did not Mr. Botts frequently interrogate the jurymen
 
 476 TRIAL OF AARON BURR, 
 
 whether they had nothing to state? Mr. J. Baker's case 
 will be particularly recollected; for that gentleman posi- 
 tively replied that he had no observations to make, until 
 he had been challenged ; and not until this step had been 
 taken, did any declarations fall from Mr. Baker. We 
 wish to pursue the same course now that was adopted 
 on that occasion. We wish to challenge no juryman for 
 cause until he have previously made declarations of 
 his state of mind. The same justice is due to the 
 United States that was awarded to the prisoner; and 
 they have the same right to know whether a juryman be 
 as perfectly impartial in relation to the prosecution, as 
 to the prisoner. As to the jurors themselves, they would 
 certainly be willing to give all the information in their 
 power. 
 
 Mr. Hay was willing to take the persons selected ; for 
 he entertained no doubt of the integrity of the gentle- 
 men who were summoned. He was willing to take them 
 provided they should be asked by the bench whether 
 they were conscious of any cause which should disqualify 
 them from serving. If they themselves were satisfied, 
 he should be also satisfied. No man on this pa-nel who 
 had definitely made up his mind, would conscientiously 
 think to lay his hand on the book and solemnly avow 
 himself an impartial and qualified juryman. 
 
 The Chief Justice understood, then, that these selected 
 eight, were to pass without challenge, unless they chal- 
 lenged themselves. If the court were required to say, as 
 seemed to be the wish of the prosecution, that any im- 
 pressions, however slight, were sufficient cause for chal- 
 lenge, he would ask where they could obtain a jury? 
 The United States had precisely the same rights as the 
 prisoner had, and were entitled to make the same chal- 
 lenges for good cause. He then addressed those eight 
 jurymen who were placed at the head of the panel, thus : 
 
 " Gentlemen, if you have made up and expressed any 
 opinion, either for or against the accused, you ought to 
 express it." 
 
 Mr. Burr. The law presumes every man to be inno- 
 cent, until he has been proved to be guilty. According 
 to the rules of law, it is therefore the duty of every citi- 
 zen who serves on this jury, to hold himself completely
 
 IMPANELING THE JURY. 477 
 
 unbiased ; it is no disqualification, then, for a man to 
 corne forward and declare that he believes me to be in- 
 nocent. 
 
 Chief Justice. The law certainly presumes every man 
 to be innocent, till the contrary be proved ; but if a jury- 
 man give an opinion in favor of the prisoner, he must be 
 rejected. 
 
 When Christopher Anthony was called to the book, he 
 stated that he was in court the other day, when the first 
 venire was investigated ; that it would be extremely un- 
 pleasant to serve on the jury ; and that his general opin- 
 ions had been precisely the same that had disqualified 
 (as he understood) several other gentlemen. Mr. An- 
 thony's objections were overruled. 
 
 John M. Sheppard. I too feel myself disqualified for 
 passing impartially between the United States and 
 Aaron Burr. From the documents that I have seen, 
 particularly the depositions of Generals Wilkinson and 
 Eaton, I have believed, and do still believe, that his in- 
 tentions were hostile to the peace and safety of the 
 United States; in short, that he had intended to sub- 
 vert the government of the United States. It would be 
 inflicting a wound on my own bosom, to be compelled 
 to serve under my present impressions. Mr. Sheppard 
 observed, that considerations of a private nature had 
 also borne upon his mind : for he had a child at home, 
 extremely sick. 
 
 Mr. Burr. Notwithstanding Mr. Sheppard's impres- 
 sions, I could rely upon his integrity and impartiality. 
 As to his private considerations, I do not wish wantonly 
 to wound his feelings. I must request him, therefore, to 
 sit down "for a moment, until we shall ascertain whether 
 we can make a jury without him. 
 
 Mr. Hay. Has the court understood the extent of 
 Mr. Sheppard's declarations? 
 
 Chief Justice. If the prisoner's counsel waive the 
 right of challenge, there is an end of it. 
 
 James Sheppard was then called ; who made no further 
 declarations. 
 
 Reuben Blakey. I have made up no opinions either 
 way, positively, on this subject. 
 
 Doctor John Fitzgerald. It is incumbent on me to
 
 478 TRIAL OF AARON BURR. 
 
 state to the court, that I have formed and delivered an 
 opinion unfavorable to Mr. Burr. My opinion has been 
 founded upon the depositions of Generals Eaton and 
 Wilkinson, and other newspaper publications ; and it is, 
 that Mr. Burr's intentions were hostile and treasonable 
 against the United States. On which account, I am 
 very unwilling to serve, lest I should possess that bias 
 upon my mind which is unbecoming a juryman. Mr. 
 Fitzgerald was requested to sit down for a few moments. 
 
 Miles Bott. From the affidavits of Generals Wilkinson 
 and Eaton, my opinion has been completely made up for 
 several months past. 
 
 Mr. Martin. I suppose you have only taken up a pre- 
 judice, on the supposition that the facts stated were 
 true. 
 
 Mr. Bott. I have gone as far as to declare, that Mr. 
 Burr ought to be hanged. 
 
 Mr. Burr. Do you think that such declarations would 
 now influence your judgment? Would not the evi- 
 dence alter your opinion? 
 
 Answer. Human nature is very frail ; I know that the 
 evidence ought, but it might or might not influence me. 
 I have expressed myself in this manner, perhaps, within 
 a fortnight ; and I do not consider myself a proper jury- 
 man. 
 
 Mr. Burr. It will be seen, either that I am under the 
 necessity of taking men in some degree 'prejudiced 
 against me, or of having another venire. I am unwilling 
 to submit to the further delay of other " tales," and I 
 must therefore encounter the consequences. I will take 
 Mr. Bott, under the belief that he will do me justice. 
 
 Four jurymen then having been selected, three were 
 sworn. Mr. C. Anthony affirmed. 
 
 When Henry E. Coleman was called, he stated that 
 he had conceived and expressed an opinion, that the de- 
 signs of Mr. Burr were always enveloped in mystery, and 
 inimical to the United States ; and when informed by 
 the public prints, that he was descending the river with 
 an armed force, he had felt as every friend of his country 
 ought to feel. 
 
 Mr. Burr. If, sir, you have completely prejudged my 
 case
 
 IMPANELING THE JURY. 479 
 
 Mr. Coleman. I have not. I have not seen the evi- 
 dence. 
 
 Mr. Burr. That is enough, sir. You are elected. 
 
 Mr. Hay then suggested to the court the propriety of 
 not swearing all the jury this day; as it would subject 
 them to the inconvenience of an unnecessary confine- 
 ment in their own room to-morrow (Sunday). Would 
 it not be better for Mr. Marshall (the clerk) to swear 
 three only out of the remaining four? The court might 
 then impanel the whole on Monday, and proceed imme- 
 diately to business. 
 
 Mr. Burr had no objections to this measure ; but 
 hoped that the court would enjoin them not to hold any 
 conversations on the subject of the trial. 
 
 John Curd, upon being called, stated that he had no 
 prejudices for or against the prisoner ; but that he was 
 bound in candor to inform the court that he was afflicted 
 by a disorder (a palpitation of the heart) which was ir- 
 regular in its attacks, but was sometimes very sudden 
 and violent, and rendered him entirely incapable of busi- 
 ness ; and if he were sworn on the jury, it might inter- 
 rupt and delay the progress of the cause. He was ex- 
 cused. 
 
 Isham Godwin had formed and declared a uniform 
 opinion of Mr. Burr's guilt. If he were impaneled, he 
 should be under a strong impression that Mr. Burr was 
 guilty of treason. Suspended. 
 
 Samuel Allen had for several months made up an 
 opinion unfavorable to the prisoner. Suspended. 
 
 Benjamin Graves had not formed an opinion ; and gave 
 a long history of his domestic and family engagements, 
 to excuse himself from serving. He was asked whether he 
 could not make some arrangements of this business, be- 
 tween this time and Monday, calculated to remove all 
 the inconvenience of his serving ? Mr. Graves could not 
 positively say. 
 
 Mr. Burr then observed that the two jurors who had 
 been selected might be sworn ; the other two might 
 be selected on Monday. And Messrs. Coleman and 
 Graves were accordingly sworn. 
 
 Mr. Burr hoped that the marshal would direct all the 
 necessary preparations to be made for the accommoda-
 
 480 TRIAL OF AARON BURR. 
 
 tion of the jury, who would be confined to their own 
 chamber after Monday. 
 
 Colonel Thomas Branch was then excused from serv- 
 ing, because he was engaged in military business. 
 
 The Chief Justice requested the jury, and the re- 
 maining members of the venire, to attend on Monday, 
 at twelve o'clock ; and enjoined them to hold, in the 
 meantime, no communication on this subject with any 
 person. 
 
 Mr. Hay stated that he was satisfied from some ex- 
 pressions which he had heard from Mr. Munford of 
 Powhattan, at the moment of his summons, that the 
 prisoner would himself object to him. 
 
 Mr. Burr was satisfied with the attorney's word ; and 
 Mr. Munford was accordingly discharged. 
 
 Mr. Burr was sorry to be importunate ; but he was 
 under the necessity of mentioning once more the letter 
 of the 2ist October. He wished to know whether the 
 attorney had yet found it amongst his papers, or 
 whether he could point to any other means of obtain- 
 ing it. 
 
 Mr. Hay had examined two bundles of papers trans- 
 mitted to him by Mr. Rodney, but he had not found it. 
 There were other papers which he had yet to examine. 
 He had, however, a copy of the original letter. 
 
 Mr. Burr. Where is this copy from ? From Wash- 
 ington, or from General Wilkinson ? 
 
 Mr. Hay. It is from General Wilkinson. He has, 
 however, written it from the original. 
 
 Mr. Burr. I shall not accept of his copy ; but I will 
 state this proposition to the attorney. If he do not find 
 this letter by Monday, will he consent that I obtain a 
 subp&na duces tecum? 
 
 Mr. Hay. I have no objection. 
 
 Chief Justice. I snppose an order may be made to 
 issue a subpana duces tecum addressed to the attorney- 
 general of the United States, in case the letter be not 
 found. 
 
 Mr. Hay. I have no objection. 
 
 A desultory conversation ensued between Messrs. Hay 
 and Botts, on the arraignment of H. Blannerhassett. Mr. 
 Hay was averse to interrupting the jury after it had once
 
 IMPANELING THE JURY. 481 
 
 been impaneled for the trial of Mr. Burr; he was there- 
 fore anxious to have Blannerhassett immediately ar- 
 raigned, and if possible, to have some day fixed for his 
 trial. 
 
 Mr. Botts did not think it possible for the court to fix 
 on a particular time for his trial, or for the attorney to 
 furnish any means for calculating it. Mr. Blannerhassett 
 was not prepared for his trial ; but he was then prepar- 
 ing a brief for the information of his counsel, which 
 might enable them to give a definitive answer on this sub- 
 ject. 
 
 Mr. Hay was willing to grant them any accommodation 
 they might require. At all events, the court would only 
 have occasion to meet one hour sooner on some day, 
 to arrange it. 
 
 Mr. Botts promised that he would notify the attorney 
 some day in the next week, for this purpose. 
 
 MONDAY, August i/th, 1807. 
 
 Charles Lee, Esq., appeared as counsel for the prisoner. 
 
 Doctor Bennett, of Mason county, a witness on behalf 
 of the United States, was called and recognized. 
 
 Mr. Hay stated some little difficulty which had oc- 
 curred between Mr. Botts and himself. He had fur- 
 nished the prisoner with a list of the names of such wit- 
 nesses, with their places of residence, as had come to his 
 knowledge. He had likewise proposed, and Mr. Botts 
 had consented that all such witnesses should be exam- 
 ined, whose names should be furnished to the prisoner 
 before the commencement of the trial. He had furnished 
 the names of three on Saturday, viz., Messrs. Neil, 
 Goodwin, and Jones ; which Mr. Botts did not think 
 ought to be accepted, because they were not furnished 
 previous to the trial. For his own part, he did not think 
 that the trial could be said to have commenced before 
 the jury were sworn and impaneled ; the prisoner might 
 at any time before the jury were sworn, move for, and 
 obtain a continuance of the cause, if he could satisfy the 
 court that he was entitled to it. 
 
 Mr. Botts said that he had no doubt Mr. Hay 
 thought that he had stated facts to the court relative to
 
 482 TRIAL OF AARON BURR. 
 
 their supposed agreement ; that, however, he was mis- 
 taken, and he mentioned some circumstances to convince 
 him that he was so ; but, as there had been a mistake, 
 he would, as a matter of voluntary favor and grace, 
 agree to the introduction of those three witnesses. 
 
 Mr. Hay solemnly expressed his belief in the accu- 
 racy of his statement ; but as he was at liberty to intro- 
 duce these three witnesses, he would let the subject rest 
 where it was. 
 
 The names of the selected jurors and of the venire 
 were then called over. After which, John M. Sheppard 
 and Richard Curd were selected to complete the panel, 
 and sworn. 
 
 The following is, therefore, a complete list of the petit 
 jury : 
 
 Edward Carrington, Reuben Blakey, 
 
 David Lambert, Benjamin Graves, 
 
 Richard E. Parker, Miles Bott, 
 
 Hugh Mercer, Henry E. Coleman, 
 
 Christopher Anthony, John M. Sheppard, 
 
 James Sheppard, Richard Curd. 
 
 Proclamation then having been made in due form, 
 the prisoner standing up, the clerk addressed the jury in 
 the usual form, and read the indictment in the words fol- 
 lowing : 
 
 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 Uniied States to disturb; and to stir, move and excite insurrection, rebel- 
 lion 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 bv the name of Blannerhassett's island, in the county of
 
 INDICTMENT. 483 
 
 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 re- 
 bellion against the said United States ; and in order to fulfill 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 to- 
 gether, 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 aforesaid, at the island aforesaid, com- 
 monly 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 the congress of the said United States in such case made and pro- 
 vided. 
 
 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 Sates, 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 eleventh day ofj)ecember, 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 com- 
 pass, imagine and intend to raise and levy war, insurrection and rebellion 
 against the said United States; and in order to fulfill 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 Vir- 
 ginia aforesaid, and within the jurisdiction of this cburt, 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
 
 484 TRIAL OF AARC.N BURR. 
 
 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 offen- 
 sive as defensive, being then and there unlawfully, maliciously and traito- 
 rously assembled and gathered together, did falsely and traitorously assem- 
 ble and join themselves together against the said United States ; and then 
 and there with force and arms did falsely and traitorously and in a war- 
 like 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 afore- 
 said, 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 assem- 
 bled, and armed and arranged in manner aforesaid, most wickedly, mali- 
 ciously and traitorously did ordain, prepare and levy war against the said 
 United States ; and further to fulfill and carry into effect the said traitorous 
 compassings, imaginations and intentions of him 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 mul- 
 titude 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 De- 
 cember, 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. 
 Indorsed "A TRUE BILL JOHN RANDOLPH.' 
 A Copy. Teste, 
 
 WILLIAM MARSHALL, Clerk. 
 
 After the indictment was read, Mr. Hay requested that 
 the jury should be furnished with implements necessary 
 to enable them to take notes on the evidence, and also 
 on the arguments if they should think proper ; that as 
 the cause was important, and would require all their at- 
 tention, it would be proper to afford them this assistance. 
 This was accordingly done. 
 
 Mr. Hay then opened the case with the following 
 speech : 
 
 May it please the court, and you gentlemen of the 
 jury: In the preliminary stages of the prosecution in 
 which we are now engaged, many observations were 
 made extremely derogatory to the character of the gov-
 
 OPENING ARGUMENT OF MR. HAY. 485 
 
 ernment .under which we live, and injurious to the feel- 
 ings of the counsel concerned in the prosecution. 
 Among other things, gentlemen of the jury, it was said, 
 that \ve had indulged an intemperate zeal against the 
 prisoner, which transgressed all the limits of moderation 
 and humanity; that we were anxious to convict him 
 even if innocent, and to deprive him of those means of 
 defense which justice and law direct. I do not know, 
 gentlemen of the jury, whether you heard this charge, or 
 if you did, whether it made any impression on your 
 minds ; but if it did, it is my duty to efface that impres- 
 sion. But how, gentlemen ? By professions of modera- 
 tion, candor, liberality and humanity? professions 
 easily made and as easily forgotten ! No. I will prove, 
 gentlemen, that this charge is unjust, by the course which 
 I shall pursue in the very management of this prosecu- 
 tion. We come now to a serious and interesting crisis 
 in this inquiry; on the result of which the life of a man, 
 and of a fellow-citizen, who once stood high in the esti- 
 mation of his country, must certainly depend. It is al- 
 leged that his life is forfeited to the offended justice and 
 violated laws of his country. It is my duty to support 
 that allegation ; but, gentlemen of the jury, if I know my- 
 self, if I can venture to express what my own feelings 
 dictate, I shall support that allegation only by facts 
 which I believe to be true, and by arguments which 
 have already produced my own conviction. 
 
 The prisoner at the bar is charged with treason, in 
 levying war against the United States. To this charge 
 he has pleaded not guilty. It is your high and solemn 
 duty to decide whether the charge be true or not ; and 
 you have sworn to decide it according to the evidence 
 which shall be laid before you. If you attend to the obli- 
 gation and the words of your oath, any admonitions from 
 me, with respect to the course which you ought 
 to pursue, will be entirely superfluous. If you decide 
 according to the evidence, you will divest your minds of 
 every bias, of all political prepossessions produced by ex- 
 traneous statements and rumors which you may have 
 seen and heard. You will enter upon the case with im- 
 partial attention, and a firm determination to do justice 
 ^between the United States and the prisoner. But, gentle-
 
 486 TRIAL OF AARON BURR. 
 
 men, if, after that patient investigation of the ^evidence 
 which the importance of the case requires, and which 
 I am sure you will bestow, you be not satisfied of the 
 guilt of the accused, it is your duty to say that he is not 
 guilty. This, gentlemen of the jury, is the language of 
 the law, of humanity, and of common sense. If you. 
 doubt on the subject, and can not bring your minds to a 
 positive determination that he is guilty, you must de- 
 clare him to be innocent. But, gentleman of the jury, 
 there is one distinction made sometimes by jurymen, to 
 which I will for a single moment call your attention, 
 which seems to me to be a distinction without a differ- 
 ence, and founded in wickedness and folly. It is this : 
 that they were satisfied as individuals that the prisoner 
 wasiguilty ; but yet, that they were not satisfied as jury- 
 men. This appears to me-to be a miserable fallacy. A 
 juryman may entertain a belief, founded on what he has 
 heard out of doors, which would not be warranted by 
 the legal evidence before him in the court, on which 
 alone he ought to decide ; but if the belief once exist in 
 his mind, from the evidence, that the prisoner has com- 
 mitted the crime alleged, he is then guilty of treachery 
 to his God, to his country, and to himself, if he do not 
 pronounce a verdict dictated by that belief. 
 
 This indictment contains two counts : one for levying 
 war against the United States at Blannerhassett's island, 
 in the county of Wood. The other contains precisely 
 the same charge, but goes on with this addition, that in 
 order to levy it more effectually, he descended the Ohio 
 and Mississippi with an armed force for the purpose 
 of taking New Orleans. If either charge be supported 
 by evidence, it will be your duty to find a verdict against 
 him. 
 
 In Great Britain, there are no less than ten different 
 species of treason ; at least, that was the number when 
 Blackstone 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
 
 OPENING ARGUMENT OF MR. HAY. 487 
 
 augmented. By the 3d section of the 3d article 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 wit- 
 nesses to the same overt act, or on confession in open 
 court." The offense being thus constitutionally defined, 
 the only question which presents itself to your view, at 
 this stage of the inquiry, is, What shall constitute an overt 
 act of levying war against the United States? Treason con- 
 sists in levying war against the United States ; the ques- 
 tion, then, is, What is in the law an overt act of" levying 
 war " against the United States? It is obvious that the 
 interval between the first movements towards a conspir- 
 acy, and actual hostilities, or a battle fought, is immense. 
 There may be a conspiracy to " levy war " but this is not 
 treason. Individuals may meet together and traitorously 
 determine to make dispositions to bring forces into the 
 field, and levy war against their country ; this is a con- 
 spiracy, but not treason. The conspirators may go a 
 step further ; they" may not only project a plan for 
 " levying war," but they may enlist troops for the pur- 
 pose of prosecuting their traitorous design ; but this is 
 not an overt act. It hath been decided by the supreme 
 court of the United States, that the persons concerned 
 in this conspiracy may yet take one step further, and be 
 on the safe side of the line which separates conspiracy 
 from treason. It has been adjudged that the individuals 
 engaged in the treason may 'proceed to a place of rendez- 
 vous. But, gentlemen, common sense and principles 
 founded on considerations of national safety certainly 
 require, that the crime of treason should be completed 
 before the actual commission of hostilities against the 
 government. If force must be employed before treason 
 shall be said to be perpetrated, what is the consequence? 
 Why, that the traitor will so take his steps, as not to 
 strike a blow, till he be in such an attitude as to be able 
 to bid defiance to the government, and laugh at your de-
 
 4 88 TRIAL OF AARON BURR. 
 
 finitions of treason. If he be a man of common under- 
 standing, he will not hazard a blow till his arrangements 
 be so complete that the blow shall be fatal. It will, then, 
 be a matter of very little consequence to him, what may 
 be the definition of the crime which he has thus com- 
 mitted. What, then, is the point at which a treasonable 
 conspiracy shall be said to be matured into treason ? 
 What shall be said to be an overt act of treason in this 
 country? The answer is this, gentlemen of the jury, 
 that an assemblage of men convened for the purpose of 
 effecting by force a treasonable design, which force is in- 
 tended to be employed before their dispersion, is treason- 
 able, and the persons engaged in it are traitors. The 
 answer which I have thus given is not literally that which 
 is furnished by the decision of the supreme court of the 
 United States; but it is substantially the same, and is 
 given in conformity to what I understand to be the 
 spirit of that decision. This is precisely the question 
 which was fully discussed before the supreme court of 
 the United States ; and as the opinion of that court on 
 this question was pronounced after great deliberation, 
 no other judicial tribunal within the United States 
 ought to support a doctrine contrary to the principles of 
 that decision ; and that opinion was, that a bare assem- 
 blage of men met to carry into forcible execution be- 
 fore their separation, a treasonable design, was an overt 
 act of levying war against the United States. I refer to 
 the opinion delivered by the Chief Justice, in the case of 
 Bollman and Swartwout, on the 2ist of February, 1807; 
 ii: which the following words occur : " It is not the in- 
 tention of the court to say that no individual can be 
 guilty of this crime who has not appeared in arms 
 against his country. On the contrary, if war be actually 
 levied, that is, ' if a body of men be actually assembled 
 for the purpose of effecting by force a treasonable pur- 
 pose, all those who perform any part, however minute, 
 or however remote from the scene of action, and who are 
 actually leagued in the general conspiracy, are to be con- 
 sidered as traitors; but there must be an actual assem- 
 bling of men to constitute a levying of war.' " If, there- 
 fore, war be levied in this manner, if a number of men 
 collect together for the purpose of effecting a treasonable
 
 OPENING ARGUMENT OF MR. HAY. 489 
 
 purpose, all are traitors. The construction which I have 
 thus given, comes within the words and meaning of the 
 decision of the supreme court, pronounced by yourself. 
 The same idea is expressed in perhaps ten or fifteen 
 other parts of this decision : " To complete the crime of 
 levying war against the United States, there must be an 
 actual assemblage of men for the purpose of executing 
 a treasonable design." There is the utmost precision 
 of language in every part of this judicial sentence. 
 Again : 
 
 " A design to overturn the government of the United 
 States at New Orleans by force, would have been un- 
 questionably a design, which, if carried into execution, 
 would have been treason ; and the assemblage of a body 
 of men for the purpose of carrying it into execution, 
 would amount to levying war against the United States; 
 but no conspiracy for this object, no enlisting of men to 
 effect it, would be an actual levying of war." If, then, 
 the accused and his associates had met together for the 
 purpose of effecting by force a dissolution of the govern- 
 ment of the United States, at New Orleans, though no 
 force had been used, or battle fought to accomplish it, 
 they would have been guilty of treason. Again, gentle- 
 men, the same idea occurs in these other passages : " It 
 can not be necessary that the whole army should be as- 
 sembled, and that the various parts which are to com- 
 pose it should be combined, but it is necessary that 
 there should be an actual assemblage." " The meeting of 
 particular todies of men, and their marching from places 
 of partial to places of general rendezvous, would be 
 such an assemblage." " It would certainly be an overt 
 act of levying war." I think, therefore, gentlemen, that 
 I may with confidence say, that I am warranted in the 
 construction which I have given, by an express and 
 solemn adjudication of the supreme judicial tribunal of 
 this country. 
 
 Perhaps, gentlemen of the jury, in opening this cause, 
 I may take more time than you think necessary, or 
 than I myself, strictly speaking, may think necessary ; 
 but justice to the accused requires that I should ex- 
 plicitly communicate the ground and principles on which 
 the prosecution is meant to be maintained, that his coun-
 
 490 TRIAL OF AARON B URR. 
 
 sel may prepare for his defense. I must solicit your at- 
 tention while I state for your consideration those 
 reasons which have induced me, in giving this exposition 
 of the words "levying war," to omit two circumstances, 
 both of which may be deemed by the counsel for the 
 prisoner to form essential parts in the definition of trea- 
 son. In the definition which I gave just examined, no 
 notice is taken of arms or military weapons ; nor have I 
 stated that any actual force or hostility has been em- 
 ployed for the purpose of effecting the treasonable de- 
 signs ; because I think neither of them essential, accord- 
 ing to the constitution and laws of this country. 
 
 On the first point I shall offer but a few remarks. But 
 before satisfying you of the legal propriety of the omis- 
 sion, permit me to examine the question on principles of 
 common sense ; for it must be admitted that in legal dis- 
 cussions we do not always carry common sense along 
 with us from beginning to end. Let us, then, consider 
 this case, not a,s it would be presented to us by lawyers 
 and judges, but by the sound principles of common 
 sense and national policy. I say that it is not necessary 
 that the conspirators thus assembled should be armed, 
 to make them traitors : but that their treason may be 
 complete, though they have not a single gun, nor even a 
 sword, in the whole transaction. Let us suppose a case: 
 There has been a time when ten or fifteen thousand stand 
 of*arms were deposited under the roof of this capitol ; 
 suppose that four or five thousand unarmed men should 
 meet together, within a few miles of this city, with a de- 
 liberate, preconcerted design to march to the capitol, 
 take possession of the public arms, disperse the legisla- 
 ture, and usurp all the powers of the government; sup- 
 pose ten thousand men unarmed should come within a 
 few miles of this city, where they knew they could get 
 arms, for the purpose of carrying into effect their treason- 
 able designs : let us suppose, what is not unreasonable to 
 suppose, that the infantry and cavalry of this city, should 
 gird on their armor, and resolve, as good honest citizens 
 and brave soldiers, to disperse these conspirators, before 
 they carried their treasonable purposes into effect ; they 
 arm, they march, and these conspirators, apprised of their 
 approach, and conscious of their own guilt, disperse and
 
 OPENING ARGUMENT OF MR. HAY. 491 
 
 fly in every direction. I ask whether they would not be 
 traitors ? They had assembled and marched for the pur- 
 pose of subverting the government of their country, but 
 before they got possession of the arms which it was their 
 intention to seize and turn against their country, they 
 were dispersed, and effected their escape. Could any 
 man say that these men, thus assembled, were not, to all 
 intents and purposes, traitors to their country ? Or, gen- 
 tlemen, suppose that a number of men should assemble 
 on Blannerhassett's island, in the county of Wood ; sup- 
 pose, what I do not believe was the fact, that they have 
 no arms; they descend the Ohio and Mississippi, with 
 an intention to take New Orleans and plunder it, and 
 divide the union. They calculate on meeting their leader 
 at the mouth of Cumberland river, and when at Baton 
 Rouge, to obtain arms on the river. Their numbers in- 
 crease as they go on, and we are told that when they ar- 
 rive there, they will get arms by the aid of the Spanish 
 minister. Would the simple circumstance of their being 
 unarmed, lessen their guilt ? Would it not be an absurdity 
 and a violation of common sense, to say, that the mo- 
 ment before they got possession of arms, they were not 
 traitors ; but that the instant they put their hands on 
 the muskets they became traitors ? It appears to my 
 mind that the description of treason given by the supreme 
 court was correct, when in one passage it is silent as to 
 the necessity of possessing arms to constitute treason ; 
 and in another part, if I am not greatly mistaken, it has 
 expressly disclaimed it. If, gentlemen, this point were 
 not to be so determined, what would be the result? 
 Why, this, that the conspirators would take care never to 
 touch arms, till they were ready to strike a blow. Their 
 arrangements would be made in such a manner, that they 
 would have military weapons placed within their reach, 
 but they would not lay their hands on them till their or- 
 ganization were complete. 
 
 It is not essential, therefore, on principles of common 
 sense or national policy, that they should have arms be- 
 fore they could be said to have committed an overt act 
 of treason. And what says the law? In the case, gen- 
 tlemen of the jury, decided by the supreme court, you 
 find that there is not a single syllable said, from begin-
 
 492 TRIAL OF AARON BURR. 
 
 ning to end, with respect to the necessity of arms being 
 in the hands of the persons assembled in order to perpe- 
 trate the crime of treason ; and in the trial of Fries, p. 
 197, one of the judges of the supreme court (Judge Chase) 
 embraces this opinion ; he says, " That the court are of 
 opinion, that military weapons (as guns and swords men- 
 tioned in the indictment) are not necessary to make such 
 insurrection, or rising, amount to levying war ; because 
 numbers may supply the want of military weapons, and 
 other instruments may effect the intended mischief. The 
 legal guilt of levying war may be incurred without the 
 use of military weapons, or military array." It is re- 
 markable, too, that this very doctrine is admitted by the 
 counsel of the accused (Mr. Dallas, p. 108). I do not 
 state it as authority, but it affords a strong presumptive 
 argument that the law was against him ; for the counsel 
 of a prisoner never makes a concession, unless the law be 
 extremely clear against him. 
 
 In Great Britain there is a statute which passed many 
 years ago, in the 25th year of the reign of Edward 
 III., in which treason is described in the very identical 
 words of our constitution, in the 3d section of the 3d 
 article. This statute makes " levying war " against the 
 king to be treason. When, therefore, the framers of 
 our constitution, many of whom were lawyers of distin- 
 guished talents, defined " treason " in the very words by 
 which it had been defined many years ago in that coun- 
 try, and which had been so often the subject of discus- 
 sion and adjudication, it is to be fairly presumed, that 
 they used those words in the same sense which has been 
 annexed to them by the judges in Great Britain. An 
 observation of a judge of the court of the United States 
 on this subject, who is now no more, but was very re- 
 spectable (Judge Iredell), amply confirms this remark. 
 In Fries' Trial, p. 167, that able judge says, " Now, I 
 must confess, as these able and learned framers of our 
 constitution borrowed the act, in terms, from the British 
 statute alone, an authority with which they were familiar, 
 that they certainly at least meant that the English 
 authorities and definition of those terms should be much 
 respected." The only purpose for which I have made 
 the reference to the British laws, is to show that the
 
 OPENING ARGUMENT OF MR. HAY. 493 
 
 decision of the supreme court on this subject, in the 
 case of Bollman and Swartwout, is not an innovation, 
 not a new doctrine, but is an exact counterpart of, and 
 taken from, the decisions of the English Judges. To 
 prove this. I refer to Foster's Crown Law, p. 208, where, 
 speaking of being armed and arrayed in a warlike man- 
 ner, he says that " the merits of the case have never 
 turned singly on any of those circumstances." " In the 
 cases of Demaree and Purchase, which are the last 
 printed cases that have come in judgment, on the point 
 of constructive levying war, there was nothing given in 
 evidence of the usual pageantry of war ; no military 
 weapons, no banners or drums, nor any regular consul- 
 tation, previous to the rising: and yet the want of those 
 circumstances weighed nothing with the court ; though 
 the prisoner's counsel insisted much on that matter. 
 The number of the insurgents supplied the want of 
 military weapons, &c. The true criterion, therefore, in 
 all these cases is, quo animo, did the parties assemble? 
 For if the assembly be on some private quarrel, or to 
 take revenge of particular persons," then it is not trea- 
 son. But if the cause of the assembly be an object in 
 which the nation itself is concerned, as taking possession 
 of New Orleans, the key of the western world, then, 
 according to common sense, the opinion of the English 
 judges, or of the supreme court, it is treason. The 
 opinion of Judge Foster, is quoted in East's Crown Law, 
 vol. i, p. 67. He concurs in the opinion of Judge 
 Foster, and thinks that arms and military array are not 
 essential to constitute treason. 
 
 I have thought it my duty to enter into this tedious 
 exposition of the law on this point, though it did not 
 appear to me to be absolutely necessary, because our 
 own courts have decided this question, in language too 
 plain to be misunderstood by mortal man. Another 
 circumstance which perhaps rendered this discussion un- 
 necessary, is this: that the persons assembled on Blan- 
 nerhassett's island were actually armed for offensive, as 
 well as defensive, purposes. 
 
 I have thus endeavored to satisfy you, gentlemen, that 
 1 was correct in omitting, in the definition of treason, 
 that they were armed or in military array. I submit to
 
 494 TRIAL OF AARON BURR. 
 
 you, gentlemen, how far I have succeeded in justifying 
 the propriety of this omission. 
 
 I stated to you a second omission, that the persons 
 assembled are not stated to have employed any actual 
 force, or committed any hostilities. I contend that 
 treason may be committed, though no battle be fought, 
 and though no act of violence or force whatsoever be 
 done. 
 
 I trust that I have shown that the treason is com- 
 pleted the very instant that they assemble together with 
 a treasonable design. It will, perhaps, be said on the 
 other side (though I can hardly persuade myself that it 
 will), that arms must be used, that force must 1 be em- 
 ployed, before war shall be saiti to be levied. If they 
 should contend that the conspirators must have arms, 
 and must employ force, before they can incur the guilt 
 of treason, observe the embarrassment in which their 
 doctrine will involve them. If ten thousand men were 
 to assemble together and march to the city of Washing- 
 ton, for the express purpose of sending the president to 
 Monticello, turning congress out of doors, taking pos- 
 session of the capital, and usurping the powers of the 
 government, they would not be guilty of treason ; because 
 they had not yet struck a blow. They* advance and 
 proceed ; they meet no opposition ; the nembers of the 
 government disperse through fear ; and yet this is not 
 treason ! I should suppose that it would be acknowl- 
 edged to be usurpation, and that the persons who had 
 thus assembled and proceeded to the capital of the 
 union, with a determined intention of subverting the 
 government, were traitors. No violence has been used, 
 no opposition has been encountered, and they effected 
 their object, because the terror and dismay inspired by 
 their numbers, rendered resistance impossible ; yet they 
 are not traitors ! The doctrine that makes force, or the 
 actual exertion of arms, an essential ingredient in the 
 composition of treason, is, in my estimation, the most 
 dangerous and most fatal that can be conceived. It is the 
 very doctrine which traitors themselves, assembled to- 
 gether for the purpose of devising taws for their own 
 security, would be most disposed to recognize. For if 
 they were not traitors till they struck a blow, they would
 
 OPENING ARGUMENT OF MR. HA Y 4 <, 5 
 
 have nothing else to do but to be on their guaro and 
 never to lift their arm till the blow should take full 
 effect. The doctrine for which I contend, is completely 
 and unequivocally confirmed by the decision of the 
 supreme court of the United Sates. There is not a 
 single word in it from which it can be reasonably 
 inferred, that, in order to commit treason, actual hostil- 
 ity or force must be employed. 
 
 I do not know whether the counsel for the accused 
 will take shelter under some expressions used by the 
 judges in the case of Fries, p. 197 ; and I candidly admit 
 that there are some expressions used by Judge Chase, 
 from which it may be inferred that force must be used, 
 to complete the crime of treason. If they should think 
 proper to rely on those expressions, to prove that force 
 is necessary, I have only to remark, that it is but the 
 opinion of a single judge, or of the judges of a subordin- 
 ate court, and can not be opposed to the decision of the 
 supreme court. But this opinion can not be considered 
 as authority, for two reasons. First, it will be recol- 
 lected that the opinion on that point is extrajudicial ; 
 by which I mean to say, that it was not such a point as 
 was necessary to be settled in the case then before the 
 court. He was speaking on a subject not immediately 
 before him, and which he decided only incidentally. The 
 question before him, was not whether force did enter 
 into the composition of treason ; for in the case of Fries 
 there was no sort of doubt that every kind of force was 
 used. It was a case of an actual opposition to the laws 
 of the United States : and nothing is considered as an 
 authority, but a decision of the court on the very point 
 which brings the question before it ; the opinion was 
 therefore extrajudicial. 
 
 But, secondly, the opinion delivered by Judge Chase will 
 be found, on an accurate inspection, not to be consistent 
 with itself; for, in some parts of it, he contends for the 
 doctrine which I now maintain, and expresses himself in 
 very different language from those relied on. I do not 
 say this by way of detracting from the intellectual powers 
 of the judge ; but such is the infirmity of human nature, 
 that it is difficult for the ablest man to be always con- 
 sistent in argument. In his definition of treason, in the
 
 \ 
 496 TRIAL OF AARON BURR. 
 
 same case, p. 196, he says, that " any insurrection or ris- 
 ing of any body of people, within the United States, to 
 attain or effect, by force or violence, any object of a great 
 public nature, or of public and general (or national) con- 
 cern, is a levying of war against the United States, with- 
 in the contemplation and construction of the constitu- 
 tion." Thus excluding from his definition the two cir- 
 cumstances which I have omitted in mine : military- 
 weapons, and the actual employment of force. In the 
 next page, he expressly states, that military weapons, &c. 
 are not essential in the consummation of treason ; and 
 yet in the course of the same charge,, and in the same 
 page, he seems to think that some force must be em- 
 ployed, before the crime can be legally complete. In 
 the former page, he lays down the doctrine for which I 
 contend ; which is the very same that was delivered in 
 the case of Bollman and Swartwout ; that is, that an as- 
 semblage of men for the purpose before described, is a 
 "levying of war." After stating this in terms as precise 
 as any in the English language, he says in the next page 
 (197), that "some actual force or violence must be used, 
 in pursuance of such design to levy war ; but that it is 
 altogether immaterial whether the force used be sufficient 
 to effectuate the object ; any force connected with the 
 intention, will constitute the crime of levying war ;" and 
 however other parts of this opinion may be reconciled to 
 each other, that part where he says, that the persons as- 
 sembled must use some force, is incompatible with an- 
 other part, where he declares that any insurrection or 
 rising of any body of people, to attain or effect by force, 
 any object of a great " public nature, &c. is a levying of 
 war," &c. In the one, some actual force is requisite ; in 
 the other, only an insurrection or rising of a body of the 
 people, for the purpose of effecting their object by force, 
 is deemed sufficient. I stated to you before, gentlemen, 
 that the opinion, that they must have arms, is inconsist- 
 ent with the principles of national policy, and opposed 
 to the opinion of the supreme court. 
 
 It is only a mere dictum of Judge Chase, in a case not 
 necessary to be decided. The truth is, that he did not 
 express himself on this subject with the precis-ion which 
 he would have displayed had the question before h : m
 
 OPENING ARGUMENT OF MR. HAY. 497 
 
 been what it was before the supreme court, and v/hat it 
 is here. In 2nd Dallas's Reports, p. 335, Judge Patter- 
 son lays down the law on this subject, in exact conform- 
 ity to the opinion of the supreme court; and d'oes not 
 think war-like weapons necessary to constitute an act of 
 treason. Let me also refer to the argument of Mr. Lewis, 
 who appeared as counsel in the defense of Fries, with as 
 much zeal and professional ability as any man could 
 have done. I do not know him, but he is said to be a 
 man of great ability and legal erudition. He would 
 make no concession injurious to his client ; and yet, in 
 his elaborate argument, he says not one word about the 
 employment of force, or the actual commission of hostili- 
 ties. If they assemble without the employment of force, 
 but for the purpose of effecting a treasonable design be- 
 fore their separation, they are traitors. Such is the law 
 as defined by the supreme court, and admitted by a most 
 able and zealous defender of a person prosecuted for 
 treason. 
 
 These opinions and decisions are in conformity to the 
 most respectable authorities and adjudications on criminal 
 law in England. Treasons in that populous country are 
 generally accompanied by force ; but that the actual use 
 of force, where the traitorous design of an assemblage of 
 men is clearly proved, is not necessary, is, in my judg- 
 ment, indisputably certain. Foster, in p. 211, says, that 
 " all insurrections of a public and general concern, which 
 in judgment of law are intended against the king, to de- 
 throne or imprison him, to oblige him to alter his mea- 
 sures of government, or to remove evil counselors, &c. 
 amount to levying war within the statute, whether with 
 the pomp and open circumstances of war or no." The 
 words here used, "levying war," are the very words 
 adopted in the constitution of the United States. In 
 page 218, he is still more explicit: "An assembly armed 
 and arrayed in a warlike manner, for any treasonable pur- 
 pose, is ' bellum levatum,' though not ' bellum percus- 
 sum ' was levied, though not struck." See, also, East's 
 Crown Law, p. 67, before referred to. After stating the 
 same words, he adds, " enlisting and marching are suffi- 
 cient overt acts, without coming to an actual engage- 
 ment ; in the same manner as cruising under an enemy's 
 
 S3
 
 498 TRIAL OF AARON BURR. 
 
 commission, though no act of express hostility be 
 proved, is an adherence to the king's enemies." It shows 
 that according to the exposition of the law in England, 
 it is not necessary that force should be employed before 
 the act of treason shall be said to be completed. But 
 whether I be correct in my exposition of the English law 
 or not, is perfectly immaterial; because in our own coun- 
 try the judges of the supreme court have placed this 
 point beyond the reach of controversy ; and I hope you 
 are perfectly disposed to respect that opinion which was 
 in fact pronounced by yourself. 
 
 If, according to the decision of the supreme court, 
 neither arms nor force be essential to constitute treason, 
 I will ask whether an assemblage of men on Blannerhas- 
 sett's island, convened with a traitorous design, to be 
 executed before their separation, were not treason against 
 the United States? 
 
 You will be told, gentlemen, that certainty in criminal 
 law is important) and, in that part which relates to trea- 
 son, essential to public liberty. Perhaps you will be re- 
 minded of an obversation of a celebrated writer, that 
 uncertainty on this single point is sufficient to convert 
 a republican into a despotic government. This observa- 
 tion, though made by Montesquieu, is not admitted to 
 be applicable to the government of this country, de- 
 pendent as it is on the people ; nor to our people, in- 
 formed as they are of their, rights. But suppose it to be 
 so, it does not apply to the subject now under your con- 
 sideration. The answer is as conclusive as it is obvious, 
 that by the decision of the supreme court, the la\v is 
 rendered certain. The decision of that court has pointed 
 out to the people of the United States the line beyond 
 which they can not go without subjecting themselves to 
 the consequences of the commission of treason. The 
 court has said that conspiracy to levy war is not treason ; 
 that enlisting of men is not treason ; that marching from 
 a place of partial, to a place of general rendezvous is not 
 treason ; but than an assemblage of men convened to 
 effectuate forcibly a traitorous intent, is traitorous ; and 
 all concerned in it are traitors. Every man may know 
 the situation in which he stands, and at what point to 
 stop, if he wish to avoid the imputation and the guilt of
 
 OPENING ARGUMENT OF MR. HAY. 499 
 
 treason. You will probably be told, also, of the danger 
 of constructive treasons. It may be observed, that, in 
 Great Britain, this doctrine has produced much oppres- 
 sion ; and you may be asked, why we should be ex- 
 empted from the same evils in this country ? Black- 
 stone, in vol. 4 of his Commentaries, p. 75, describes 
 constructive treason thus : " to raise by force and arbi- 
 tary constructions, offenses, into the crime and punish- 
 ment of treason, which never were suspected to be such ; " 
 of this, some terrible examples exist in the earlier peri- 
 ods of English history, when the people were ignorant, 
 and the judges entirely dependent on the king. 
 
 It is admitted that the doctrine which shall let in 
 treasons, not defined by the constitution by mere arbi- 
 tary constructions, influence, or analogy, as in England 
 formerly, ought not to be countenanced. But it will not 
 be said that there is, in this country, any danger to be 
 apprehended on this subject ; where the government de- 
 pends so much on the will of the people, and the people 
 know so well their rights, and how to support them. I 
 believe no danger from this consideration is ever to be 
 experienced here. It may serve as a topic of declama- 
 tion, but the apprehension of real mischief from this 
 source is absolutely visionary. 
 
 But this is not a question arising on constructive trea- 
 son, but on the constitution. The inquiry is, What is 
 the meaning of the words used in the constitution ? It is 
 the business, no doubt, of the court to construe what is 
 meant by the words " levying war." These words do not 
 present to the mind a precise and distinct idea, like the 
 words " murdering a man," or " stealing a horse." If 
 the question, What is " levying war?" were propounded 
 distinctly and separately to every individual composing 
 this assemblage, very few, even of the most intelligent 
 among them, would have the temerity to answer without 
 great hesitation and doubt. The answer would be va- 
 riant ; perhaps as many opinions as men. Necessity, 
 therefore, requires that the courts should ascertain the 
 constructions of these words. It is their duty to do so. 
 It is a task they have undertaken when they became 
 judges, and they have performed that task, by giving 
 a reasonable construction of the meaning of the words
 
 500 TRIAL OF AARON BURR. 
 
 used in the constitution, as descriptive of treason. 
 This will not be called a constructive treason. It 
 would be absurd to apply that term to it ; because 
 it is absolutely necessary to define the offense. On 
 this point permit me to refer to the opinion of Judge 
 Peters, on- Fries' Trial; p. 206-7: ''The doctrine of 
 constructive treason has produced much real mischief in 
 another country ; and it has been for an age the subject 
 of discussion among lawyers, other public speakers, and 
 political writers. The greater part of the objections to 
 it are totally irrelevant here. The subject of them is 
 unknown, and may it ever remain so in this country. I 
 mean the compassing the death of the king. It will be 
 found that the British judges, since the days of political 
 darkness and bigotry have passed away, are to be found 
 among the most able and decided opposers of the abuses 
 of this doctrine. They do not follow decisions and doc- 
 trines rooted in bad times, because they find them in their 
 law books. On the contrary, on a fair investigation, it will 
 be proved that those contrary to justice, reason, and 
 law, are rejected. It is not fair and sound reasoning to 
 argue against the necessity and indispensable use of -con- 
 struction from the abuses it has produced. What is 
 there among the best of human (and I wish I could not 
 add divine) systems, which has not been perverted and 
 abused ? That there must be some defined sense and 
 interpretative exposition, made of the terms " levying 
 war," and when, and in what circumstances it is levied 
 against the United States, can not be denied. The able 
 counsel in this case, who has said the most on this 
 subject, and traveled the furthest into the gloomy, dark, 
 and tyrannical periods of British history and jurispru- 
 dence, for melancholy and disgusting proofs of atrocious 
 abuses and even crimes, committed under color of law, 
 has unavoidably himself furnished also proof of the nec- 
 essity we are under of some constructive or interpreta- 
 tive expositions. He at first confined these expositions 
 to three cases. Now, if there be a necessity of one, it 
 shows, that without supplementary interpretation, the 
 law would be a mere dead letter ; aware of the danger- 
 ous lengths to which the abuses of construction have 
 been carried, courts and juries should be cautious in
 
 OPENING ARGUMENT OF MR. HAY. 501 
 
 their decisions ; but not so much alarmed about abuses 
 as to refrain from the proper and necessary use of inter- 
 pretation." Is is true, gentlemen, that there was a time 
 when the courts admitted anything to be treason which 
 the king of that country wished to be treason ; acts in 
 themselves innocent, and which had no relation to trea- 
 son, were construed to be treason ; as coining mojney, 
 where the party accused had no idea of the commission 
 of treason, but merely to perform the act of coining. 
 Surely, gentlemen will not say that constructive treason'' 
 has been introduced into this country because the 
 judges are obliged to interpret this. part of the constitu- 
 tion. If, gentlemen of the jury, the law thus established 
 by the supreme court shall be said' to be a constructive 
 treason, the inference is, that the judges ought to give 
 no opinion on the meaning of the constitution on this 
 subject ; which would be absurd ; for it is their solemn 
 duty to construe the constitution and laws of the gen- 
 eral government. Another inconvenience that would re- 
 sult from the inability of the judges to expound the 
 constitution is, that the law would be perfectly uncer- 
 tain, on the most interesting of all legal subjects ; 
 which would be a most grievous mischief, as juries 
 would be under the necessity of taking upon themselves 
 the correct exposition of the law, or it must be con- 
 ceded that the opinion of the supreme court is erron- 
 eous. The latter, I presume, is a position which the 
 counsel for the prisoner will hardly undertake to sup- 
 port. 
 
 If, however, they, do undertake to show that the opin- 
 ion of the court is incorrect, and that the crime of trea- 
 son can not be committed in this case ; that an assem- 
 blage of men with a traitorous design is not sufficient, 
 but that actual force must be employed, and hostilities 
 commenced before the treason is complete, the consti- 
 tution is a dead letter: No man can be pronounced to 
 be a traitor, till, by striking a blow, he be, or conceives 
 himself to be, beyond the reach of the law, or have over- 
 thrown your government. 
 
 Perhaps it will be said that the decision of the supreme 
 court is not correctly understood or stated by me. I 
 may be incorrect in my exposition of it, but the Ian-
 
 502 TRIAL OF AARON BURR. 
 
 guage of the court is as definite and perspicuous as any 
 that can be conceived. If we do not understand it cor- 
 rectly it is in vain to* look into reported cases for evi- 
 dence of the law, or to inquire what the law is. In 
 every part of its judicial opinion the ideas which it has 
 expressed are perfectly consistent ; and you will not find 
 from beginning to end a sentence, or even a word which 
 implies that anything more is necessary for the comple- 
 tion of treason than an assembly of men convened for 
 the purpose of executing a traitorous design. 
 
 I should, therefore, take it for granted that the law is 
 as I have stated it to .be, and that the overt act of trea- 
 son was complete, if there were an assemblage of men on 
 Blannerhassett's island, in the county of Wood, whether 
 they were armed or not, and whether they used force or 
 not. It is incumbent on those who prosecute to show, 
 1st, That there was a treasonable design ; and 2d, That 
 there was an assemblage of men for the purpose of ef- 
 fectuating that design. It will be proved to you, gentle- 
 men of the jury, that the design of the prisoner was not 
 only to wage war against the Spanish provinces, but to 
 take possession of the City of New Orleans, as prepara- 
 tory to that design ; to detach the people of that coun- 
 try from this, and establish an independent government 
 there, and to dismember the union, separate the western 
 from the eastern states, making the Alleghany Mountains 
 the boundary line. You will perceive from the evi- 
 dence, that he intended to take possession of New Or- 
 leans, to excite the people there to insurrection, and to 
 take advantage of the hostile sentiments which prevailed 
 to the west of the Alleghanies against the Spaniards. If 
 either of these be proved ; if it be established that his 
 design was to separate the states ; or after seizing New 
 Orleans, to invade the Spanish provinces, he is guilty of 
 treason. If, in fact, it be proved, that he intended to 
 take New Orleans at all, he is completely guilty of trea- 
 son ; whether he designed to take possession of the 
 whole, or of a part, he is equally guilty of treason. It 
 would be absurd to suppo e that a man who had resolved 
 in his mind a scheme so gigantic as this, would commu- 
 nicate it to many persons. But he did disclose it to a 
 few ; and, fortunately for our country, he was mistaken
 
 OPENING ARGUMENT OF MR. HA Y. 503 
 
 in his opinion of those persons in whom he confided ; 
 and the evidences of his design have been disclosed to 
 our government. I am warranted in saying, gentlemen of 
 the jury, that evidence the most positive and direct, and 
 circumstances numerous and conclusive, will prove to 
 your satisfaction, that the intentions of the accused were 
 precisely such as I have mentioned. 
 
 For the purpose of accomplishing these great designs; 
 of establishing an empire in the west, of which New Or- 
 leans was to be the capital, and the accused was to be 
 chief, he made two long visits to the western country. He 
 went to Ohio, Tennessee, and Kentucky, in fact to all the 
 western world, and traveled in various directions, till he 
 went finally to New Orleans. Wherever he went, he 
 spoke disrespectfully of the government of his country, 
 with aview to facilitate the consummation of hisown de- 
 signs. He represented it as destitute of energy to sup- 
 port or defend our national rights against foreign enemies, 
 and of spirit to maintain our national character. He uni- 
 formly said, that we had no character either at home or 
 abroad. To those in whom he confided, he asserted that 
 all the men of property and influence were dissatisfied 
 with its arrangements, because they were not in the 
 proper situation to which they were entitled : that with 
 five hundred men he could effect a revolution by which 
 he could send, the president to Monticello, intimidate 
 congress, and take the government of the United States 
 into his own hands ; that the people of the United States 
 had so little knowledge of their rights, and so little dis- 
 position to maintain them, that they would meanly and 
 tamely acquiesce in this shameful usurpation. This is 
 the very language of the prisoner, about the government 
 and people ; representing the one as totally destitute of 
 all energy and talents, and the other of all patriotism 
 and virtue. But he confined this language to the peo- 
 ple of the east ; he spoke a different language to the peo- 
 ple of the west. He told them that they,were in a state 
 of colonial dependence on those of the Atlantic States, 
 and annually paid millions to the government of the 
 United States, for which they derived no benefit v:hat- 
 ever ; for which they received no protection, no return. 
 The people on the other side of the Alleghanies were told
 
 504 TRIAL OF AARON BURR. 
 
 that a separation was necessary and would unquestiona- 
 bly take place ; that it was not likely to take effect by 
 the operation of natural, of moral and political causes, 
 but as determined by a particular chain of events ; that 
 the destiny of the republic was fixed, and that this revolu- 
 tion would be accomplished in less than two years.' I 
 thank God that this prediction has not been fulfilled, and 
 I hope our posterity to the latest generation will thank God 
 that it has not been fulfilled before their time ! Such 
 was the language of the accused ; such the sentiments 
 which he avowed, and the doctrines which he endea- 
 vored to propagate. He said everything to dissatisfy 
 them with their brethren of the east, though all this time 
 he pretended that his objects were of a purely agricultu- 
 ral nature. Nor did he confine himself to conversation 
 with intelligent men only; there were writings published 
 that came from the pen of the person who is indicted, as 
 connected with him, calculated to scatter disaffection 
 among the people and prepare them for his plans. 
 
 To accomplish these plans, in the summer and fall of 
 1806, men were actually enlisted, boats were built on the 
 waters of the Ohio, provisions purchased to an enormous 
 amount, and arms and ammunition provided, as if the ob- 
 ject was meant to be carried into effect in a foreign na- 
 tion, a"nd as if some hostile expedition were on foot. 
 Some of these men, about forty in number, assembled 
 with arms, on Blannerhasset's island, in order to descend 
 the river. Burr was not there then ; he had been there 
 only a short 'time before, and intended to return, but 
 was warned not to return ; but his absence*at the time 
 when the people assembled is totally immaterial. A 
 m^n may " levy war " against his country, when not pres- 
 ent. A man may "levy war " against a country, though 
 three thousand miles distant. This we may probably 
 have an experience of in the course of a very few months. 
 But this principle has been sufficiently established by the 
 decision of the supreme court. " If war be actually le- 
 vied, all those who perform any part, however minute, 
 or however remote from the scene of action, and who 
 are actually leagued in the general conspiracy, are to be 
 considered as traitors." 
 
 These troops on the island, seeing the country alarmed
 
 OPENING ARGUMENT OF MR. HA Y. 505 
 
 and apprehending that they would be attacked by the 
 militia of Wood county, made a precipitate retreat by 
 night, in company with Blannerhassett, and went down 
 the Ohis to the mouth of Cumberland river, where the 
 accused joined them and took the command. By this 
 time their numbers increased to about one hundred. 
 These men, under the command of Burr and Blanner- 
 hassett, descended the Mississippi to Bayou. Pierre, a 
 point not far from Natchez. It was here, gentlemen of 
 the jury, that he first learned that all his schemes would 
 .be frustrated by the exertions of the commander-in-chief; 
 that his letter in cypher had been communicated to the 
 president ; and it was here that in the first moment of ; 
 surprise, he expressed to another person his astonish- 
 ment and indignation, at being (as he said) thus betrayed. ' 
 Finding that the commander-in-chief, had baffled all his 
 schemes, by communicating his letter to the president, 
 he entered into a kind of capitulation with Cowles 
 Meade, was bound to appear before a tribunal at Nat- 
 chez, from whence, it is said, he came off without leave 
 of the court, in violation of his recognizance, and in his 
 flight was taken by Perkins. 
 
 It will be proved to you, by express and direct evi- 
 dence, that a settlement of lands on the Washita, was 
 merely a cover to conceal the real design, which was to 
 separate the union, take possession of New Orleans, and 
 attack the Spanish provinces. But the utmost mystery 
 and circumspection prevailed on this subject. To the 
 world at large, and to those with whom he had not 
 tampered, the object was held up to be the settlement 
 of lands up the Red river. To some, intimations were 
 dropped of an approaching rupture with Spain, against 
 whose provinces the expedition was intended, and the 
 conquest of Mexico was alluded to ; his language varied 
 according to the character of the man with whom he 
 conversed. To a few only his real design was developed ; 
 but to all he said that there was a great scheme in view. 
 All were told that the design was just and honorable; 
 known and approved by the government ; in which the 
 co-operation of the army was to be expected ; in which 
 great wealth was to be acquired, and that it would be 
 developed as soon as the proper time for the disclosure
 
 5o6 TRIAL OF AARON BURR. 
 
 arrived. The time, however, never did arrive. At 
 Blannerhassett's island, they were told that it was not 
 the time, but that when they came to the mouth of the 
 Cumberland, they should be informed. When there, 
 some of them, whose intentions were really honest, who 
 were not disposed to violate the laws of their country, 
 and who were induced to join him by the expectation 
 of acquiring wealth, by laudable and honorable enter- 
 prize, were anxious, and endeavored to know what was 
 the real design : but circumstances, they were told, were 
 such, that it could not yet be communicated. Ignorant, 
 people were led away from their homes, under a belief 
 that they would be speedily informed of the whole pro- 
 ject. The information was promised, but never im- 
 parted. The consequence was that when Mr. Burr was 
 apprehended, they were left to find the way back to 
 their own homes by any means in their power. 
 
 Chimerical as this project was, there was only one 
 single thing wanting to its accomplishment ; the co-opra- 
 tion of the commander-in-chief, and of the American 
 army. If General Wilkinson had acted as some have 
 represented, if he had acted the part of a traitor instead 
 of performing the character of a patriot, I ask what 
 would have been the situation of this country at this 
 moment ? There would have been a civil war raging 
 in the west ; and the people of the United States, united 
 as they are by interest, by sympathy and blood, would 
 have been involved in a sanguinary contest with one an- 
 other; while our eastern coasts would have been in- 
 sulted and ravaged by an insolent and rapacious foe, in 
 consequence of their knowledge of our divided situation. 
 From this calamity in the west we have been protected 
 by the vigilance and integrity of the commander-in-chief. 
 I care not how my declaration may be considered : but 
 I will venture to assert, that from the adoption of the 
 federal constitution till this time, no man has rendered 
 more essential service to the people and government of 
 the United States than General Wilkinson has done, by 
 counteracting and defeating this project. Yet, for this 
 service, eminent and important as jit is, he has been as 
 much censured, abused, and calumniated, as if he had 
 joined in it.
 
 OPENING ARGUMENT OF MR. HAY. 507 
 
 It is not for me to anticipate the defense which will 
 be made for the accused, but I presume I may speak of 
 the defense which he has made. He stated himself, 
 while under examination, that his scheme was peaceful 
 and agricultural. If the ground shall be again taken, it 
 will be extremely easy to satisfy you by a variety of cir- 
 cumstances, that this was not the scheme contemplated 
 by those engaged in that expedition. I intend hereafter, 
 if necessary, to enter into .an enumeration of those cir- 
 cumstances, but at present I feel myself too much ex- 
 hausted to detail them. 
 
 I have observed that you would enter upon this in- 
 quiry with candor and patience, and I must hope, too, 
 with firmness. You will contemplate and decide this 
 question on the same principles, under the same laws, 
 and in the same manner as if the question were between 
 fhe United States and the most ignorant an<3 deluded 
 of those concerned in the scheme. It is true that the 
 prisoner has been vice-president of the United States ; 
 he has been the second in office in the government of 
 this country, and perhaps the second in the confidence 
 and affection of the people ; and that he possesses 
 talents and energies, which, at the approaching crisis, 
 might have been employed most honorably for himself, 
 and most usefully for his country ; but these circum- 
 stances rather aggravate than extenuate his guilt, if he be 
 guilty. In other countries, a discrimination may be 
 made between different classes of the community ; it is 
 not often that the laws of society operate upon men of 
 this stamp in those countries. Lord George Gordon, the 
 miserable fanatic, who marched at the head of the riot- 
 ers in London, in the year 1781, was discharged, while 
 eighteen or nineteen of his poor deluded followers paid 
 the forfeit of their offenses, and were punished for his 
 crimes. I call upon you, gentlemen of the jury, to dis- 
 regard all such distinctions in this land of liberty, equal- 
 ity, and justice, to view this case in the same light in 
 which you would regard it if any other man in the com- 
 munity were brought before you. I call on you to do 
 ; vstice. and to decide the cause according to the evidence 
 ^h'ich will be produced before you. 
 
 After Mr. Hay concluded, some desultory observations
 
 5o8 TRIAL OF AARON BURR. 
 
 were made by the counsel on both sides, with respect to 
 the accommodation of the jury, and the times of meet- 
 ing and adjourning the court during the trial. Some ar- 
 rangements were proposed for the jury : that they were 
 to occupy convenient^ rooms in the capitolat night, and 
 in the recess of the court; that for the sake of exercise, 
 they might walk out in a body, or separately, if accom- 
 panied by the marshal, or one of his deputies; that they 
 might send or receive letters, if shown to the marshal ; 
 but that all letters should be laid before the court which 
 should appear to relate to the trial, and be designedly 
 sent to influence their verdict. These arrangements 
 were not adopted at this time, but their consideration 
 postponed, all parties being desirous to accommodate 
 the jury as much as possible, consistently with the 
 necessity of keeping them together, secure from intrusion. 
 
 On the question, how long the court ought to be oc 
 cupied every day during the trial, Mr. Burr expressed a 
 wish that the court should, for the sake of expediting 
 business, meet at as early, and adjourn at as late an hour 
 as possible. He referred to trials in England, where the 
 court sat twelve and sixteen hours every day ; and pro- 
 posed that the court should sit ten or twelve hours each 
 day. This was opposed as too long, fatiguing, and op- 
 pressive, in such warm weather. 
 
 The Chief Justice said that the court had no wish on 
 the subject, but was willing to consult the convenience 
 of the gentleman of the bar, and the accommodation of 
 the jury. 
 
 It was then proposed that the court should meet at 
 nine o'clock in the morning, and sit till four in the after- 
 noon ; this was finally determined. 
 
 Mr. Hay proceeded then to the examination of the 
 witnesses summoned on the part of the United States ; 
 General William Eaton was sworn, when 
 
 Mr. Burr rose and objected to this order of examin- 
 ing the witnesses. He said Mr. Hay had not stated the 
 nature of Mr. Eaton's testimony, but he presumed that 
 it related to certain conversations said to have happened 
 at Washington ; adding, that the propriety of admitting 
 any other testimony depended on the previous proof of 
 an overt act.
 
 ORDER OF EXAMINING WITNESSES. 509 
 
 Mr. Hay. Our object is to prove by him what is con- 
 tained in his deposition, which has been published. 
 
 Mr. Botts, Mr. Wickham, and Mr. Martin then called 
 on them to prove (what they said the court had already 
 determined to be the proper course of proceeding) an 
 overt act. They presumed that if the decision of this 
 court were to be respected, gentlemen should call on 
 the witnesses to prove facts before declarations. But if 
 gentlemen did not admit that this point had been already 
 sufficiently determined by the court, it would be their 
 duty to go into a recapitulation of the arguments, and 
 quotation of the authorities heretofore referred to, un- 
 less the court would say that the question had been 
 already decided. Their object was to save the time of 
 the court ; they knew that there had been a great deal 
 of war in the newspapers ; but they also knew from 
 actual experience and positive knowledge, that there had 
 been no war, in fact, in this country; and knowing that 
 there has been, in fact, no war, are we (they asked) to 
 be entertained by this and that idle story ; to waste 
 several weeks at great expense and trouble ; detain from 
 their homes the court, counsel, and jury, and keep the 
 prisoner in a very unpleasant situation ; and all for no 
 useful purpose, in the discussion of points entirely irrel- 
 evant to the question in issue ? Shall we be told in 
 justification of this great waste of time, and this immense 
 trouble, that they mistook the law and the testimony ; 
 that they expected to prove an overt act, but were dis- 
 appointed ? 
 
 They further contended that the material fact on which 
 all the merits of the controversy depended ought first 
 to be proved in every case ; that it would be irregular, 
 irrational, and illegal to admit corroborative testimony, 
 before proof was adduced of the principal fact which it 
 was intended to confirm. They admitted that it was 
 usual in most criminal prosecutions to call on the prosecu- 
 tor to begin his proof in support of either point, fact, or 
 intention, as he might deem proper; but, they said, 
 there were two reasons for this practice. First, every 
 prosecutor, learned in criminal law, began with proving 
 the fact on which principally the charge was founded. 
 Or, secondly, the fact was kno\vn to be susceptible of
 
 5io TRIAL OF AARON BURR. 
 
 clear proof, and therefore, there was an acquiescence on 
 the part of the accused with respect to the commission 
 of that fact. As in the case of a prosecution for murder, 
 the fact of killing ought certainly to be first proved ; but 
 it is generally so well known to have been committed by 
 the accused, that there is no question made on that 
 point ; and the defense arises from the motives or in- 
 ducement to the perpetration of the act whether justifi- 
 able or excusable. In such a case, it would be ridicu- 
 lous to inquire into the causes or circumstances of the 
 killing, till the death were proved ; but in all other cases 
 of a similar nature, where the fundamental fact was 
 denied, it must be proved before any confimatory proof 
 should be admitted. And wherever a prosecutor, from 
 inadvertence, want of experience, or any other cause, 
 began at the wrong end of the prosecution, and the ac- 
 cused himself did not see cause to acquiesce, he had a 
 right to apply to the court, to require proof of the principal 
 fact. They argued with great ingenuity and at consid- 
 erable length in support of this principle ; that the court 
 ought not to admit corroborative testimony, in anticipa- 
 tion of the principal fact to corroborate which it is 
 sought to be introduced. They referred to the former 
 decision of the court, relative to this same point on the 
 motion to hold Mr. Burr to bail in a greater sum of 
 money than had been at first required, and insisted that 
 the order of evidence was part of the law of evidence ; 
 that the court was to judge of the competency of testi- 
 mony, and had a right to stop any evidence which it 
 deemed immaterial; that it was of no avail to prove in- 
 tentions or designs before an overt act, an open deed of 
 war, had been established ; that, as in a writ of eject- 
 ment, it would be ridiculous to begin with proving the 
 boundaries before the title was proved, so it was im- 
 proper to begin with the declarations of Mr. Burr, or any 
 conversations, until the overt act were shown ; that these 
 declarations could only be admitted as confirmatory 
 evidence ; that it would be puculiarly hard on any indi- 
 vidual, to ransack and expose all the transactions of his 
 whole life in a court of justice ; that nothing was more 
 repugnant to justice, than to discuss, misrepresent, and 
 torture every conversation, however innocent, which he
 
 ORDER OF EXAMINING WITNESSES. 5 1 1 
 
 had held, and every declaration, however loose and inad- 
 vertent, which he had made at any time, and on any oc- 
 casion, before it was known whether any actual crime 
 could be proved against him ; that if the prosecutor 
 would thus proceed to develop the intention only, the 
 court had a right to stop him, and inquire the produc- 
 tion of evidence of the act itself. They made many 
 other obversations to the same purport. They cited 
 Foster, p. 246, and Judge Iredell's opinion on Fries's 
 Trial, the Case of Smith and Ogden, and Hardy's Case. 
 Their arguments on this doctrine are considerably con- 
 densed : because it was afterwards, with other points, 
 very fully and elaborately discussed on the motion made 
 by Mr. Wickham to arrest the evidence. 
 
 ."!/>. Wirt addressed the court on this subject, as fol- 
 lo-vs: 
 
 After expressing his regret at the unnecessary waste 
 of so much time, by so many motions and obstacles 
 thrown in the way of the prosecution by the accused, he 
 contended that the opposition made to the introduction 
 of this testimony, and to the arrangement of the attor- 
 ney for the United States, was unprecedented ; that 
 from the first foundation of courts to this day, it had 
 been the practice for the prosecutor to display the evi- 
 dence in his own way ; and that it manifested a disrespect 
 to the attorney, to require a departure from it in this 
 instance. I defy, said Mr. Wirt, the gentlemen to pro- 
 cure a single example from all the English authorities, 
 from the whole history of their jurisprudence, where the 
 attorney-general, or the counsel for the crown, has been 
 arrested in the introduction or arrangement of the evi- 
 dence, by the counsel of the defendant, and put on a 
 different course. I defy them to produce a single ex- 
 ample of any interference with the course adopted by 
 the prosecutor. It depends on himself, who knows the 
 evidence best, to state and exhibit it according to his 
 own judgment. If the whole evidence be adduced, the 
 result will be the same, in whatever manner it may be 
 arranged ; but the chronological order which the attor- 
 ney was about to pursue, unfolding events as they oc- 
 curred, is no less conformable to law and reason than 
 sanctioned by uniform experience. It develops this
 
 5 i2 TRIAL OF AARON BURR. 
 
 conspiracy from its birth to its consummation ; unravels 
 Ihe plot from its conception to its denoument, and traces 
 Aaron Burr step by step as he advanced and became 
 more bold, till the act was consummated by the assem- 
 blage on Blannerhassett's island. Is not this the lucid 
 order of nature and reason? Would you begin to nar- 
 rate a tale at the end of it ? If you were to write a his- 
 tory of the late revolution, would you begin at the siege 
 of York ? We wish to display the history of facts as they 
 happened, not only because it is the most luminous mode 
 of communicating them to the jury, but because it is our 
 duty to vindicate it as the right of the attorney, as con- 
 sistent with universal practice in prosecutions, both in 
 our own and every other civilized country. Examples 
 of a contrary practice might be found in England, if it 
 ever existed ; but no case can be shown in the courts 
 of Great Britain, where the counsel for a prisoner 
 has been permitted on a trial to invert the order of 
 chronology for his own purposes. I refer the court to 
 the trial of Hardy, pages 95, 96, 97. Though that case 
 is not directly applicable to the case now before the 
 court, I introduce it to show the independence of the 
 attorney-general of England, in conducting prosecutions 
 and introducing testimony as he thinks proper ; and to 
 prove that the opposition now made to our evidence is 
 unusual in that country. He introduced many letters 
 and papers against Hardy, and declarations of his asso- 
 ciates. In page 95, " Then followed the correspondence 
 between Mr. Hardy as secretary to the corresponding 
 society, and Mr. Gerald and Mr. Margarot, two of the 
 delegates at the convention in Edinburgh ; most of these 
 papers were printed also in the appendix to the report 
 of the committee of secrecy." They were produced by 
 a witness by the name of Gurnell. These papers being 
 all read by the officer of the court, Mr. Bowen said, 
 " My lords, we now propose, on the part of the crown, to 
 read the proceedings of the convention itself." To this, 
 Mr. Erskine, for the prisoner, objected ; because, though 
 the society had been- formed, the object of its formation 
 had not yet been heard of by evidence ; that if Margarot 
 and Gerald had exceeded the letter and spirit of their 
 instructions, the prisoner could not be affected by it
 
 ORDER OF EXAMINING WITNESSES. 513 
 
 that he was charged with no act of the convention 
 at Edinburgh. " He is charged,' said Mr. Erskine, p. 96, 
 " with having encompassed the death of the king ; to 
 prove that he had that wicked intention, the evidence 
 should be clear, and refer to the act itself; but no act 
 can be given in evidence, that does not go to show that 
 
 <-> . Mr - * 
 
 the prisoner had that encompassing in his own heart at 
 the time the act was committed." This shows his con- 
 viction, that proof of the intention may precede that of the 
 acts ; p. 97. " I must take care that the rules of law are 
 preserved inviolate. All that I mean to say is, that if Mr. 
 Hardy knew of the proceedings of this convention in 
 Edinburgh, then my objection falls to the ground in this 
 respect." The lord president agreed that the evidence 
 proposed, could not be adduced immediately against the 
 prisoner. He observed, however, that it might be let in ; 
 but that the application of it was another thing. At all 
 events, the prisoner might afterwards object that the del- 
 egates had exceeded their commission, and that objec- 
 tion would be valid so far. Mr. Bower. " Yes my lord, 
 we mean to show, in many instances, the prisoner's sub- 
 sequent approbation of the proceedings of the British 
 convention." The lord president. " That declaration 
 is enough to let in the evidence; the application of it 
 will depend on what will further appear." 
 
 Now, sir, how were the proceedings of this convention 
 -admitted as evidence? The court decided that they 
 should be first read, and applied afterwards by other tes- 
 timony to Hardy. Did the court tell the prosecutor, 
 " You shall stop, till you show a previous connection be- 
 tween them, and his subsequent approbation ; you shall 
 not read these proceedings?" The attorney told the 
 court, " I will adduce evidence to let the testimony in. I 
 will prove his approbation subsequently." The at- 
 torney's declaration of his intention to prove the appro- 
 bation of Hardy, was respected by the court, and those 
 proceedings were permitted to be read. Now, here was 
 an evident perversion of the rule tor which the gentle- 
 men contend. For, according to it, the subsequent ap- 
 probation of Hardy ought to have been proved before 
 the proceedings of the convention ; the admissibility of 
 the latter depended on the proof of the former. If 
 33
 
 514 TRIAL OF AARON BURR. 
 
 this approbation could not have been proved afterwards, 
 the reading of the proceedings would have been illegal 
 and the time employed in it lost. But the court did 
 not stop the attorney. It told him, on your declaration 
 that you will bring it home to Hardy, you may read the 
 evidence now. Yet this was a direct perversion of the 
 doctrine which gentlemen wish now to establish. Why 
 should not the same respect be paid to the declarations 
 of the attorney for the United States in this case? If 
 you permit us to proceed in the way we propose, we 
 shall neither violate principle nor waste time. Can there 
 be an overt act of treason without an intention to com- 
 mit it? Can any assemblage, however large, armed or 
 arrayed, however disorderly and tumultuous, commit an 
 act of treason, without intending it ? and ought not their 
 intention be proved ? The- rule of law excludes what- 
 ever does not touch the issue; but the intention is an 
 important feature in that issue. Every transaction 
 derives its character principally from the intention. It 
 is the great point in every case. Yet we are stopped 
 from explaining the intention by a pretended difficulty; 
 that its premature introduction tends to fetter the minds 
 of the jury, as if the proof of the intention preceding 
 that of the act, did not present a unity of action from 
 the birth to the consummation of the design. But we 
 are to be stopped. The objection manifests a want of 
 respect for the attorney, as if he knew not, better than 
 any other, the nature and bearing of the evidence, and 
 how to unfold it in the most regular way. It is im- 
 proper, not only for this reason, but because the mode 
 we propose is the most luminous and correct ; it is the 
 order of nature itself, as it traces the transactions from 
 beginning to end. We insist on its correctness for an- 
 other reason ; because the method they propose, can not 
 produce a single good effect. Gentlemen say that if we 
 prove the overt act first, we can be permitted to show 
 the design afterwards. They say that none is yet 
 proved. Suppose we prove no overt act in the opinion 
 of the court, how are the jury to be disposed of? Could 
 you send them out to deliberate, or could you discharge 
 them ? If the prosecutor state that he is about to pro- 
 ceed to prove the intention, can the court say that it
 
 ORDER OF EXAMINING WITNESSES. 515 
 
 does not prove the overt act, and that therefore they 
 will sent the jury out without hearing the evidence re- 
 specting the intention ? The court has no such powers. 
 The only power which the court possesses is, not to 
 direct the order in which the evidence shall be intro- 
 duced, but to instruct them on the law ; to direct 
 whether the evidence be competent or incompetent to 
 be laid before the jury ; to determine its weight or 
 sufficiency to prove the overt act is the exclusive pro- 
 vince of the jury. The court can not withhold from 
 them any evidence touching the issue. Will the court 
 stop us? Will the court or the jury decide on the issue? 
 All the authorities of the law concur in this, that the 
 whole testimony shall come before the jury; that they 
 have a right to hear the whole and decide on it. 
 
 The only inquiry now is, as to the order in which it 
 shall be introduced. We insist that the mode which we 
 propose 'is the most luminous, and most favorable to a 
 complete comprehension of the subject ; and that that 
 which they maintain, is the most confused and worst cal- 
 culated to attain that end. 
 
 I will refer you to the sentiments delivered by Judge 
 Iredell, on the trial of Fries, pages 174, 175 : Mr. Lewis 
 having stated a question, whether the overt act laid in 
 the indictment in a certain county, must not be proved 
 to the satisfaction of the jury, both as to fact and inten- 
 tion in the same county ; or whether the overt act did 
 not include both fact and intention ? Judge Iredell re- 
 plied, " that he considered Foster's Crown Law as settling 
 that point. When two witnesses are produced, who 
 prove the overt act laid in the indictment, there might 
 then be evidence from other counties respecting the in- 
 tention. This is the opinion of Judge Foster, and it is 
 my opinion. But there is another thing. It goes to a 
 point which is inadmissible ; it is not for the court to say, 
 whether there was a treasonable intention or act as charged 
 in the indictment ; that is for the jury to determine ; we 
 have only to state the law. We, therefore, should have 
 no right to give an opinion upon it. Again, if no evi- 
 dence could regularly be admitted out of the county, 
 until both the fact and intention were established where 
 the crime is Inid, the consequence would be, that there
 
 5 1 6 TRIAL OF AARON JB URR. 
 
 ought to be some way of taking the opinion of the 
 jury, whether they believed that the crime was com- 
 mitted at Bethlehem, before the court could proceed to 
 extraneous testimony ! This can not be done. A jury 
 must give a verdict on. all the evidence collectively; if 
 the evidence be admitted, then the jury is bound to re- 
 spect the weight of it ; the competency of that evidence 
 is for the court to decide ; but the jury must estimate 
 its weight." You can not stop the prosecutor after he 
 has given a part of the evidence. The jury must hear 
 the whole, and make up an opinion on the whole. 
 Neither the court nor the gentlemen can stop us. If we 
 prove an act in the course of the whole evidence, it will 
 suffice. If we prove either first, we must go a step be- 
 yond that, and prove the other, so as to show that it is a 
 complete overt act of treason. 
 
 Mr. Botts has referred to the opinion of Judge Iredell, 
 but certainly it can not be interpreted in his favor. The 
 judge is not contemplating the order of evidence; he 
 speaks of the evidence to the jury. The point before 
 him was, not the order of the evidence but the propriety 
 or impropriety of its introduction at all. The inquiry 
 was, whether the prisoner were guilty of levying war 
 against the United States, at Bethlehem, in Northamp- 
 ton county, and whether the evidence supported that 
 charge? and the judge told the jury, that, if the prisoner 
 went to the place where the act was committed with 
 treasonable intentions, the treason' was complete. He 
 investigated nothing but the propriety of the evidence. 
 Of its order, nothing was said. The court can not stop 
 the inquiry. Who is to judge of the evidence of the 
 overt act? The court? Will the court tell the jury^ 
 when they are satisfied that the overt act has been 
 proved ? When are we to be stopped ? Is the court to 
 decide at what stage of the evidence we are to be 
 stopped ? If the court stop us before we adduce all our 
 evidence, they usurp the power of deciding on the evi- 
 dence. Is this a part of your functions? I think not. 
 The whole evidence must be laid before the jury; the. 
 court taking care not to let in any but what is legal 
 The authority quoted by Mr. Botts, from Foster, 216. 
 has no sort of application to this point.
 
 ORDER OF EXAMINING WITNESSES. 517 
 
 The principle of the decision in Vaughan's case is not 
 against us. The indictment against Captain Vaughan, 
 was for adhering to the king's enemies on the high seas ; 
 and the overt act laid was his cruising on the king's 
 subjects, in a vessel called the " Loyal Clencarty." The 
 counsel for the prosecution offered evidence to prove, 
 that he had some time before cut away the custom house 
 barge, and had gone a cruising in her. This evidence 
 was opposed by the prisoner's counsel, and rejected by 
 the court ; " for were it true, it is no sort of proof, that 
 the prisoner had cruised in the Loyal Clencarty, which 
 was the only fact he was then to answer for." This case 
 only proves that on a trial on an indictment for any 
 specific treason, evidence of a previous intention tc 
 commit a distinct substantive treason is inadmissible ; or 
 in other words, that the evidence must prove the charge ; 
 it being a principle universally correct, than an offense 
 different from that which is charged, shall not be proved. 
 It was merely the rejection of evidence foreign to the 
 point in issue. It only proves that no evidence of what 
 is a different and distinct substantive treason of itself 
 shall be admitted to support any indictment. This 
 doctrine ought to have more effect in England than in 
 this country, since the abuses agaipst which it is in- 
 tended to secure, might there be more extensively in- 
 jurious than here ; but the same court allowed other overt 
 acts to be given in evidence, for the purpose of showing 
 the intention of the prisoner. It is, indeed, as Foster 
 says, a sound and just rule, that all evidence without the 
 issue, should be rejected ; but how can testimony show- 
 ing the intention of Aaron Burr, be said to be without 
 the issue ? It goes directly to prove the treason in the 
 indictment. 
 
 T.he doctrine in Smith and Ogden, p. 82, explains the 
 danger of going out of the statement in the indictment, 
 and shows the necessity of preserving the principle, 
 " that the evidence must be pertinent to the issue." 
 The exhibition of proof of Aaron Burr's intention is with- 
 in the rule established in the English courts, and the de- 
 cision in Smith and Ogden. 
 
 Mr. Wirt further remarked, that the former decision 
 y r this court on this point, which gentlemen had thought
 
 5 i8 TRIAL OF AARON BURR. 
 
 proper to refer to as decisive in their favor, could not be 
 rightly so considered : that two material circumstances 
 would justify this conclusion. First, the court at that 
 time wished to avoid such a discussion and display of 
 the evidence as might prejudice the public mind. Sec- 
 ond, the court then decided on the law and the fact, and 
 performed the duties of judge and juror. It might decide 
 when it was proper to stop or proceed ; be satisfied with 
 the testimony already introduced, or require more. But 
 that now the jury were to decide on the guilt or innocence 
 of the accused, the court had only to state the law 
 on the different points arising in the course of the 
 trial. 
 
 Mr. Lee in substance contended, that the act, an open 
 deed of war, committed in the full view of the world, on 
 the loth day of December, on Blannerhassett's island, it 
 it ever existed, was susceptible of clear proof; that the 
 time, place, and manner, of committing the offense, as 
 laid in the indictment, were material to be proved ; that 
 it was not pretended that the counsel for the prosecution 
 had any right to exhibit proof of any other treason than 
 that specified in the indictment ; that the effect of the facts 
 to be proved, must be discussed hereafter, but that the 
 proof of them, as preliminary to, and the foundation of 
 other testimony, was indispensably requisite ; that it was 
 difficult to de'scribe the absurdity to which the admission 
 of other evidence, before proof of the acts authorizing 
 that admission, would lead ; that it would be almost as 
 inconsistent and improper, as to attempt to make the 
 effect precede its cause, or, according to the vulgar 
 phraseology, to put the cart before the horse ; that it 
 would be changing the rules of law ; that a great deal ot 
 time might be occupied in adducing a great deal of tes- 
 timony, to charge a man accused of murder with malig- 
 nant intentions, when the person said to be murdered 
 was actually alive ; or of arson, when the house alleged 
 to be burnt was standing ; that the act existed, or it did 
 not. If it existed, it ought to be immediately proved : 
 if it did not exist, they ought magnanimously to yield, 
 as they could not produce that testimony which might 
 render all other evidence applicable. 
 
 Mr. Lee further dilated with great force and ingenu-
 
 SPEECH OF MR. MARTIN. 519 
 
 ity ; but, for the reasons before mentioned, his arguments 
 are necessarily condensed. 
 
 Mr. Martin spoke to the following effect : 
 I shall take the liberty of adding a few observations, to 
 what has been already said. 
 
 The question is, whether the prosecutors must not 
 prove an overt act in the first instance, before any other 
 evidence can be introduced ? We contend that they must, 
 and that law and reason support us. They admit that 
 Mr. Burr must be proved to have committed one or more 
 overt acts ; and that the court and jury must be satisfied 
 that these acts were committed with a treasonable de- 
 sign ; that he levied war against the United States, with 
 intent to destroy the constitution and government there- 
 of. This is the true construction of the words " levying 
 war." There can be no " levying war " unless the object 
 and desigfn be the subversion of the government of the 
 United States. It is admitted that both these things 
 must be proved, before he can be found guilty. The 
 question which results necessarily is, which of them is 
 first to be proved ? The very eloquent and ingenious 
 counsel admit, that it is not of much consequence in 
 which order these facts are to be established ; but insist 
 on proceeding as they have done, for two reasons ; first, 
 because it is the most correct and usual mode ; and, sec- 
 ondly, because it is a mark of disrespect to the attorney 
 of the United States, to interfere with his arrangement 
 of the evidence. As to the second cause, which I think 
 proper to answer first, I will only say, that we can not 
 conceive why they should have construed the perfor- 
 mance of a professional duty into a manifestation of dis- 
 respect for the gentleman. We excercised a right, and 
 discharged a duty to our client, in opposing what we 
 deemed an illegal proceeding. How, then, can he con- 
 sider himself treated disrespectfully ? He certainly has 
 no right to view it in that light. We had no such inten- 
 tion ; and I will say further, that if he conduct himself 
 with that mildness and decorum which ever becomes a 
 public prosecutor, he shall receive from us every mark of 
 respect. As to the first and principal reason urged by 
 gentlemen in support of this mode of conducting the 
 prosecution, that it is the most correct order of proceed-
 
 5 2G TRIAL OF AARON BURR. 
 
 ing ; it might be proper, if it were an indictment for a 
 conspiracy to commit treason, to proceed in the first in- 
 stance to prove the intentions ; but in this prosecution 
 for treason for " levying war," I confidently say, that the 
 most natural order of proceeding is, to begin with proving 
 the material act, without which all other evidence whatso- 
 ever would be irrelevant and improper. In Great 
 Britain, a conspiracy to commit treason is made treason 
 by a particular statute ; that is, " compassing the death 
 of the king," is made high treason. In that particular 
 instance, the intention, the mere act of the mind is 
 rendered, what it is in no other case without an act in 
 pursuance of it, criminal and punishable. In that case, 
 which is in fact a conspiracy to commit treason, the in- 
 tention of the heart, the formation of the design in the 
 mind, is the very crime ; and the correct mode of pro- 
 cedure on a trial for it, would be to begin to show the 
 conspiracy, the number of persons engaged in it, the 
 time when, and place where, they did conspire, and other 
 circumstances connected with the conspiracy ; but this 
 applies only to a prosecution on an indictment for com- 
 passing the death of the king. In every other case, 
 where a material act constitutes the crime, the prosecu- 
 tor must begin by proving that act, either by positive 
 testimony, or strong circumstances, to show that the 
 party accused committed it. In a prosecution for trea- 
 son for "levying war," after the cause is opened, proof 
 of the act should be adduced, as is done in every other 
 criminal case. On a trial for murder, the act of killing 
 must first be proved, if not admitted ; in a prosecution 
 for burglary, the nocturnal breaking into the house must 
 be proved ; in larceny, the taking and carrying away 
 must be proved ; and in a prosecution for robbery, it is 
 necessary to prove the taking by force and violence from 
 the person, before any testimony can be admitted re- 
 specting the felonious intention. The true and natural 
 order in all prosecutions is to show first that the prin- 
 cipal act on which the charge depends has been com- 
 mitted. 
 
 The gentleman who opened the cause argued it on 
 the principles of common sense, which he says is some- 
 times in discussion not adhered to by lawyers. Let us
 
 SPEECH OF MR. MARTIN. 521 
 
 examine whether he has himself verified this sentiment, 
 and how his doctrine applies to this case. Does not 
 common sense require that the act which is the very 
 foundation of the charge, should be proved in the first 
 instance ? Would it not be absurd to go into evidence 
 to show that the act was committed with a treasonable 
 intent, without any testimony to prove that the act was 
 committed at all? Is it rational to inquire into the de- 
 sign and intention with which an act has been performed, 
 without proving that it has been performed ? 
 
 The gentleman who spoke so eloquently against our 
 motion, says that the jury must judge of the weight of 
 evidence, and that the court can not stop the prosecutor 
 in his examination of witnesses, and command the jury 
 to find such a verdict as it pleases to require ! The gen- 
 eral principle is not controverted by us, but we deny the 
 inferences which he has drawn from it. The jury are 
 certainly to decide on the weight of evidence, but the 
 court is to pronounce the law, on what is or is not legal 
 evidence. Suppose only one witness were introduced to 
 prove the overt act, and it were candidly declared by 
 the counsel for the prosecution that he could prove it by 
 no other witness, would he be permitted then to pro- 
 ceed to examine the intentions of the party accused ? 
 Would it not then be the duty of the court to stop 
 him, and tell the gentlemen of the jury that there was 
 no evidence to convict the accused ; that it would be in 
 vain to proceed further, since it was admitted that the 
 constitutional requisition of two witnesses to prove the 
 overt act, could not be complied with ? We do not con- 
 tend that the court has a right to tell the jury, " You 
 must acquit the party ;" but it is undoubtedly its duty 
 to expound and enforce the law, and this is all we want 
 to be done. 
 
 Permit me again to recur to the case of a trial for mur- 
 der. A great deal of the time of the court might be 
 taken up to prove malice on the part of the person in- 
 dicted, when in truth no act could be proved, when it 
 did not and could not appear that the man supposed to 
 have been murdered was actually dead! This would be 
 a fruitless waste of time. If there be no evidence that 
 the man is dead, there ought to be no inquiry into the
 
 522 TRIAL OF AARON BURR. 
 
 design inducing the commission of the overt act, the act 
 of killing. If the death be proved, then the intention 
 and other circumstances are to be examined, and the 
 jury must decide whether he be guilty or not. This is 
 the natural and legal order of proceeding in criminal 
 prosecutions. Hardy's case confirms and establishes the 
 propriety of this mode of proceeding. The first in- 
 quiry on that trial was respecting the act charged in the 
 indictment. 
 
 Thus, if A. were indicted for killing B. would the 
 legal order be to prove, in the first instance, that long 
 and frequent animosities had existed between them ? 
 The counsel for the prosecution must first prove that B. 
 has been killed by somebody. If there be any doubt as 
 to the person who killed him, it must be proved who did 
 kill him. If it be proved that A. killed B., then, and not 
 till then, more evidence is necessary to explain the mo- 
 tives and circumstances of the killing ; because the law 
 presumes prima facie, that a man who kills another, 
 does it with malice prepense, and, therefore, he must 
 take off by his proof this presumption of the law. In 
 the case of larceny, as, for instance, for horse stealing, 
 you prove the horse to have been taken from the owner, 
 and found in possession of the party accused. After prov- 
 ing the principal fact, you go into evidence of the inten- 
 tion with which the horse was taken. Does the public 
 prosecutor go into proof of the felonious intention before 
 proving that the horse has been taken ? So in the case of 
 burglary, is it the natural order of testimony to prove 
 that the accused intended to break and enter into the 
 house, in the night time, to steal or to commit any other 
 felony? Is it not the most natural order, to prove first, 
 that he did actually break and enter the house, and then, 
 by evidence, to show that he entered with no other view 
 than to commit a felony. So on a trial for treason, for 
 importing false or base foreign coin, knowing it to be 
 such, does the prosecutor first call witnessess to prove, 
 that the prisoner knew the coin to be base ? Does he 
 not first prove the importation ? Would it not be pre- 
 posterous to go into proof of his knowledge of its base- 
 ness, without proving that he imported it ? The same 
 remark applies to a prosecution for passing false orcoun-
 
 SPEECH OF MR. MARTIN. 523 
 
 terfeit coin, knowing it to be false or counterfeit. Would 
 not the prosecutor first prove that he passed it, and then 
 show by testimony, that he knew it to be base when he 
 passed it? In both cases, he first proves the principal 
 fact, without which all other testimony would be useless ; 
 and then proves the circumstances which show that the 
 prisoner must have known the money to be base when 
 he imported or passed it. They charge us with having 
 committed treason in "levying war" against the United 
 States. This charge is too vague, and must be sup- 
 ported by full testimony according to the well known 
 principles of the law. Here let me mention, that the 
 question, whether any other act committed at a time and 
 place different from those stated in the indictment can 
 be introduced in evidence on this trial, is a distinct ques- 
 tion from that now before the court ; which is merely, 
 what is the proper order of introducing the evidence in 
 support of the indictment ? 
 
 Let me advert to the case of Hardy. It was an in- 
 dictment for compassing the death of the king, which as 
 I have already mentioned, is distinguishable from all 
 other cases in this, that the intention constitutes the 
 crime. In that case, " what is the natural and lucid 
 order " of evidence, is expressly laid down. There were 
 several persons prosecuted in the same indictment. It 
 charged them, " First, with a conspiracy to compass or 
 effect the king's death. Secondly, with endeavoring to 
 effect that object, by means of an insurrection, or incit- 
 ing the insurrection with that settled design." The 
 court determined that the legal order of proceeding and 
 admitting evidence, after having proved the existence of 
 the conspiracy, was to prove the connection of the per- 
 ,son accused with the conspirators ; and then to charge 
 him with the acts of the conspirators ; that after proving 
 his connection with them, he was liable to be charged' 
 with any of their acts. In that case, the intention con- 
 stituted the crime, and the* connection between the con- 
 spirators was first proved, before the acts of one were 
 admitted to be given in evidence against another. But 
 this mode of proceeding is only admitted in the case of 
 a conspiracy, or an indictment for imagining and com- 
 passing the king's death. But in an indictment " levy- 
 
 t
 
 524 TRIAL OF AARON BURR. 
 
 ing war," the acts of one person have never been ad- 
 mitted to be given in evidence against another; the 
 overt acts must be ptoved against every individual ac- 
 cused. This distinction has been established by a series 
 of determinations of the most able and correct judges. 
 But if the acts of one can not be charged or given in 
 evidence against another, much less can his words or 
 declarations. Sir, the declarations of the party accused 
 are not legal evidence against him. Here they have 
 brought witnessess from remote parts of the union, to 
 prove the declarations of Mr. Burr. I contend, that till 
 an act of war shall have been proved, these declarations 
 are utterly inadmissible against him. The gentlemen 
 admit themselves that they are improper, unless as corro- 
 borative evidence : because the constitution requires that 
 the confession of the person accused shall be in open 
 court, before a conviction shall follow. I am convinced, 
 that all the declarations in the world can only be re- 
 ceived as corroborative evidence of facts proved within 
 the district. I do not wish to enlarge the question, or to 
 waste the time of the court in discussing questions touch- 
 ing acts committed out of the district, or declarations 
 explanatory of them. If any such evidence should be 
 offered in the progress of this investigation, the court 
 will of course stop it. 
 
 I agreed with the attorney of the United States, in 
 expressing my approbation of some parts of the opinion 
 of Judge Iredell, on the trial of Fries, which applied im- 
 mediately to the case before the court. I shall agree, 
 with heart and hand, that no words or declaration of a 
 person accused of this crime, ought to be admitted in 
 evidence, unless they are preceded by proof or facts. 
 One part of his opinion has an immediate application to 
 the question now before the court, where he says, " that* 
 after the overt act laid in the district is proved by two 
 witnesses, it is proper to go into evidence to show the 
 course of the prisoner's conduct at other places, and the 
 purpose for which he went to that place where the trea- 
 son is laid, and if he went with a treasonable design, then 
 the act of treason is conclusive." But still this evi- 
 dence is improper, till after the overt act is proved. 
 From another part of the same opinion, which imme-
 
 SPEECH OF MR. MARTIN. 525 
 
 diately follows, in pages 171, 172, of that trial, he says, 
 " We now come to the confession of the prisoner, volun- 
 tarily made before Judge Peters. Here is a point of law 
 relied on by the prisoner's counsel, that no man should 
 be convicted of treason, but on the evidence of two wit- 
 nesses, or upon confession in open court. This is the 
 provision in England as well as here, and the meaning 
 is, that no confession of the prisoner, independent of 
 two witnesses, or without the facts have been estab- 
 lished by two witnesses, should be sufficient to convict 
 him ; but if two witnesses have proved a fact, the 
 confession of the party may be received by way of 
 confirmation, of what has before been sworn to. In 
 former days, in England, it was allowed, that con- 
 fession out of court, and the proof of the witnesses 
 should be sufficient to warrant a conviction, but hap- 
 pily our constitution would not admit it, if an hundred 
 would swear to it ;. that danger is wisely avoided. Evi- 
 dence may sometimes be given, which may be doubtful. 
 and want corroboration." " But if the confession of the 
 prisoner go to confirm the evidence, if sworn to by two 
 witnesses at least, it may be received:" He then adds, 
 what seems to be decisive on this point: ''but unless it 
 do go to corroborate other testimony, I do not think it 
 admissible." This shows clearly, that the testimony 
 now offered, is not admissible as no act has been yet 
 proved ; and that his conduct at other places, and the 
 intention with which he went to the place where the 
 imputed treason is laid, is not proper to be adduced in 
 evidence. " Confessions out of court were formerly ad- 
 mitted ;" ''but that danger is now wisely avoided." I 
 am sure, that if we were to go into an inquiry as to the 
 admissibility of this evidence, the plain words of the 
 constitution ought to satisfy us at once, that " no per- 
 son shall be convicted of treason, unless on the testimony 
 of two witnesses to the same overt act, or on confession 
 in open court." No language can be more explicit. An 
 insuperable objection to this kind of evidence, is, that 
 acts committed out of the district might be introduced 
 by it. We have said that General Eaton's testimony 
 does not relate to any acts committed anywhere, but to 
 mere declarations out of the district. We sincerely
 
 526 TRIAL OF AARON BURR. 
 
 wish to avoid any anticipation of his evidence but, since 
 gentlemen will impose it on us, and they admit it to be 
 similar to his ex parte deposition which has been al- 
 ready published, it is our duty to insist that the attorney 
 for the United States shall produce no evidence of 
 declarations or corroborative testimony of any kind, till 
 he shall first prove the material facts which admit of 
 this confirmation. It is neither reasonable nor constitu- 
 tional, that acts out of the district should be given in 
 evidence. It might be a mere waste of the time of the 
 court, jury, counsel and witnesses, to enter into a long 
 and elaborate examination and discussion, which would 
 be totally irrelevant, if no act could be proved. As 
 the relevancy of all other testimony depends on the 
 proof of the act, every principle of reason and law re- 
 quires, that it should be first used as the foundation of 
 the rest. 
 
 On the trial of Fries, the first witness who was sworn 
 was interrogated as to the act of "levying war;" 
 whether he had been at Bethlehem at the time laid in 
 the indictment? and whether he had seen the acts com- 
 mitted? that is, the rescue of several persons lawfully in 
 the custody of the marshal, and other acts of violence 
 connected with the rescue. Every other witness was 
 interrogated in like manner; first, as to the acts com- 
 mitted; and having established the fact that the accused 
 had committed the overt act, then other evidence of a 
 corroborative nature was introduced. In p. 37, the 
 examination of Colonel Nichols the marshal is stated, 
 and he particularly describes* the acts committed by the 
 prisoner. The testimony now offered would be at 
 present immaterial, because the act of war to which it 
 applies is not proved. 
 
 On this point, I beg leave to refer to the sentiments 
 of Judge Foster, in his Crown Law, p. 246, which have 
 been commented on already. After stating that on the 
 trial of Vaugham for treason, for adhearing to the king's 
 enemies, and cruising in a vessel called the " Loyal Clen- 
 carty," the court rejected evidence to prove that he had 
 some time before cut away the custom-house barge and 
 had gone a cruising in her: he says, that "the rule of 
 rejecting all manner of evidence, in criminal prose-
 
 SPEECH OF MR. MARTIN. 527 
 
 cution, that is foreign to the point in issue, is founded 
 on sound sense and common justice. For no man is 
 bound at the peril of life or liberty ; fortune or reputa- 
 tion, to answer at once and unprepared, for every action 
 of his life. Few even of the best of men, would choose 
 to be put to it." Judge Patterson, on an occasion very 
 much like this, speaks with peculiar force and propriety. 
 On the trial of William Smith, when the defendant's 
 counsel moved to postpone the trial on account of the 
 absence of some witnesses said to be material, " The 
 evidence (says he) which is offered to a court must be 
 pertiment to the issue, or in some proper manner con- 
 nected with it. It must relate and be applied to the 
 particular fact or charge in controversy, so as to consti- 
 tute a legal ground to support, or a legal ground to 
 resist the prosecution. For it would be an endless task, 
 and create inextricable confusion, if parties were suf- 
 fered to give in evidence to the jury, whatever self-love, 
 or prejudice, or whim, or a wild imagination might sug- 
 gest. This is an idea too extravagant to be entertained 
 by reflecting and candid men ; as it would, if carried 
 into practice, quickly prostrate property, civil liberty, 
 and good government. Law would become a labyrinth, 
 a bottomless pit ; and courts would be perverted from 
 their original design, and turned into instruments of in- 
 justice and oppression. A line must be drawn a line 
 has been drawn on such occasions which it becomes the 
 duty of judges to pursue. If there be no line, anything 
 and everything may be given in evidence. Where shall 
 we stop? What is the rule which we find to be laid 
 down for our guidance? The evidence must be perti- 
 nent' to the issue; the witnesses must be material. If 
 the evidence be not pertinent, nor the witnesses ma- 
 terial, the court ought not to receive either." 
 
 A reason given by other respectable authors, for 
 this doctrine is, that the jury may be embarrassed 
 and perplexed by evidence not pertinent to the issue: 
 and that the accused* would be unapprised and with- 
 out notice of the charges to be thus exhibited 
 against him, and consequently unprepared to meet the 
 evidence which he is to resist. He can not, as Foster 
 says, be prepared to answer at once for every action of
 
 528 TRIAL OF AARON BURR. 
 
 his life. This objection applies most forcibly in this 
 case, where the complicated evidence of one hundred and 
 thirty-five witnesses is to be introduced and considered. 
 Notwithstanding the prejudices and alarm which have 
 been excited in this country, are you sure that they were 
 not all without any cause to justify them ? If Mr. Burr's 
 plans were most meritorious, predicated on principles of 
 an honorable war, and only to be carried on in the event 
 of his country being engaged in it, and with a view to 
 the emancipation of millions who are now in bondage, 
 with a design to take the bonds of slavery off many mil- 
 lions, he would have merited the applause of the friends 
 of liberty and of posterity. This I contend was the 
 case; but his friends may now pray that he may not 
 meet the fate that Washington himself would have met, 
 if the revolution had not been established. If you 
 should permit the witnesses to go into complicated tales 
 of schemes and plots of severing the union, resting 
 solely on the imputed intentions of the accused (and yet 
 the result of a long and elaborate inquiry would be that 
 there was no act of war), it would be worse than a mere 
 waste of time, and would expose, without any possible 
 useful object, the private views and intentions of the 
 accused ; prejudices would be increased ; the intention 
 would be taken for the deed, under the influence of im- 
 pressions not to be resisted when the act itself was in- 
 complete. The jury ought not to be troubled with evi- 
 dence which is wholly immaterial till the overt act be 
 proved. I will ask, whether on principles of common 
 sense any objection can be urged against the production 
 of the evidence which we call for if it can be produced? 
 What do we ask? Do we ask anything that will em- 
 barrass the prosecution ? Not the slightest inconven- 
 ience can arise from their producing proof of the act, 
 if there ever were such an act. The , witnesses who 
 know the act can be called on, and their testimony will 
 be distinct from all the other evidence. What will be 
 their alternative after a solemn argument ? If we sus- 
 tain our position that the order of evidence is part of 
 the law of evidence, and that before the intention the 
 act itself must be established, is it their purpose to go 
 into evidence of the intention before the act, or know-
 
 SPEECH OF MR. MARTIN. 529 
 
 ing it not to exist, because it is the wish of the court 
 that it should be otherwise ? I can not suppose this to 
 be their purpose; I have too good an opinion of the 
 gentlemen, notwithstanding appearances, to suppose that 
 they intend to do so. But if it be so, the court will de- ' 
 cide without anticipating such conduct ; -expecting that 
 if the act exist they will prove it, or if not, that they 
 will yield as they ought. 
 
 The principles of law and of convenience, and the 
 natural reason of every man, all concur in requiring that 
 the first part of the evidence to be proved should be the 
 act. If it be the first proved, no inconvenience will re- 
 sult, from it. The rules of law should be general. If 
 this principle of reason and convenience be departed 
 from in this instance, it may be in every other; and the 
 most manifest and dangerous inconveniences in other 
 cases (if not in this) must result, if the court will per- 
 mit gentlemen to indulge what Judge Patterson calls 
 " self-love, prejudice, or whim, or the suggestions of a 
 wild imagination." 
 
 I will not omit another authority, which may not be 
 directly applicable to the distinction now before the 
 court; but if applicable, it maintains the same principle 
 in directing the order of the evidence. 1st East's Crown 
 Law p. 96-97 : " In this, as in other cases, founded on 
 conspiracy or agreement among several, to act in concert 
 together for a particular end, must be established by 
 proof, before any evidence can be given of the acts of 
 any person, not in the presence of the prisoner, and this 
 must be generally done by evidence of the party's own 
 acts, and can not be collected from the acts of others, in- 
 dependent of his own." "When the connection between 
 the parties is once established, of which the court must 
 in the first instance judge, previous to the admission of 
 any consequential evidence to affect the prisoner by the 
 acts of others, to which he was not a party or privy, 
 then whatever is done in pursuance of that conspiracy, 
 by one of the conspirators, though unknown perhaps to 
 the rest at the time, is to be considered as the act of all." 
 This at least ascertains that the order of evidence is 
 part of the law of evidence ; and that facts may be im- 
 portant and material in one part of a prosecution, which 
 
 44
 
 530 TRIAL OF AARON BURR. 
 
 in another may be entirely inadmissible. As in the case 
 of a conspiracy, before you can introduce any testimony 
 against a prisoner, of the acts of any other of the con- 
 spirators, you must prove an association between them ; 
 so in this case, before you are permitted to introduce 
 evidence of the intention being treasonable, you must 
 prove an act of war. Before you speak of a treasonable 
 intention, you must go on to prove the act which makes 
 it so. The overt act must be proved by direct evidence, 
 and confirmed by confirmatory evidence. 
 
 Mr. Martin referred to 3 Gilbert, 8 1 6, and to several 
 other authorities, to show that when " levying war " is the 
 charge laid in an indictment for treason, the rule of pro- 
 ceeding is the same as in murder, larceny, and burglary, 
 where the evidence must rise out of the facts first proved, 
 if not admitted. He again referred to the case of 
 the King v. Vaughan, who was indicted for treason 
 in adhering to the king's enemies, by cruising against 
 his subjects, in the vessel called the " Loyal Clen- 
 carty," and whose acts, Mr. Martin said, were proved be- 
 fore any evidence of any other kind ; he also cited the 
 case of Demaree and Purchase, who were indicted for 
 treason, in pulling down meeting-houses, 8 State Trials, 
 219, and the case of the King v. Messenger and others, 
 for pulling down bawdy-houses, 2 State Trials, 585. The 
 first proof adduced in both cases, was the act of pulling 
 down the houses; in the former case, the overt act was 
 beginning to pull down all conventicles or meeting-houses ; 
 and in the latter, beginning to pull down and destroy all 
 bawdy-houses. The universality of the intention con- 
 stituted this crime, which is a species of treason in "levy- 
 ing war." The design to pull down and destroy all con- 
 venticles and all bawdy-houses, evidenced by the open 
 deed of beginning to pull down and destroy, was 
 made treason by the statute ; and although there 
 could be no treason without this universal intention, yet 
 no proof of their intention, or of their declarations on 
 the subject, was ever attempted to be introduced, till the 
 fact of beginning to pull down and destroy was first es- 
 tablished. Mr. Martin insisted, that nothing was more 
 consonant to common sense, than to prove the act before 
 the 4< quo animo ;" that until the overt act were estab-
 
 OPINION AS TO ORDER OF EVIDENCE. 531 
 
 lished, and the time and place of its commission were 
 fixed, it was impossible for the court or jury to deter- 
 mine with correctness and propriety, the " quo animo," 
 or design wherewith it had been done. He therefore 
 hoped that the prosecutor would not be permitted to 
 proceed further till he proved some overt act. 
 
 TUESDAY, August 18, 1807. 
 
 The Chief Justice pronounced the following opinion, 
 on the question last argued, relative to the order of evi- 
 dence. 
 
 Although this is precisely the same question relative 
 to the order of evidence, which was decided by this court, 
 on the motion to commit, yet it is now presented under 
 somewhat different circumstances, and may, therefore, 
 not be considered as determined by the former decision. 
 At that time no indictment was found, no pleadings ex- 
 isted, and there was no standard by which the court could 
 determine the relevancy of the testimony offered, until 
 the fact to which it was to apply should be disclosed. 
 There is now an indictment specifying the charge which 
 is to be proved on the part of the prosecution ; there is 
 an issue made up which presents a point to which all the 
 testimony must apply, and consequently it is in the pow- 
 er of the court to determine, with some accuracy, on the 
 relevancy of the testimony which may be offered. 
 
 It is contended in support of the motion which has 
 been made, that, according to the regular order of evi- 
 dence and the usage of courts, the existence of the fact 
 on which the charge depends ought to be shown, before 
 any testimony explanatory or confirmatory of that fact 
 can be received. Against the motion, it is contended 
 that the crime alleged in the indictment consists of two 
 parts, the fact and the intention ; that it is in the discre- 
 tion of the attorney for the United States, first to adduce 
 the one or the other ; and that no instance has ever oc- 
 curred of the interference of a court with that arrange- 
 ment which he has thought proper to make. 
 
 As is not unfrequent, the argument on both sides ap- 
 pears to be, in many respects, correct. It is the most 
 useful and appears to be the natural order of testimony
 
 532 TRIAL OF AARON BURR. 
 
 to show, first, the existence of the fact respecting which 
 the inquiry is to be made. It is unquestionably attended 
 with this advantage, there is a fixed and certain object 
 to which the mind applies with precision all the testimony 
 which may be received, and the court can decide with less 
 difficulty on the relevancy of all the testimony which 
 may be offered ; but this arrangement is not clearly shown, 
 to be established by any fixed rule of evidence, and no 
 case has been adduced in which it has been forced by the 
 court on the counsel for the prosecution. 
 
 On one side it has been contended that by requiring 
 the exhibition of the fact in the first instance, a great 
 deal of time may be saved, since there may be a total 
 failure of proof with respect to the fact : and this argu- 
 ment has been answered by observing, that should there 
 even be such failure, they could not interpose nor arrest 
 the progress of the cause, but must permit the counsel 
 for the prosecution to proceed with that testimony which 
 is now offered. 
 
 Levying of war is a fact which must be decided by the 
 jury. The court may give general instructions on this, 
 as on every other question brought before them, but the 
 jury must decide upon it as compounded of fact and law. 
 Two assemblages of men not unlike in appearance, pos- 
 sibly may be, the one treasonable and the other inno- 
 cent. If, therefore, the fact exhibited to the court and 
 jury, should, in the opinion of the court, not amount to 
 the act of levying war, the court could not stop the prose- 
 cution ; but must permit the counsel for the United States 
 to proceed to show the intention of the act, in order to 
 enable the jury to decide upon the fact, coupled with the 
 intention. 
 
 The consumption of time would probably be nearly the 
 same, whether the counsel for the prosecution com- 
 menced with the fact or the intention, provided those 
 discussions, which respect the admissibility of evidence 
 would be as much avoided in the one mode as in the 
 other. The principal importance which, viewing the 
 question in this light, would seem to attach to its decision, 
 is the different impressions which the fact itself might 
 make, if exibited at the commencement or the close of 
 the prosecution.
 
 OPINION AS TO ORDER OF EVIDENCE. 533 
 
 Although human laws punish actions, the human mind 
 spontaneously attaches guilt to intentions. The same fact, 
 therefore, maybe viewed very differently, where the mind 
 is prepared by a course of testimony, calculated to im- 
 press it with a conviction of the criminal designs of the 
 accused, and where the fact is stated without such pre- 
 paration. The overt act may be such as to influence the 
 opinion, on the testimony afterwards given, respecting 
 the intention ; and the testimony respecting the intention, 
 may be such as to influence the opinion on the testimony 
 which may be afterwards given respecting the overt act. 
 
 On the question of consuming time, the argument was 
 placed in one point of view by the counsel for the defense, 
 which excited some doubt. The case was supposed of 
 one witness to the overt act, and a declaration that it 
 could be proved by no other. The court was asked 
 whether the counsel would be permitted then to proceed 
 to examine the intentions of the accused, and to do 
 worse than waste the time of the court and jury, by ex- 
 posing, without a possible object, the private views and 
 intentions of any person whatever ? 
 
 Perhaps in such a case the cause might be arrested ; 
 but th"is does not appear to warrant the inference that it 
 might be arrested, because the fact proved by the two 
 witnesses did not appear to the court to amount to the 
 act of levying war. In the case supposed, the declara- 
 tion of the law is positive, and a 'point proper to be re- 
 ferred to the court occurs, which suspends the right of 
 the jury to consider the subject, and compels them to 
 bring in a verdict of not guilty. In such a case, no tes- 
 timony could be relevant, and all testimony ought to be 
 excluded. Suppose the counsel for the prosecution 
 should say that he had no testimony to prove the treas- 
 onable intention: that he believed confidently the object 
 of the assemblage of men on Blannerhassett's island to 
 be innocent : that it did not amount to the crime of 
 levying war ; surely it would be a wanton and useless 
 waste of time to proceed with the examination of the 
 overt act. When such a case occurs, it can not be 
 doubted that a nolle prosequi will be entered, or the jury 
 be directed with the consent of the attorney, to find a 
 "verdict of not guilty.
 
 534 TRIAL OF AARON BURR. 
 
 It has been truly stated that the crime alleged in the 
 indictment consists of the fact and of the intention with 
 which that fact was committed. The testimony disclos- 
 ing both the fact and the intention must be relevant. 
 The court finds no express rule stating the order in 
 which the attorney is to adduce relevant testimony, nor 
 any case, in- which a court has interfered with the ar- 
 rangement he has made. No alteration of that arrange- 
 ment, therefore, will now be directed. 
 
 But it is proper to add that the intention which is 
 considered as relevant in this stage of the inquiry is the 
 intention which composes a part of the crime, the inten- 
 tion with which the overt act itself was committed ; not 
 a general evil disposition, or an intention to commit a 
 distinct fact. This species of testimony, if admissible 
 at all, is received as corroborative or confirmatory testi- 
 mony. It does not itself prove the intention with 
 which the act was performed, but it renders other testi- 
 mony probable which goes to that intention. It is ex- 
 planatory of, or assistant to, that other testimony. 
 Now it is essentially repugnant to the usages of courts, and 
 to the declaration of the books by whose authority such 
 testimony is received, that corroborative or confirmatory 
 testimony should precede that which it is to corrobo- 
 rate or confirm. Until the introductory testimony be 
 given, that which is merely corroborative is not rele-- 
 vant, and of consequence, if objected to, can not be 
 admitted without violating the best settled rules of 
 evidence. 
 
 This position may be illustrated by a direct application 
 to the testimony of General Eaton. So far as his testi- 
 mony 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 exeeuted in the Gity 
 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
 
 TESTIMONY OF GENERAL EATON. 535 
 
 was evil. It is merely additional or corroborative testi- 
 mony, and therefore, if admissible at any time, is only 
 admissible according to rules and principles which the 
 court must respect, after hearing that which it is to con- 
 firm. 
 
 The counsel will perceive how many questions respect- 
 ing the relevancy of testimony, the arrangement pro- 
 posed on the part of the prosecution will most probably 
 produce. He is, however, at liberty to proceed according 
 to his own judgment, and the court feels itself bound to 
 exclude such testimony only as, at the time of its being 
 offered, does not appear to be relevant. 
 
 GENERAL WILLIAM EATON was then called to give his 
 evidence. He inquired whether he might be permitted 
 to have a recurrence to- his notes? 
 
 Chief Justice. Were they written by yourself? 
 
 Mr. Eaton. They were taken and copied by me from 
 others, which are at my lodgings. 
 
 Mr. Burr's counsel objected, unless he had the original 
 notes. 
 
 Mr. Wickham. At what time were they taken ? 
 
 Mr. Eaton. At different times. 
 
 Mr. Burr. What is the nature of them ? They are 
 nothing but memoranda taken from notes, which I made 
 of the conversations between you and myself, at the 
 times when they passed. 
 
 The court decided that they were not admissible. 
 
 Mr. Eaton. May I ask one further indulgence from 
 the court ? I have been long before the public. Much 
 stricture and some severity have passed upon me. May 
 I, in stating my evidence, be permitted to make some 
 explanation about the motives of my own conduct ? 
 
 Chief Justice. Perhaps it would be more correct for 
 the court to decide upon the propriety of the explana- 
 tion, when the particular case occurs. Some cases may 
 require it ; and if any objection be made to your expla- 
 nation, then the court will decide upon it. 
 
 Mr. Eaton. Concerning any overt act, which goes to 
 prove Aaron Burr guilty of treason, I know nothing. 
 
 Mr. Hay. I wish you to state to the court and jury, 
 the different conversations you have had with the prisoner.
 
 536 TRIAL OF AARON BURR. 
 
 Mr. Eaton. Concerning certain transactions which 
 are said to have happened at Blannerhassett's island, or 
 any agency which Aaron Burr may be supposed to have 
 had in them, I know nothing. But concerning Mr. Burr's 
 expression of treasonable intentions, I know much, and 
 it is to these that my evidence relates. 
 
 Mr. Martin. I know not how far the court's opinion 
 extends. 
 
 Chief Justice. It is this : that any proof of intention 
 formed before the^act itself, if relevant to the act, may 
 be admitted. One witness may prove the intention at 
 one time, and another may prove it at another; so as to 
 prove the continuance of the intention throughout the 
 whole transaction ; and therefore the proof of very re- 
 mote intentions may be relevant to this particular act. 
 
 Mr. Martin. I trust, that when he speaks of a trea- 
 sonable intention not applicable to this act the court will 
 stop him, 
 
 Mr. Wickham. If I understand the opinion of the 
 court correctly, it relates to treason charged to be com- 
 mitted in Virginia, and evidence of acts out of it is in- 
 admissible. 
 
 Chief Justice. The intention to commit this crime, 
 to erect an empire in the west, and seize New Orleans, 
 may be shown by subsequent events to have been con- 
 tinued ; and facts out of the district may be proved, 
 after the overt act, as corroborative testimony. 
 
 Mr. Eaton. During the winter of 1805-6 (I can not 
 be positive as to the distinct point of time; yet during 
 that winter), at the city of Washington, Aaron Burr sig- 
 nified to me, that he was organizing a military expedi- 
 tion to be moved against the Spanish provinces, on the 
 south-western frontiers of the United States ; I under- 
 stood under the authority of the general government. 
 From our existing controversies with Spain, and from 
 the tenor of the president's communications to both 
 houses of congress, a conclusion was naturally drawn, 
 that war with that power was inevitable. I had just then 
 returned from the coast of Africa, and having been for 
 many years employed on your frontier, or a coast more 
 barbarous and obscure, I was ignorant of the estimation 
 in which Mr. Burr was held by his country. The distir-
 
 TESTIMONY OF GENERAL EATON 537 
 
 guished rank he held in society, and the strong marks of 
 confidence which he had received from his fellow-citizens, 
 did not permit me to doubt of his patriotism. As a mili- 
 tary character, I had been made acquainted with none 
 within the United States, under whose direction a sol- 
 dier might with greater security confide his honor than 
 Mr. Burr. In case of my country's being involved in a 
 war, I should have thought it my duty to obey so hon- 
 orable a call as was proposed to me. Under impressions 
 like these, I did engage to embark myself in the enter- 
 prise, and pledged myself to Mr. Burr's confidence. At 
 several interviews, it appeared to be his intention to con- 
 vince me, by maps and other documents, of the 
 feasibility of penetrating to Mexico. At length, from 
 certain indistinct expressions and innuendoes, I ad- 
 mitted a suspicion that Mr. Burr had other projects. 
 He used strong expressions of reproach against the ad- 
 ministration of the government: accused them of want 
 of character, want of energy, and want of gratitude. He 
 seemed desirous of irritating my resentment by dilating 
 on certain injurious strictures I had received on the floor 
 of congress, on account of certain transactions on the 
 coast of Tripoli ; and also on the delays in adjusting my 
 accounts for advances of money on account of the 
 United States; and talked of pointing out to me modes 
 of honorable indemnity. I will not conceal here, that 
 Mr. Burr had good reasons for supposing me disaffected 
 towards the government ; I had indeed suffered much, 
 from delays in adjusting my accounts for cash advanced 
 to the government, whilst I was consul at Tunis, and 
 for the expense of supporting the war with Tripoli. I 
 had but a short time before been compelled ingloriously 
 to strike the flag of my country, on the ramparts of a 
 defeated enemy, where it had flown for forty-five days. 
 I had been compelled to abandon my comrades in war, 
 on the fields where they had fought our battles. I had 
 seen cash offered to the half vanquished chief of Tripoli 
 (as he had himself acknowledged), as the consideration 
 of pacification. 
 
 Mr. WickJiam. By whom ? By our negotiator, when 
 as yet no exertion had been made by our naval squadron 
 to coerce that enemy. I had seen the conduct of the
 
 538 TRIAL OF AARON BURR. 
 
 author of these blemishes on our then proud national 
 character, if not commended not censured ; whilst my 
 own inadequate efforts to support that character were 
 attempted to be thrown into the shade. To feelings 
 naturally arising out of circumstances like these, I did 
 give strong expression. Here I beg leave to observe, in 
 justice to myself, that however strong those expressions 
 however harsh the language I employed, they would not 
 justify the inference, that I was preparing to dip 
 my sabre in the blood of my countrymen ; much 
 less of their children, which I believe would have 
 been the case, had this conspiracy been carried into 
 effect. 
 
 \_Mr.Martin objected to this language.] I listened to 
 Mr. Burr's mode of indemnity ; and as I had by this 
 time begun to suspect that the military expedition he 
 had on foot was unlawful, I permitted him to believe 
 myself resigned to his influence, that I might understand 
 the extent and motive of his arrangements. Mr. Burr 
 now laid open his project of revolutionizing the territory 
 west of the Alleghany ; establishing an independent em- 
 pire there; New Orleans to be the capital, and he him- 
 self to be the chief; organizing a military force on the 
 waters of the Mississippi, and carrying conquest to Mexico. 
 After much conversation, which I do not particularly 
 recollect, respecting the feasibility of the project, as was 
 natural, I stated impediments to his operations ; such as 
 the republican habits of the citizens of that country, 
 their attachment to the present administration of the 
 government, the want of funds, the opposition he would 
 experience from the regular army of the United States, 
 stationed on that frontier; and the resistance to be ex- 
 pected from Miranda, in case he should succeed in 
 republicanizing the Mexicans. Mr. Burr appeared. to 
 have no difficulty in removing these obstacles. He 
 stated to me, that he had in person (I think the preced- 
 ing season) made a tour through that country; that he 
 had secured to his interests and attached to his person 
 (I do not recollect the exact expression, but the mean- 
 ing, and I believe, the words were), the most distin- 
 guished citizens of Tennessee, Kentucky, and the terri- 
 tory of Orleans ; that he had inexhaustible resources and
 
 TESTIMONY OF GENERAL EATON. 539 
 
 funds; that the army of the United States would act 
 with him ; that it would be reinforced by ten or twelve 
 thousand men from the above mentioned states and ter- 
 ritory ; that he had powerful agents in the Spanish terri- 
 tory, and " as for Miranda," said Mr. Burr, facetiously, 
 " we must hang Miranda." In the course of several con- 
 versations on this subject, he proposed to give me a dis- 
 tinguished command in his army; I understood him to 
 say the second command. I asked him who would com- 
 mand in chief. He said, General Wilkinson. I ob- 
 served that it was singular he should count upon General 
 Wilkinson ; the distinguished command and high trust 
 he held under government, as the commander-in-chief 
 of our army, and as governor of a province, he would 
 not be apt to put at hazard for any prospect of pre- 
 carious aggrandizement. Mr. Burr stated that Gene- 
 ral Wilkinson balanced in the confidence of his coun- 
 try; that it was doubtful whether he would much 
 longer retain the distinction and confidence he now 
 enjoyed ; and that he was prepared to secure to 
 himself a permanency. I asked Mr. Burr if he knew 
 General Wilkinson. He said, yes; and echoed the 
 question. I told him that twelve years ago I was at the 
 same time a captain in the wing of the legion of the 
 United States which General Wilkinson commanded, his 
 acting brigade-major and aid-de-camp ; and that I 
 thought I knew him well. He asked me what I knew 
 of General Wilkinson ? I said I knew General Wilkin- 
 son would act as lieutenant to no' man in existence. 
 " You are in error," said Mr. Burr ; " Wilkinson will act 
 as lieutenant to me." From the tenor of much conver- 
 sation on this subject, I was prevailed on to believe that 
 the plan of revolution -meditated by Mr. Burr, and com- 
 municated to me, had been concerted with General Wil- 
 kinson, and would have his co-operation ; for Mr. Burr 
 repeatedly and very confidently expressed his belief 
 that the influence of General Wilkinson with his army, 
 the promise of double pay and rations, the ambition of 
 his officers, and the prospect of plunder and military 
 achievements, would bring the army generally into the 
 measure. I pass over here a conversation which took 
 place between Mr. Burr and myself, respecting a central
 
 540 TRIAL OF AARON BURR. 
 
 revolution, as it is decided to be irrelevant by the opin- 
 ion of the bench. 
 
 Mr. Hay. You allude to a revolution for overthrowing 
 the government at Washington, and of revolutionizing 
 the eastern states. 
 
 I was passing over that to come down to the period 
 when I supposed he had relinquished that design, and 
 adhered to the project of revolutionizing the west. 
 
 Mr. Wickham. What project do you mean? A 
 central general revolution. I was thoroughly convinced 
 myself, that such a project was already so far organized 
 as to be dangerous, and that it would require an effort to 
 suppress it. For in addition to positive assurances that 
 Mr. Burr had of assistance and co-operation, he said that 
 the vast extent of territory of the United States, west of 
 the Alleghany mountains, which offered to adventurers 
 with a view on the mines of Mexico, would bring volun- 
 teers to this standard from all quarters of the union. The 
 situation which these communications, and the impressions 
 they made upon me, placed me in, was peculiarly deli- 
 cate. I had no overt act to produce against Mr. Burr. 
 He had given me nothing upon paper; nor did I know 
 of any person in the vicinity, who had received similar 
 communications, and whose testimony might support 
 mine. He had mentioned to me no person as principally 
 and decidedly engaged with him, but General Wilkinson ; 
 a Mr. Alston, who, I afterwards learned, was his son-in- 
 law; and a Mr. Ephraim Kibby, who I learnt was late a 
 captain of rangers in Wayne's army. Of General Wilkin- 
 son, Burr said much, as I have stated; of Mr. Alston, 
 very little, but enough to satisfy me that he was engaged 
 in the project ; and of Kibby, he said that he was bri- 
 gade major in the vicinity of Cincinnati (whether Cincin- 
 nati in Ohio or in Kentucky, I know not), who had much 
 influence with the militia, and had already engaged the 
 majority of the brigade to which he belonged, who were 
 ready to march at Mr. Burr's signal. Mr. Burr talked of 
 this revolution as a matter of right, inherent in the peo- 
 ple, and constitutional; a revolution which would rather 
 be advantageous than detrimental to the Atlantic states ; 
 a revolution which must eventually take place; and for 
 the operation of which, the present crisis was peculiarly
 
 TESTIMONY OF GENERAL EATON. 541 
 
 favorable. He said there was no energy to be dreaded 
 in the general government, and his conversations denoted 
 A confidence that his arrangements were so well made, 
 that he should meet with no opposition at New Orleans ; 
 for the army and chief citizens of that place were now 
 ready to receive him. On the solitary ground upon 
 which I stood, I was at a loss how to conduct myself, 
 though at no loss as respected my duty. I durst not 
 place my lonely testimony in the balance against the 
 weight of Mr. Burr's character ; for by turning the tables 
 upon me, which I thought any man capable of such a 
 project was very capable of doing, I should sink under 
 the weight. I resolved therefore with myself, to obtain 
 the removal of Mr. Burr from this country, in a way hon- 
 orable to him ; and on this I did consult him, without 
 his knowing my motive. Accordingly, I waited on the 
 president of the United States, and after a desultory con- 
 versation, in which I aimed to draw his view to the west- 
 ward, I took the liberty of suggesting to the president, 
 that I thought Mr. Burr ought to be removed from the 
 country, because I considered him dangerous in it. The 
 president asked where we should send him ? Other places 
 might have been mentioned, but I believe that Paris, 
 London, and Madrid were the places which were par- 
 ticularly named. The president, without positive ex- 
 pression (in such a matter of delicacy), signified that the 
 trust was too important, and expressed something like a 
 doubt about the integrity of Mr. Burr. I frankly told 
 the president that perhaps no person had stronger grounds 
 to suspect that integrity than I had; but that I believed 
 his pride of ambition had so predominated over his other 
 passions, that when placed on an eminence, and put on 
 his honor, a respect to himself would secure his fidelity. 
 I perceived that the subject was disagreeable to the 
 president, and to bring him to my point in the shortest 
 mode, and at the same time point to Ae danger, I said 
 to him that I expected that we should in eighteen months 
 have an insurrection, if not a revolution, on the waters 
 of the Mississippi. The president said he had too much 
 confidence in the information, the integrity, and attach- 
 ment to the union of the citizens of that country, to ad- 
 mit any apprehensions of that kind. The circumstance
 
 542 TRIAL OF AARON BURR. 
 
 of no interrogatories being made to me, I thought im- 
 posed silence upon meat that time and place. Here, sir, 
 I beg indulgence to declare my motives for recommending 
 that gentleman to a foreign mission at that time ; and in 
 the solemnity with which I stand here, I declare that Mr. 
 Burr was neutral in my feelings; that it was through no 
 attachment to him that I made that suggestion, but to 
 avert a great national calamity which I saw approaching ; 
 to arrest a tempest which seemed lowering in the west ; 
 and to divert into a channel of usefulness those consum- 
 mate talents which were to "mount the whirlwind and 
 direct the storm." These, and these only, were my rea- 
 sons for making that recommendation. 
 
 About the time of 'my having waited on the president, 
 or a little before (I can not, however, be positive whether 
 before or after), I determined at all events to have some 
 evidence of the integrity of my intentions, and to fortify 
 myself by the advice of two gentlemen, members of the 
 house of representatives, whose friendship and confidence 
 I had the honor long to retain, and in whose wisdom and 
 integrity I had the utmost faith and reliance. I am at 
 liberty to give their names, if required. 1 do not dis- 
 tinctly recollect, but I believe that I had a conversa- 
 tion with a senator on the subject. I developed to them 
 all Mr. Burr's plans. They did not seem much alarmed. 
 
 Mr, Martin objected to the witness stating any of 
 the observations of other persons to himself. 
 
 After some desultory conversation between the coun- 
 sel on both sides, the chief justice said that though 
 more time was wasted by stopping the witness, than by 
 letting him tell his story in his own way, yet if it were 
 required, he must be stopped when he gave improper 
 testimony. He then told the witness, " You are at 
 liberty to vindicate yourself, but declarations of other 
 gentlemen are not to be mentioned, because that certain- 
 ly would be improper." 
 
 Mr. Eaton. I did ask indulgence of the court to 
 make such explanations, because perversions of my con- 
 duct were before the public: but I waive this indul- 
 gence, contented with meeting these perversions at 
 some other time and place. 
 
 Chief Justice. You have used that indulgence.
 
 TESTIMONY OF GENERAL EATON. 543 
 
 Mr. Eaton. Little more passed between Mr. Burr 
 and myself, relevant to this inquiry, while I remained at 
 Washington ; though I could perceive symptoms of dis- 
 trust in him towards me, he was solicitous to engage me 
 in his western plans. I returned to Massachusetts, to 
 my own concerns, and thought no more of Mr. Burr, or 
 his projects, or revolutions until, in October last, a letter 
 was put into my hands at Brumfield, from Mr. Belknap, 
 of Marietta, to T. E. Danielson, of Brumfield, stating 
 that Mr. Burr had contracted for boats which were 
 building on the Ohio. 
 
 Mr. Burr. Have you that letter? 
 
 Mr. Eaton. No. 
 
 Mr. Burr. It is improper, then, to state it. 
 
 Mr. Hay. It is immaterial. Mr. Belknap is here. 
 
 Mr. Eaton. As to letters, I have had no correspon- 
 dence with Mr. Burr. I was about to state, that I had 
 made a communication, through Mr. Granger, to the 
 president of the United States, stating the views of Mr. 
 Burr ; and a copy of the letter from Belknap was trans- 
 mitted to the department of state. 
 
 Mr. Wirt.' Was there any conversation between you 
 and the prisoner, in which you spoke of the odium at- 
 tached to the name of usurper? 
 
 Mr. Eaton. That conversation was excluded by the 
 opinion of the court, as relating to the central project. 
 
 Mr. Hay. Did you mean to state that the honorable 
 indemnity proposed to you by the prisoner was to be in- 
 cluded in this plan ? 
 
 Mr. Eaton. I understood it to be included in the 
 perpetual rank and emolument to be assigned me. In 
 his conversations he declared that he should erect a per- 
 manent government, of which he was to be the chief; 
 and he repeated it so often that I could not have mis- 
 understood him. 
 
 Mr. Martin. Do you recollect when you arrived in 
 Washington ? 
 
 Mr. Eaton. I said that I did not recollect particularly. 
 But the principal part of these conversations must have 
 been between the middle of February and the latter end 
 of March, 1806. I arrived here in the latter end of 
 November, 1805, at Philadelphia; and in December,
 
 544 TRIAL OF AARON BURR. 
 
 went to New England, and afterwards returned ; these 
 conversations happened after my return. 
 
 Do you recollect any particular conduct of yours, 
 calculated to put an end to Mr. Burr's importunities? 
 Yes. At some of our last interviews, I laid on his table 
 a paper containing the toast which I had given to the 
 public, with an intention that he should see it, but I do 
 not know that he did see it, but I believe it : " The 
 United States ; palsy to the brain that should plot to 
 dismember, and leprosy to the hand that will not draw 
 to defend our union." 
 
 Where was that toast drunk? I can not say. This 
 question was made to me from authority. It was sent 
 with other toasts I had corrected, to a paper at Spring- 
 field. I laid this paper on Mr. Burr's table. 
 
 Was it drunk at any distant place? At Philadelphia? 
 I do not recollect. I thought at first it was at Phila- 
 delphia, but on reflection, it could not have been there , 
 but I had received many hospitalities throughout the 
 union; many of my toasts were published ; and in the 
 hurry of passing and repassing, I have completely for- 
 gotten. 
 
 Mr. Burr. Do you recollect when you left Washing- 
 ton ? About the $th or 6th of April. 
 
 Can you not be certain where this toast was drunk ? 
 At Washington or at Philadelphia ? I am not certain 
 when or where it was drunk, but I am certain it was 
 not at Washington, because I gave another there when 
 called upon. 
 
 Did you say that all these conversations happened 
 between the middle of February and the last of March ? 
 No ; I did not say so. I said the principal part of these 
 conversations passed in that interval. 
 
 Mr. Burr. Did you sSy the paper containing that toast 
 was laid on my table in March? I can not tell; it can 
 not be material ; from that time our intercourse became 
 less frequent ; you expressed some solicitude to keep me 
 at your house. 
 
 You say that this toast was printed at Springfield? I 
 did. 
 
 Have you in your possession a paper containing that 
 toast ? I have not here.
 
 TESTIMONY OF GENERAL . EATON. 545 
 
 Mr. Martin. Did you transmit the toast for publica- 
 tion, and to what printer? I do not recollect dis- 
 tinctly. 
 
 You mentioned something about a communication 
 which you made to the president, through the postmas- 
 ter-general. Look at that paper. Is that your signature? 
 --It is; and I must give a short account of that paper. 
 I went to Springfield, about twenty-five miles distant 
 from my place of residence. Mr. Granger was there ; I 
 went to see him ; on my arrival there, in the evening, I 
 understood that he had gone out of town to his seat in 
 the country ; but that he had taken notes concerning 
 those transactions. Next morning I went to his house ; 
 he put into my hands notes which he had got from Mr. 
 Ely. 
 
 Whom were the notes written by? By Mr. Granger; 
 they were subscribed by him, if I have a correct recollec- 
 tion. [Mr. Eaton then mentioned that the notes on the 
 first two pages were drawn up by Mr. Granger from con- 
 versations which had passed between Mr. Granger and Mr. 
 Ely, on certain communications made to Mr. Ely by Mr. 
 Eaton, respecting Mr. Burr's plans; that he had seen 
 Mr. Ely at Northampton, at the session of the court of 
 common pleas, at the time when they had first heard of 
 the building of boats on the Ohio. The notes on the 
 'last page, in Mr. Granger's writing, and subscribed by 
 himself, were from subsequent conversations between him 
 and Mr. Granger.] 
 
 How many days' traveling is it by the stage from Spring- 
 field to Washington? Not more than five. 
 
 Mr. Burr. You spoke of accounts with the govern- 
 ment. Did you, or the government, demand money? 
 They had no demand on me ; I demanded money of 
 them. 
 
 Did they state in account a balance against you ? I 
 expended money for the service of the United States, 
 when employed las consul at Tunis, an accountof which 
 being presented to the accounting officers of the treasury, 
 they, I was told, had no legal discretion to settle it. As 
 there was no law to authorize this adjustment, I did refer 
 to the congress of 1803-4. A committee had reported 
 on my claims, favorably, as I supposed ; then my accounts 
 I. 35
 
 546 TRIAL OF AARON BURR. 
 
 were left ; when I went, however, to the coast of Barbary, 
 and when I returned after eighteen months, I renewed 
 my claim to the congress. I found that new difficulties 
 had occurred to prevent an adjustment. Leaving out 
 the sums I had advanced, the government had a consid- 
 erable balance against me. Some comments were made 
 by a member from New York, which I thought deroga- 
 tory to my character ; but the balance was in my favor. 
 The last session of congress left them to the accounting 
 officers to settle according to equity. It has been since 
 settled and paid. 
 
 Mr. Martin. Did not Mr. Burr confine his plans to at- 
 tack the Spanish provinces, for the most considerable 
 part of the time, to the event of a war with Spain ? Not 
 for the most considerable part of the time, but for some 
 time. 
 
 Mr. Martin asked him some questions relative to his 
 having seen him accompanied by his step-daughter and 
 another lady and a gentleman, at Georgetown and Alex- 
 dria, about the time he had spoken of; and whether he 
 had given the toast then, when together in the same 
 room ? He admitted that he had seen him when so ac- 
 companied, but was not positive when or where the toast 
 was given. 
 
 Mr. Martin. What balance did you receive ? That is 
 my concern, sir. 
 
 Mr. Burr. What was the balance against you ? 
 
 Mr. Eaton (to the court). Is that a proper question ? 
 
 Mr. Burr. My object is manifest ; I wish to show the 
 bias which has existed on the mind of the witness. 
 
 Chief Justice saw no objections to the question. 
 
 Mr. Eaton. I can not say to a cent or a dollar ; but I 
 have received about ten thousand dollars. 
 
 Mr. Burr. When was the money received ? About 
 March last. 
 
 You mentioned Miranda. Where did you understand 
 he was gone to ? On the benevolent project of revolu- 
 tionizing the Spanish provinces. 
 
 What part of them ? Caraccas. I had some reason 
 too to know something of that project ; because I too' 
 was invited to join in that. He too was to have been an 
 emperor ; he might have been troublesome to us ; and
 
 EVIDENCE OF GENERAL EATON. 547 
 
 of course when I asked you what was to be done with 
 him, you observed " hang him." 
 
 Did you understand that I was to do all at once ; to 
 execute the central project too, as well as that in the 
 west? I have no objection to answering that; but it 
 will be nothing in your favor. When Mr. Burr was 
 , speaking of a central revolution, not much was said about 
 his revolution in the west. Had the other been effected, 
 I doubt much whether you would have been willing to 
 have separated that part. 
 
 You spoke of a command ? You stated, what I have 
 already mentioned, that you were assured, from the ar- 
 rangements which you had made, that an army would be 
 ready to appear, when you went to the waters of the 
 western country. I recollect particularly the name of 
 Ephraim Kibby, who had been a ranger in General 
 Wayne's army. You asked me about his spirit. You 
 gave me to understand that his brigade was ready to join 
 you, and that the people also in that country were ready 
 to engage with you in the enterprise. You spoke of 
 your riflemen, your infantry, your cavalry. It was with 
 the same view, you mentioned to me that that man 
 [pointing to General Wilkinson, just behind him] was to 
 have been the first to aid you ; and from the same views 
 you have perhaps mentioned me. 
 
 Mr. Martin objected to the witness interposing his 
 own opinions in this manner. 
 
 Mr. Hay. Some allowance is to be made for the feel- 
 ings of a man of honor. 
 
 Mr. Eaton, bowing, apologized to the court for the 
 warmth of his manner. 
 
 Mr. Burr. You spoke of my revolutionizing the wes- 
 tern states. How did you understand that the union 
 was to be separated? Your principal line was to be 
 drawn by the Alleghany mountains. You were persuaded 
 that you had secured to you the most considerable citi- 
 zens of Kentucky and Tennessee ; but expressed some 
 doubts about Ohio ; I well recollect that, on account of 
 the reason which you gave that they were too much of 
 a plodding, industrial people to engage in your enter- 
 prise. 
 
 How was the business to be effected? I understood
 
 548 TRIAL OF AARON BURR. 
 
 that your agents were in the western country ; that the 
 army and the commander-in-chief were ready to act at your 
 signal ; and that these, with the adventurers who would 
 join you, would compel the states to agree to a separa- 
 tion. Indeed, you seemed to consider New Orleans as 
 already yours, and that from this point you would send 
 expeditions -into the other provinces; make conquests, 
 and consolidate your empire. 
 
 Was it after all this that you recommended me to the 
 president for an embassy ? Yes ; to remove you, as you 
 were a dangerous man, because I thought it the only 
 way to avert a civil war. 
 
 Did you communicate this to me, and what did I say? 
 Yes ; you seemed to assent to the proposition. 
 
 What had become of your command ? That I had 
 disposed of myself. 
 
 Did you understand that you had given me a definite 
 answer? No ; after you had developed yourself, I deter- 
 mined to use you, until I got everything out of you ; and 
 on the principle that, " when innocence is in danger, to 
 break faith with a bad man is not fraud but virtue." 
 
 Did you think that your proposition, as to a foreign 
 embassy, which was so incompatible with my own plans, 
 would be received by me with indifference, had I aban- 
 doned the project? You seemed to me to want some 
 distinguished place : as to the mode you were indifferent : 
 and you seemed to acquiesce in the plan of a foreign 
 embassy. 
 
 Mr. Hay.-r- You said that you received about ten thou- 
 sand dollars from the government, in consequence of a law 
 passed for the purpose. The act of congress did not 
 give you a definitive sum. The act of congress gave 
 the accounting officers the power of settling with me, on 
 equitable principles, under the inspection of the secre- 
 tary of state, under whose department I had served ; 
 and the settlement was accordingly made. 
 
 COMMODORE TRUXTUN was then sworn. 
 
 Mr. Hay. Were you present when the court delivered 
 its opinion? I was. I know nothing of overt acts, trea- 
 sonable designs or conversations, on the part of Mr. Burr. 
 
 Here Mr. Hay, the attorney for the United States,
 
 EVIDENCE OF COMMODORE TRUXTUN. 549 
 
 seemed to doubt whether the evidence of the commo- 
 dore applied to this charge, and to be indisposed to ex- 
 amine him. 
 
 Mr. Wickham then observed that he would put two 
 questions to him. 1st. Whether he had not frequent 
 and considerable conversations with Mr. Burr, con- 
 cerning the Mexican expedition? 2nd. Whether in any 
 of those conversations he ever heard him say anything 
 of a treasonable design? 
 
 Mr. Hay objected to his examination at this time, 
 and Mr. Wickham insisted on it. 
 
 Mr. Wirt contended that the attorney had the right 
 to examine the witness or not, at this time, as he 
 thought proper ; that the court would recollect, that 
 there were two indictments against the prisoner ; the 
 one for high treason, now in discussion before the court, 
 and the other for a misdemeanor (under the act of con- 
 gress) for preparing an expedition against the Spanish 
 provinces ; that the witnesses were summoned promis- 
 cuously to support both charges ; that the attorney 
 could not ascertain what witnesses supported each in- 
 dictment without inquiring of themselves ; and what he 
 now asked the witness, ought to be considered merely 
 as an inquiry to which of the two indictments his evi- 
 dence related ; and that his evidence was deemed very 
 material on the second indictment, though not on the 
 first. 
 
 Mr. Hay said that on reflection he had no doubt the 
 testimony of Commodore Truxtun would have a direct 
 bearing on the subject now before the court, when con- 
 nected with the other evidence in the cause ; that it 
 would appear that there was an intimate connection be- 
 tween the two projects, the seizure of New Orleans and 
 the attack on Mexico ; he would therefore examine him 
 now and propound this question. Have you not had 
 several conversations with the accused concerning the 
 Mexican expedition ? About the beginning of the 
 winter of 1805-6, Mr. Burr returned from the western 
 country to Philadelphia. He frequently, in conversation 
 with me, mentioned the subject of speculations in west- 
 ern lands, opening a canal and building a bridge. Those 
 things were not interesting to me in the least, and I did
 
 550 TRIAL OF AARON BURR. 
 
 not pay much attention to them. Mr. Burr mentioned 
 to me that the government was weak, and he wished me 
 to get the navy of the United States out of my head ; 
 that it would dwindle to nothing; and that he had 
 something to propose to me that was both honorable 
 and profitable; but I considered this as nothing more 
 than an interest in his land speculations. His conver- 
 sations were repeated frequently. Some time in July, 
 1806, he told me that he wished to see me unwedded 
 from the navy of the United States, and not to think 
 more of those men at Washington ; that he wished to 
 see or make me (I do not^recollect which of those two 
 terms he used) an admiral ; that he contemplated an ex- 
 pedition to Mexico, in the event of a war with Spain, 
 which he thought inevitable. He asked me if the 
 Havana could be easily taken in the event of a war? I 
 told him that it would require the co-operation of a 
 naval force. Mr. Burr observed to me, that that might 
 be obtained. He asked me if I had any personal knowl- 
 edge of Carthagena and La Vera Cruz, and what would 
 be the best mode of attacking them by sea and land ? I 
 gave him my opinion very freely. Mr. Burr then asked 
 me if I would take the command of a naval expedition ? 
 I asked him if the executive of the United States were 
 privy to, or concerned in the project ? He answered 
 emphatically that he was not. I asked that question, 
 because the executive had been charged with a knowl- 
 edge of Miranda's expedition ; I told Mr. Burr that I 
 would have nothing to do with it ; that Miranda's pro- 
 ject had been intimated to me, but I declined to have 
 anything to do with such affairs. He observed to me, 
 that in the event of a war, he intended to establish an 
 independent government in Mexico ; that Wilkinson, 
 the army, and many officers of the navy would join. I 
 told Mr. Burr that I could not see how any officer of 
 the United States could join. He said that General 
 Wilkinson had projected the expedition, and he had ma- 
 tured it ; that many greater men than Wilkinson would 
 join, and that thousands to the westward would join. 
 
 Mr. Hay. Do you recollect having asked him whether 
 General Wilkinson had previously engaged in it ? He 
 said yes, and many greater men than Wilkinson.
 
 EVIDENCE OF COMMODORE TRUXTUN. 551 
 
 Mr. Hay. I will ask you whether, at that time, you 
 were in the service of the United States ? I was declared 
 not to be. 
 
 Mr. Hay. I do not wish to hurt your feelings, but 
 merely to show to the jury the state you were in. 
 
 Commodore Truxtun. Mr. Burr again wished me to 
 take a part, and asked me to write a letter to General 
 Wilkinson ; that he was about to despatch two couriers 
 to him. I told him that I had no subject to write about, 
 and declined writing. Mr. Burr said that several officers 
 would be pleased at being put under my command. He 
 spoke highly of Lieutenant Jones, and asked me if he had 
 sailed with me ? I told him that he had not, and that I 
 could give him no account of Mr. Jones, having never 
 seen him to my knowledge. He observed that the ex- 
 pedition could not fail ; that the Mexicans were ripe for 
 revolt; that he was incapable of anything chimerical, or 
 that would lead his friends into a dilemma. He showed 
 me the draught of a periauger or kind of boat that plies 
 between Paulus-Hook and New 'York, and asked my 
 opinion of those boats, and whether they were calculated 
 for the river Mississippi and the waters thereof ; and I 
 gave him my opinion that they were. He asked me 
 whether I could get a naval constructor to make several 
 copies of the draught? I told him I would. I spoke to 
 a naval constructor and delivered it to him, but as he could 
 not finish them as soon as Mr. Burr wished, the draught 
 was returned to him. Mr. Burr told me that he intended 
 those boats for the conveyance of agricultural products 
 to market at New Orleans, and in the event of a war, for 
 transports. I knew, and informed him, that they were 
 not calculated for transports by sea, nor for the carrying 
 of guns ; but having determined to have nothing t'o do 
 with the Mexican expedition, I said very little more to 
 him about those boats ; but I very well recollect what I 
 said to him in our last conversation towards the end of 
 July. I told him that there would be no war. He was 
 sanguine there would be war. He said, however, that if 
 he was disappointed as to the event of war, he was about 
 to complete a contract for a large quantity of land on the 
 Washita ; that he intended to invite his friends to settle 
 it ; that in one year he would have a thousand families
 
 552 TRIAL OF AARON BURR. 
 
 of respectable and fashionable people, and some of them 
 of considerable property ; that it was a fine country, and 
 that they would have a charming society, and in two years 
 he would have doubled the number of settlers ; and being 
 on the frontier, he would be ready to move whenever a 
 war took place. I have thus endeavored to relate the 
 substance of the conversations which passed between us 
 as well as I can recollect. Though it is very possible 
 that I have not stated them, after such a lapse of time, 
 verbatim, 
 
 Mr. MacRae. Was it in your first conversation that 
 he told you, that you should think no more of those men 
 at Washington ? It was in several. 
 
 Was it not in July, that he told you that he wished to 
 see you unwedded from the navy of the United States, 
 and to make you an admiral ? That conversation hap- 
 pened in July. He wished to see or make me an ad- 
 miral ; I can not recollect which. 
 
 Mr. Hay. Did not those conversations take place 
 after it was declared that you were no longer in the ser- 
 vice of the United States? They did. 
 
 In answer to a question by Colonel Carrington, one of 
 the jury, he again stated that the latter conversation was 
 in July. 
 
 Mr. Martin. Was it not to the event of a war with 
 Spain that these conversations related ? All his conver- 
 sations respecting military and naval subjects, and the 
 Mexican expedition, were in the event of a war with 
 Spain. I told him my opinion was, that there would be 
 no war, and he seemed to be confident that there would 
 be war. 
 
 Mr. MacRae. Did he mention General Eaton in any 
 of those conversations? He mentioned no person but 
 General Wilkinson and Lieutenant Jones. 
 
 Mr. Hay. Had you not expressed your dissatisfaction 
 at the declaration of your not being in the service of the 
 Uniteti States ? I had. The misunderstanding between 
 the secretary of the navy of the United States and my- 
 self took place in March, 1802. 
 
 On cross-examination, the commodore further stated, 
 that he had had several (he did not know how many) 
 conversations with Mr. Burr ; and that as well as he
 
 EVIDENCE OF COMMODORE TRUXTUN. 553 
 
 could recollect, it was about the latter end of July, that 
 he informed him that he was about concluding a bargain 
 for the Washita lands, and wished also to see him un- 
 wedded from the navy of the United States. He added, 
 Mr. Burr said, that after the Mexican expedition, he 
 intended to provide a formidable navy, at the head of 
 which he intended to place me ; that he intended to es- 
 tablish an independent government, and give liberty to 
 an enslaved world. I declined his propositions to me at 
 first, because the president was not privy to the project. 
 He asked me the best mode of attacking the Havana, 
 Carthagena, and La Vera Cruz, but spoke of no partic- 
 ular force. 
 
 Mr. Burr. Do you not recollect my telling you of 
 the propriety of private expeditions, undertaken by 
 individuals in case of war ; and that there had been such 
 in the late war, and that there was no legal restraint on 
 such expeditions? 
 
 Mr. /foj objected to this question as improper. 
 
 Mr. Burr insisted on its propriety, and that the gen- 
 tlemen for the prosecution had set an example far be- 
 yond it. . 
 
 Commodore Truxtun. You said that Wilkinson, the 
 army, and many of the officers of the navy would join, 
 and you spoke highly of Lieutenant Jones. 
 
 Mr. Burr. Had I not frequently told you, and for 
 years, that the government had no serious intention of 
 employing you, and that you were duped by the Smiths? 
 and do you not think that I was perfectly correct in that 
 opinion ? Yes ; I know very well I was. 
 
 Were we not on terms of intimacy ? Was there any 
 reserve on my part, in our frequent conversations ; and 
 did you ever hear me express any intention or sentiment 
 respecting a division of the union ? We were very inti- 
 mate. There seemed to be no reserve on your part. I 
 never heard you speak of a division of the union. 
 
 Did I not state to you that the Mexican expedi- 
 "tion would be very beneficial to this country? You 
 did. 
 
 Had you any serious doubt as to my intentions to set- 
 tle those lands? So far from that, I was astonished at 
 the intelligence of your having different views, contained
 
 554 TRIAL OF AARON BURR. 
 
 in newspapers received from the western country after you 
 went thither. 
 
 Would you not have joined in the expedition if sanc- 
 tioned by the government ? I would most readily get out 
 of my bed at twelve o'clock at night, to go in defense ol 
 my country at her call, against England, France, Spain, 
 or any other country. 
 
 Mr. Hay. Did the prisoner speak of commercial spec- 
 ulations ? He said they might be carried on to advantage. 
 
 Did he, in his conversations, speak of commercial 
 establishments, in which he or his friends were to have 
 an interest? He spoke of settling that country, and 
 sending produce therefrom to different parts of the world, 
 New Orleans particularly. 
 
 Mr. Wirt. Did he speak of an independent empire 
 in Mexico, having an advantageous connection with this 
 country? I understood him so. 
 
 Mr. Mac Rae. Did he wish to fill your mind with 
 resentment against the government? I was pretty full 
 of it myself, and he joined me in opinion. 
 
 Mr. Wirt. On what subject did Burr wish you to 
 write to General Wilkinson ? General Wilkinson and 
 myself were on good terms, and he wished me to corre- 
 spond with him ; but I had no subject for a letter to him, 
 and therefore did not write to him. 
 
 Mr. Hay. Suppose we were to have a war with 
 Spain, would not New Orleans be a proper place from 
 whence to send an expedition against the Spanish prov- 
 inces ? Is it not more proper for that purpose, than any 
 other place in the western parts of the country? Cer- 
 tainly it is ; but large ships can not come up to New 
 Orleans ; small craft or vessels must take the expedition 
 down the river. 
 
 Mr. Parker one of the jury. Did you understand for 
 what purpose the couriers spoken of were to be sent by 
 Mr. Burr to General Wilkinson ? I understood from him, 
 that there was an understanding between himself and 
 General Wilkinson, about the Mexican expedition. 
 
 Mr. Parker. Was this expedition only to be in the 
 event of a war with Spain? Yes; in all his conversa- 
 tions with me he said that this expedition was to take 
 place only in the event of a war with Spain.
 
 EVIDENCE OF PETER TAYLOR. 555 
 
 Mr. Parker. Was there no proposition made to you 
 for such an expedition, whether there was war or not? 
 There was not. 
 
 Mr. Burr said that enterprises by individuals are law- 
 ful and customary in cases of war; and asked whether 
 there were not preparations making in Philadelphia now 
 for that purpose. Preparations are making at New York, 
 as to gun-boats and fortifications. The merchants of 
 Liverpool, in expectation of war, build ships for priva- 
 teers, and if there be no war, they convert them into 
 Guineamen. 
 
 Mr. Mac Rae. Are not the preparations going on open- 
 ly at New York? Has any commander been appointed 
 independent of the government? No. 
 
 Mr. Burr. Did I not say that I had never seen Lieu- 
 tenant Jones? I do not recollect that, but you spoke 
 highly of him. 
 
 Mr. Hay. When he proposed to make you an admiral, 
 did not the thought strike you, how he was to accomplish 
 this? 
 
 Mr. Botts denied that Commodore Truxtun had said 
 that Mr. Burr had promised to make him an admiral. 
 
 Commodore Truxtun. Mr. Burr told me he wished to 
 make or see me one ; I do not particularly recollect which 
 was his expression. 
 
 Mr. Hay. From what quarter of the world was the 
 expedition by sea to go? I do not know. I did not ask 
 him where it was to go from. 
 
 Did you not understand that you were to command 
 the expedition by sea? I declined the offer, and asked 
 no questions particularly on the subject. 
 
 Mr. Botts. Can ships be built secretly in a corner? 
 No. 
 
 PETER TAYLOR was next sworn. 
 
 Mr. Hay asked him to state everything he knew con- 
 cerning the assemblage on Blannerhassett's island. 
 
 Mr. Botts objected to this mode of examination ; and 
 though he was willing to accommodate Mr. Hay so far 
 as to let the witness tell his story in his own way, yet he 
 would not consent to his introducing completely il- 
 legal testimony; he had no objection to the witness
 
 556 TRIAL OF AARON BURR. 
 
 stating what Mr. Burr had said, or the facts which hap- 
 pened on the island, though both were, strictly speaking, 
 improper evidence ; but he would not agree to his speak- 
 ing of the declarations of Mr. and Mrs. Blannerhassett. 
 
 Mr. Burr said he waived the objection at present. 
 
 Mr. Hay. This witness will directly prove the con- 
 nection of Burr with Blannerhassett, and with the assem- 
 blage on the island. 
 
 Peter Taylor. The first information I had upon this 
 subject, was from Mrs. Blannerhassett, when Mr. Blanner- 
 hassett and Mr. Alston were gone down the river. The 
 people got much alarmed concerning this business, and 
 Mrs. Blannerhassett sent me to Lexington after Mr. 
 Blannerhassett, with a letter to prevent Mr. Burr from 
 coming back with him to the island. I went to Chilico- 
 the, but I did not find Mr. Blannerhassett there, and I 
 then went on to Cincinnati. I was directed to call at 
 Cincinnati, at Mr. John Smith's, where I would find Mr. 
 Blannerhassett. I called at Mr. Smith's store, where I 
 saw his son. I asked if Mr. Smith was at home, he said 
 yes. I said I wanted to speak to him. His son went 
 and told him a man wanted to see him. When Mr. Smith 
 came out, I inquired for Mr. Burr and Blannerhassett, to 
 see whether he could give any account of them. He al- 
 lowed he knew nothing of either of them. He allowed I" 
 was much mistaken in the place. I said no, this was 
 the right place ; " Mr. John Smith, storekeeper, Cincin- 
 nati." Says I, " Don't you recollect a young man who 
 came here some time ago for Mr. Burr's top -coat ?" [great 
 coat]. I said: "Sir, I have lived with Mr. Blannerhas- 
 sett for three years." When Mr. Smith heard me talk so 
 he knew me, and took me upstairs to talk with me. He 
 wanted to know the news up our way. I told him the 
 people had got alarmed. I told him that everything was 
 in agitation ; that they talked about new settlements of 
 lands, as they told me. He seemed surprised. He asked 
 what was said about General Wilkinson ? I said I knew 
 nothing about it. He asked me if I would carry a letter 
 from him to Blannerhassett ? I told him I would carry 
 anything so as it was not too burdensome; so he sat 
 down and wrote a letter. He asked whether 1- wished to 
 drink? for he charged me not to go to any tavern, lest
 
 TESTIMONY OF PETER TAYLOR. 557 
 
 they should be asking me questions. He gave me liquor 
 and I drank; and then he showed me a stable, and told 
 me to go and get my horse fed by the ostler, but not to 
 go into the tavern. I asked him where' I should find Mr. 
 Burr and Blannerhassett ? He said he expected they 
 were at Lexington. I told him I supposed af Mr. Jour- 
 don's. He said that was the very house. When I got 
 to Lexington it was Saturday about one o'clock. Mr. 
 Jourdan happened to be in the street and knew me. He 
 said : " Peter, your old master, as you call him, is not in 
 town." But he said, before I asked him, he expected 
 him either that night or to-morrow early. He asked me 
 what news in our parts? and I told him. I asked him 
 what I was to do with my horse ? He said that he was 
 to be put at the livery stable. He then went upstairs and 
 he opened a door, and made a motion with his hand, I 
 suppose to Mr. Burr. I went in, and there was Mr. Burr. 
 Mr. Burr wanted to know the news in our parts. I began 
 to tell him, that my business was to prevent Mr. Burr 
 from going back to the island. 
 
 Did you know Mr. Burr at that time? I did not. 
 He had bee'n on the island three times; but I did not 
 see him. When I told Mr. Burr that, says he, " I am the 
 very man involved in this piece of business ; and you 
 ought to tell me all you know." I said, " If you come 
 up our way, the people will shoot you." I told him it 
 was my sincere opinion, that it was not safe for him to 
 come up our way. I told him that I heard several de- 
 clare, that they had rather shoot him than let it alone, 
 if they had a good chance. He seemed surprised, that 
 they should have such a thing in their heads. I told 
 him, I could not tell why; and then I told him all about 
 the land-settlement, but the people said all that was a 
 fib, and that he had something else in view. Then Mr. 
 Burr asked me what letters I had ? I said, two ; one 
 was from Mrs. Blannerhassett, and the other from John 
 Smith, of Cincinnati. He asked me if he might open 
 the letter from John Smith to Blannerhassett, for he 
 expected it was for him ? I told him I supposed it made 
 no difference between him and Blannerhassett, and he 
 might. He broke the seal open, and showed me there 
 was a letter enclosed for himself. He asked me about
 
 558 TRIAL OF AARON BURR. 
 
 my wife. I asked him whether I might not go about the 
 town. He said I might, and then I went downstairs and 
 left the opened letter with him. 1 then went to Mr. 
 Jourdan, and asked him whether I was to stay at his 
 house, or go to a tavern ? He said I was to go to a tav- 
 ern, and he would pay for me. Mr. Jourdan wished me 
 to go next day to Millersburg, after the saddle-bags left 
 there by Mr. Blannerhassett. I told him I would, and 
 I did go. I left Mrs. Blannerhassett's letter with Mr. 
 Jourdan, expecting Blannerhassett to get there before 
 me. I got back on Monday by one o'clock ; and then 
 Mr. Blannerhasset was come and preparing to go home. 
 We started and came ten miles that night. We stopped 
 at a tavern. I went to see after the horses, and he went 
 into the house. There were people in the house who 
 wanted to know his name. He told them his name was 
 Tom Jones. He came out and told me the people in 
 the house had asked, and he had told them his name was 
 Tom Jones, and I must mind and not make no mistake, 
 but call him Tom Jones too. So he passed by that 
 name till we got to the Mudlicks. He then told me 
 he was known there, and I must call him by his own 
 name. 
 
 When did these things happen? All this was in 
 October, 1806, I believe. He then began to inquire for 
 young men that had rifles ; good orderly men, that 
 would be conformable to order and discipline. He 
 allowed that Mr. Burr and he and a few of his friends, had 
 bought eight hundred thousand acres of land, and they 
 wanted young men to settle it. He said he would give any 
 young man who would go down he river, one hundred 
 acres of land, plenty of grog and victuals while going 
 down the river, and three months' provisions after they 
 had got to the end ; every young man must have his 
 rifle and blanket. I agreed to go myself, if I could carry 
 my wife and family, but he said he must have further 
 consultation upon that. When I got home I began to 
 think, and asked him what kind of seed we should carry 
 with us? He said we did not want any; the people had 
 seeds where we were going. 
 
 Mr. Wirt. Of what occupation were you on the 
 island? A gardener.
 
 TESTIMONY OF PETER TAYLOR. 559 
 
 Mr. Wirt. I put this question that the jury might 
 understand his last observation. 
 
 I urged that subject to him several times ; at last he 
 made a sudden pause and said, " I will tell you what, 
 Peter, we are going to take Mexico ; one of the finest 
 and richest places in the whole world." He said that 
 Mr. Burr would be the king of Mexico, and Mrs. Alston, 
 daughter of Mr. Burr, was to be the queen of Mexico, 
 whenever Mr. Burr died. He said that Mr. Burr had 
 made fortunes for many in his time, but none for him- 
 self; but now he was going to make something for him- 
 self. He said that he had a great many friends in the 
 Spanish territory ; no less than two thousand Roman 
 Catholic priests were engaged, and that all their friends 
 too would join, if once he could get to them; that the 
 Spaniards, like the French, had got dissatisfied with their 
 government, and wanted to swap it. He told me that 
 the British also were friends in this piece of business, and 
 that he should go to England, on this piece of business, 
 for Mr. Burr. He asked me if I would not like to go to 
 England. I said I should certainly like to see my friends 
 there, but would wish to go for nothing else. I then 
 asked him what was to become of the men who were 
 going to settle the lands he talked about ? Were they to 
 stop at the Red River, or to go on ? He said, " Oh, by 
 God, I tell you Peter, every man that will not conform 
 to order and discipline, I will stab ; you'll see how I'll fix 
 them ;" that when he got them far enough down the 
 river, if they did not conform to order and discipline, he 
 swore by God he'd stab them. I was astonished ; I told 
 him I was no soldier, and could not fight. He said it 
 made no odds ; he did not want me to fight ; he wanted 
 me to go and live with Mrs. Blannerhassett and the 
 children, either at Natchez or some other place, while he 
 went on the expedition. I talked to him again, and told 
 him the people had got it into their heads, that he 
 wanted to divide the union. He said Mr. Burr and he 
 could not do it themselves. All they could do was to 
 tell the people the consequence of it. He said the peo- 
 ple there paid the government upwards of four hundred 
 thousand dollars a year, and never received any benefit 
 from it. He allowed it would be a very fine thing if
 
 560 TRIAL OF AARON BURR. 
 
 they could keep that money among themselves on this 
 side the mountains, and make locks, and build bridges, 
 and cut roads. About two weeks after I got home, he 
 sent me to Dr. Bennett's, of Mason county, with a letter. 
 He wanted to know if Doctor Bennett wouldn't sell him 
 the arms belonging to the United States which were in his 
 charge? If he could sell them and keep himself out of 
 danger, he'd give him a draft upon his friend in Kentucky 
 for payment; if he could not sell them without bringing 
 himself into a hobble, he must send him word where they 
 were kept, and he would come and steal them away in 
 the night. I delivered the letter. He gave me direc- 
 tions to get it back and burn it, for it contained high 
 treason. I was not to give the letter to Doctor Bennett, 
 until the, doctor promised to deliver it back, for me to 
 burn it ; for that it contained high treason. I did burn it ; 
 the doctor was present. 
 
 The doctor read the letter, and said he was unacquaint- 
 ed with the plot, and couldn't join in it. 
 
 Mr. Hay. Were you not on the island when the peo- 
 ple were there ? Yes. 
 
 When did the boats leave the island ? It was contem- 
 plated to sail on the 6th of December ; but the boats 
 were not ready ; they did not come till the loth (Sun- 
 day). Mr. Knox and several other men were with him, 
 and they sailed on the Wednesday night following. 
 
 How many boats were there ? Four. 
 
 How many men from the boats came ashore ? About 
 thirty. 
 
 What did the men do who did not belong to the boats ? 
 Some were packing meat ; and some were packing 
 other things. 
 
 Mr. Mac Rae. Who went off on Wednesday night? 
 Mr. Blannerhassett and Mr. Tyler, and the whole of the 
 party. 
 
 At what time in the night? About one o'clock. 
 
 Did all that came down to the island go away ? All 
 but one, who was sick 
 
 Mr. Hay. Had they any guns? Some of them had ; 
 some of the people went a-shooting. But I do not know 
 how many there were. 
 
 Mr.. J. M. Sheppard(& juryman). What kind of guns ;
 
 TESTIMONY OF GENERAL MORGAN. 561 
 
 rifles or muskets? I can't tell whether rifles or muskets. 
 I saw no pistols but what belonged to Blannerhassett 
 himself. 
 
 Was there any powder or lead ? They had powder, 
 and they had lead both ; I saw some powder in a long 
 small barrel, like a churn ; but I was so employed I 
 could not notice particularly. Some of the men were 
 engaged in running bullets; but I do not know how 
 many. 
 
 Mr. Mac Rae. What induced them to leave the island 
 at that hour of the night ? Because they were informed 
 that the Kenawa militia were coming down there. 
 
 Did you carry some boxes to the boats? I carried- 
 half a bushel of candles and some brandy ; several boxes 
 were carried, but I knew not what they contained, and a 
 great many things besides, of which I knew nothing. 
 
 Mr. Hay. Were you on the island when they went 
 off? Yes. They held a council at the foot of the pier, 
 to determine which was the best way to go. Mr. Blan- 
 nerhassett said that they had better go together ; if he 
 went in a canoe, he would be an easy prey. I said to 
 them, " best stick together ;" and so they determined to 
 stick together. They went off in great haste. 
 
 Why did they go in a body? I suppose for security. 
 
 Mr. Wick ham. You saw General Tupper and Mr. 
 Woodbridge that night? Yes. 
 
 Was Mr. Burr there? No ; I did not see him. 
 
 Did you understand whether he were in that part of 
 the country at that time? I understood not ; never saw 
 him on the island. 
 
 WEDNESDAY, August iQth, 1807. 
 
 GENERAL JOHN MORGAN was then sworn, and gave the 
 following testimony : Some time in August last, about 
 this time twelvemonth, my father put a letter into my 
 hands, signed Aaron Burr, in which he said that himself 
 and Colonel Dupiester would dine with him the following 
 day. My father requested me and my brother to go and 
 meet Mr. Burr ; which we did, about seven miles distant. 
 After a few words of general conversation, Mr. Burr ob- 
 served to me, that the union of the states could not pos- 
 i. 16
 
 562 TRIAL OF AARON BURR. 
 
 sibly last ; and that a separation of the states muse 
 ensue as a natural consequence, in four or five years. 
 Mr. Burr made many inquiries of me, relative to the 
 county of Washington ; particularly the state of its 
 militia; its strength, arms, accoutrements, and the char- 
 acter of its officers. These conversations continued some 
 trnie, besides other things which I can not recollect, be- 
 cause I did not expect to be called upon in this way. 
 After traveling some miles we met one of my workmen, 
 a well-looking young man. Mr. Burr said he wished he 
 had ten thousand such fellows. At my father's table, 
 during dinner, Mr. Burr again observed, that the separa- 
 tion of the union must take place inevitably, in less than 
 five years. Shall I give the answers that were made? 
 
 Mr. Wirt. Perhaps it may serve to connect your nar- 
 rative better. 
 
 I recollect that it was my father who answered him, 
 " God forbid !" Mr. Burr in the course of conversation at 
 the dinner-table, observed that with two hundred men he 
 could drive the president and congress into the Potomac; 
 and with four or five hundred he could take possession of 
 the city of New York. After dinner, he walked with me to 
 my brother's, about one mile distant ; and in the course of 
 the walk spoke of military men, and asked me if either of 
 my brothers had a military turn ? He said he should like 
 to see my brother George at the head of a corps of grena- 
 diers ; he was a fine, stout-looking fellow. These circum- 
 stances induced me to speak to my father; I warned him 
 to beware of Mr. Burr, and told him that in the course 
 of that night Mr. Burr would attempt to have an inter- 
 view with him, and would make a requsition of my brother 
 Tom to go with him ; and that I suspected something 
 was going on, but what I did not know. The next morn- 
 ing I rode with Mr. Burr to the town of Washington, 
 'about nine or ten miles. We had a good deal of conver- 
 sation, principally on military affairs ; on the state of the 
 militia; the necessity of attending to military discipline. 
 He told me the effect it had in New York ; that in New 
 York the militia were in good order, which was brought 
 about by the influence and exertionsof asingle individual 
 (Colonel Swartwout). Mr. Burr asked me, if I thought 
 I could raise a regiment in Washington county ; or
 
 TESTIMONY OF GENERAL MORGAN, 563 
 
 whether I could raise one with more facility in Ne\v 
 Jersey. 
 
 Mr. Wirt. You have lived in New Jersey? Yes. 
 
 At Washington we took a walk, Mr. Burr, Colonel 
 Dupiesterand myself, down the town ; and I pointed out 
 to him the house where Mr. Bradford lived, who had been 
 at the head of the western insurrection. He inquired 
 about Mr. Bradford. (He was at Baton Rouge.) I told 
 him his son was in town, and Mr. Burr expressed a wish 
 to see him. Mr. Burr mentioned to me that he met with 
 several who had been concerned in the western insurrec- 
 tion ; and particularly a major in the North-Western Ter- 
 ritory (whose name I do not recollect) who had told him, 
 that if he were ever engaged in another business of the 
 kind, he pledged himself it should not end without blood- 
 shed. He said that he was a fine fellow. It was on these 
 circumstances that I advised my father to apprise the 
 president of the United States, that something was going 
 on. 
 
 Mr. Hay. Which way did he go ? I saw him leave 
 Washington for Wheeling. 
 
 Mr. Wirt. Were the separation of the union and mili- 
 tary affairs the predominant subject of his conversations? 
 Our conversation was very general and mixed, never 
 very long ; but these seemed to be the leading subjects. 
 
 Mr. Hay. Do you recollect anything he said about 
 Bradford's qualifications for conducting such an enter- 
 prise ? I recollect it well. He said that Bradford was 
 very incompetent to such an undertaking ; and that in 
 such a case there ought to be the utmost confidence in 
 the leader. 
 
 Mr. Wirt. At what time in the month of August 
 was this visit ? Somewhere between the 2Oth and 25th. 
 
 Mr. Hay. Perhaps the date of this letter (from the 
 prisoner to your father) may show. This letter is dated 
 on the 2 1st. 
 
 Mr. Parker (one of the jury.) Did he approve'or con- 
 demn that sentiment of the major's which you have 
 quoted ? I do not recollect. 
 
 Did he make any further remarks respecting him ? 
 He only said that he was a fine fellow, or words to that 
 effect ; that he was very fit for business of that kind.
 
 564 TRIAL OF AARON BURR. 
 
 Mr. Burr. You spoke of a letter from me to your 
 father. Do you know whether he wrote me some 
 time before, a letter of invitation to his house ? Yes ; 
 he had written about a year before to you at Pittsburg. 
 That letter is yet unsealed, in my brother Tom's bureau. 
 
 Do you remember that it was communicated to me, 
 and that that was the cause of my coming to visit him? 
 Not by myself or my brother in my hearing. 
 
 Do you remember the manner in which I introduced 
 the subject you allude to. Was it in the course of a 
 lively conversation ? Was there anything very serious 
 in it? You only mentioned it in a lively or careless 
 manner. 
 
 Did your father communicate to you, next morning, 
 our night's conversation ? Yes. 
 
 Before we rode ? No. 
 
 Do you recollect of my having made several inquiries 
 also about the seminaries of learning; and of one that 
 was projected in your neighborhood, and of my suggest- 
 ing the necessity of encouraging it ? You spoke much, 
 too, on that subject. 
 
 Did I seem to know anything of Bradford, before you 
 told me? You seemed to know a good deal about the 
 insurrection. 
 
 Did you not tell me that Bradford was a noisy fellow ? 
 I did not. I have no objections to give my opinion 
 of Mr. Bradford. I mentioned him to you as a mere 
 lawyer. 
 
 Did I seem to know that Bradford lived at Washing- 
 ton, before you mentioned it and pointed out his house? 
 You did not seem to know it. 
 
 Who were at dinner at your father's ? My father, 
 mother, wife, sister, Colonel Dupiester, Mr. T. Ewell, and 
 my brother Tom. 
 
 COLONEL MORGAN was then sworn and was proceed- 
 ing, when 
 
 Mr. Burr remonstrated against this kind of evidence, 
 consisting of conversations and previous declarations. 
 He did not mean to interrupt the inquiry, but to prevent 
 the time of the court from being wasted. Some desul- 
 tory conversation ensued upon this point, when
 
 TESTIMONY OF COLONEL MORGAN. 565 
 
 The Chief Justice said that he understood the same 
 objections would hereafter apply as well to the consid- 
 eration as to the introduction of testimony ; that these 
 objections might be hereafter urged ; and that it was im- 
 possible for the court to know the nature of the evidence 
 before it was introduced. 
 
 Mr. Hay. If the gentlemen will only have a little 
 patience, they will find that other circumstances will come 
 out to prove the materiality of this testimony, and will 
 also prove the most perfect connection between the. dif- 
 ferent parts of the conspiracy. This witness will prove 
 what was the state of the prisoner's mind in August 
 last. 
 
 Mr. Lee. I hope, then, the jury will distinctly under- 
 stand, that they are not to infer from the court's declin- 
 ing to interfere on the present occasion, that everything 
 which drops from the witness is to pass without objec- 
 tion, which may be made at any time. 
 
 Colonel Morgan (the father of the witness). There has 
 been a long acquaintance between Mr. Burr and myself. 
 He had introduced to my notice two of his nephews, 
 
 by the name of , and a third, by .the name of 
 
 Edwards, Pierrepont Edwards's son. I had received 
 many civilities from him, and had received many 
 civil letters from Mr. Burr, from New York, in conse- 
 quence of my civilities to those gentlemen. After these 
 things had passed, I had formed such a*i attachment to 
 him, that I never should have forgotten it, had not this 
 late business taken place. About three years ago, Mr. 
 Burr was under considerable, and, as I thought, unjust 
 persecution. I had then a youngerson (who is now here) 
 studying law at Pittsburg. I wished to make him known 
 to Mr. Burr, and in consequence of my friendship for him, 
 and of the great rage of persecution against him, I invited 
 him in that letter to come to see me at Morganza. In 
 all probability, I should have done the same thing, from 
 the attachment which I had conceived for him. Mr. 
 Burr, however, had left Pittsburg before my letter 
 reached it, and it remains now in my son's bureau at 
 Pittsburg. On the 24th of last August, I received a 
 letter from Mr. Burr, dated at Pittsburg, informing me 
 '.hat he should dine with me next day.
 
 566 TRIAL OF AARON BURR. 
 
 Here Mr. Hay handed the letter to Colonel Morgan, 
 who said that the letter was dated on the 2ist, and that 
 he had not for some time seen it, as he had enclosed it 
 to the President of the United States, as introductory to 
 his communication to him. 
 
 This letter was handed to me by a man who called 
 himself Count Willie, one of his attendants. I believe 
 my son did not call on me that evening ; but next morn- 
 ing I informed him, that from my great affection for Mr. 
 Burr, if I was able, I should certainly go and meet him ; 
 and I requested my son and his brother to do it, with 
 a letter of introduction, explanatory of their names and 
 their intention. What conversation took place between 
 him and my son I know not. Mr. Burr mentioned to me 
 in conversation, Colonel Dupiester, as one of the first 
 military characters of the age. I shall pass over the 
 conversation and incidents during dinner. After dinner 
 I spoke of our fine country. I observed that when 1 
 first went there, there was not a single family between 
 the Alleghany mountains and the Ohio ; and that by and 
 by we should 'have congress sitting in this neighborhood, 
 or at Pittsburg. We were allowed to sport these things 
 over a glass of wine. " No, never," said Mr. Burr, " for 
 in less than five years you will be totally divided from 
 the Atlantic states." Mr. Burr entered into some argu- 
 ments to prove why it should and must be so. The first 
 reason was, the produce of the sale of the western lands 
 being carried to the Atlantic states, and that the people 
 to the west should not be tributary to them. He said 
 that our taxes were very heavy ; and demanded why 
 we should pay them to the Atlantic parts of the country ? 
 By this time I took an opportunity to observe, " God for- 
 bid ! " I hoped that no such thing would ever happen, at 
 least in my time. This observation terminated the con- 
 versation as to that particular point. It then turned 
 upon the weakness and imbecility of the federal govern- 
 ment. 
 
 Mr. Wirt. Who started that subject ? Mr. Burr 
 started it. I don't recollect saying anything on the sub- 
 ject; but began to think that all was not right. He said 
 that with two hundred men, he could drive congress, 
 with the president at its head, into the river Potomac ;
 
 TESTIMONY OF COLONEL MORGAN. 567 
 
 or that it might be done ; and he said with five hundred 
 men, he could take possession of New York. He 
 appealed to Colonel Dupiester if it could not be done ; 
 he nodded assent. There was a reply made to this by 
 one of my sons, that he would be damned if they could 
 take our little town of Cannonsburg with that force. 
 Some short time after this, Mr. Burr went out from the 
 dining-room to the passage, and beckoned to my son 
 Thomas. What their conversation was, I can not say. 
 Soon after a walk was proposed to my son's mill, and the 
 company went. When they returned one (or both) of 
 my sons came to caution me, and said, " You may 
 depend upon it, Mr. Burr will this night open himself to 
 you. He wants Tom to go with him." After the usual 
 conversation, Mr. Burr went upstairs, and as I thought 
 to go -to bed. Mrs. Morgan was reading to me (as is 
 .usual, when the family have retired), when about eleven 
 o'clock, and after I had supposed he had been an hour 
 in bed, she told me that Mr. Burr was coming down, and 
 as she had heard my son's conversation, she added, 
 "You'll have it now." Mr. Burr came down with a can- 
 dle in his hand. Mrs. Morgan immediately retired. Mr. 
 Burr took his seat by me. He drew from his pocket a 
 book. I suppose it was a memorandum book. After 
 looking at it, he asked me if I knew a Mr. Vigo, of Fort 
 Vincent, a Spaniard. I replied, yes ; I knew him ; I had 
 reasons to know him. One was that I had reasons to 
 believe that he was deeply involved in the British con- 
 spiracy in 1788, as I supposed, the object of which was 
 to separate the states ; and which General Neville and 
 myself had suppressed. I called it a nefarious thing to 
 aim at the division of the states. I was careful to put 
 great emphasis on the word " nefarious." Mr. Burr find- 
 ing what kind of man he had to deal with, suddenly 
 stopped, thrust into his pocket the book which I saw 
 had blank leaves in it, and retired to bed. I believe I 
 was pretty well understood. The next morning Mr. 
 Burr and Colonel Dupiester went off before breakfast, 
 without my expecting it, in company with my son ; and 
 from that time to this, I have not seen him but in this 
 place. I well remember some explanatory circumstances 
 My son agreed with me that I should apprise the presi
 
 563 TRIAL OF AARON BURR. 
 
 dent of our impressions, and point out a mode by which 
 Mr. Burr might be followed step by step. 
 
 Mr. Mac Rae. After your son's observation about the 
 town ofCannonsburg and the subsequent conversation, 
 did the prisoner draw any comparison between the peo- 
 ple of the eastern and western country ? He said, "Keep 
 yourself on this side of the mountain, and you'll never be 
 disturbed." By which I understood that there was an 
 attempt to be made to effect a disunion. There is one 
 more circumstance which I must state to the court. The 
 Sunday after the judge of our circuit court dined with me. 
 I requested him to mention the circumstances to General 
 Neville, and invited him to come the following Sunday to 
 dinner, with Judges Tilghman and Roberts, for I had 
 business of the first importance to communicate. The 
 court being longer engaged than was expected, t&ey did 
 not dine with me on that day ; but they did on the follow- 
 ing Sunday. These gentlemen wrote a joint letter to 
 the president, informing him of my communications to 
 them. 
 
 Mr. Burr. What sort of a book was the one I had in 
 my hand ? It was a small book like this. [A pocket- 
 book.] 
 
 Was it bound ? It was not so large as this ; I do not 
 recollect whether it was bound, as it would not be very 
 polite in me to take particular notice of such things when 
 gentlemen are at my own house. 
 
 When you spoke of a nefarious plan, to what transac- 
 tion did you allude ? To Vigo's plan, which I conceived 
 was intended to dissever the union. 
 
 Who were present when Judge Tilghman saw you ? 
 General Neville and Judge Roberts and my son. 
 
 Was there any other from Pittsburg ? None. 
 
 Your conversation at dinner, then, was jocular about 
 the moving of congress to Pittsburg ? Was not part of 
 the conversation jocular? My manner might have been 
 jocular, but not my meaning. 
 
 Did you not once live on the Mississippi, or go to that 
 country with a design to settle there r I did, with the 
 approbation of my country, in order to take up and dis- 
 tribute lands to all my countrymen to the west of the 
 Mississippi.
 
 TESTIMONY OF THOMAS MORGAN. 569 
 
 Did you acquire any lands there ? I am told I have 
 a right to some lands there. 
 
 Where was it that you lived on the Mississippi ? At 
 New Madrid. 
 
 On which side of the Mississippi? The west. 
 
 In the Spanish territories? With the approbation of 
 the Spanish government. 
 
 How long did you live there ? About forty days. I 
 went from 'that place to New Orleans, where I detected a 
 British spy. 
 
 In what year? In 1788. 
 
 GENERAL MORGAN was then called in at the request of 
 the prisoner. 
 
 Mr. Burr. In what state of mind was your father 
 when General Neville and Judge Tilghman were there? 
 He had lately had a fall which had done him consider- 
 able injury. 
 
 I mean as to his capacity. Did you not make some 
 apology to Judge Tilghman for the state of his mind ? 
 I did tell Judge Tilghman that my father was old and 
 infirm ; and like other old men, told long stories, and was 
 apt to forget his repetitions. 
 
 Mr. Mac Rae. What did the prisoner say ? When 
 Mr. Burr said that with two hundred men he could drive 
 the president and congress into the Potomac, I must con- 
 fess that I felt myself hurt and replied with some warmth, 
 " I'll be damned, sir, if you could take the little town of 
 Cannonsburg with that force." Mr. Burr replied, " Con- 
 fine yourself to this side of the mountain, and it is an- 
 other thing." 
 
 Do you recollect whether anything were said concern- 
 ing the people on the eastern and western sides of the 
 Alleghany? He answered, "Confine yourselves on this 
 side of the mountain, and it is another thing." 
 
 Mr. Baker objected to this examination by Mr. Mac 
 Rae as improper. 
 
 Mr. Burr. Do you recollect that the probability of a 
 Spanish war was mentioned ? It was a general subject 
 of conversation between Mr. Burr and myself. 
 
 THOMAS MORGAN was next sworn ; his evidence was as
 
 570 TRIAL OF AARON BURR. 
 
 follows : On the evening of the 2ist of August, my father 
 received a letter from Pittsburg by the hands of some 
 person, the signature of which was Aaron Burr. In that 
 letter the writer Communicated his intention of dining 
 with my father on the following day ; he also mentioned 
 that he should take the liberty of introducing a friend. 
 My father requested my brother and myself to meet him, 
 which we accordingly did. Nothing of importance oc- 
 curred during our ride, in my presence. Mr. Burr rode 
 generally with my brother, Colonel Dupiester was often 
 with myself, and sometimes we were promiscuously to- 
 gether. Whilst we were at and after dinner, Mr. Burr 
 emphatically, as I thought, confidently, and with great 
 earnestness, said that we (meaning the people of the 
 west) would be separated in five years from the Atlantic 
 states ; the Alleghany mountains to be the line of divi- 
 sion. He said that great numbers were not necessary to 
 execute great military deeds ; all that was wanting was 
 a leader, in whom they could place confidence, and who 
 they believed could carry them through. This conver- 
 sation occurred during dinner. He said that with five 
 hundred men New York could be taken ; and that with 
 two hundred, congress could be driven into the Potomac 
 river. To the last observation, my brother, I think, in- 
 dignantly replied : " By God ! sir, with that force you 
 can not take our little town of Cannonsburg." Mr. Burr's 
 reply to this observation was, " Confine yourself to this 
 side of the mountain, and I'll not contradict you;" or 
 words to that effect. Mr. Burr withdrew from the room 
 where we dined, and on reaching the door leading into 
 the entry invited me, by a nod, to go with him. When 
 we had arrived at the back door of the entry, out of hear- 
 ing of any other person, Mr. Burr inquired what my pur- 
 suits were. I informed him that I was studying the law. 
 He then said he was sure I could not find employment 
 for either body or mind; but he did not further explain 
 himself. He said that there were, or asked if there were 
 not, a number of young men in Pittsburg similarly situa- 
 ted. ' He said that under our government there was no 
 encouragement for talents; that John Randolph had de- 
 clared on the floor of congress, that men of talents were 
 dangerous to the government. He asked me how or
 
 TESTIMONY OF JACOB ALLBRIGHT. 57! 
 
 whether I would like a military expedition or enterprise ? 
 (I can not recollect which, but it was some such expres- 
 sion.) My answer was, " It would entirely depend upon 
 the object or cause for which I was to fight." I think 
 previously, or certainly soon after, he said, " I wish you 
 were on your way with me." After asking Mr. Burr 
 concerning a young man (Mr. Duer) living at New Or- 
 leans, with whom I had a slight acquaintance, he said he 
 was doing well ; and he then spoke of Duer's brother, of 
 whom I knew nothing, who was also doing well, as a law- 
 yer, but he had much rather be at the head of a military 
 corps. Mr. Morgan then proposed to state the steps 
 which his father had taken to defeat Mr. Burr's projects, 
 when he was stopped by the court. 
 
 Mr. Burr. Had you ever spoken to me before ? 
 Never. 
 
 Did you not mention, with some complaints, the neg- 
 lect which your education had received? No. 
 
 Did you not complain about wasting your time? I 
 'recollect nothing on that subject, but your remark, that 
 I could not surely find employment for either body or 
 mind. 
 
 Mr. Wirt. Do you recollect your answer to Mr. Burr's 
 observation, that he would like to see you on your way 
 with him ? I do not recollect except what I have stated 
 already. Here our conversation ended. 
 
 Mr. Hay. Do you recollect when you said that your 
 liking a military life would depend on the object or cause 
 in which you were engaged, whether anything more was 
 said by Mr. Burr? No. 
 
 JACOB ALLBRIGHT was then called and sworn. 
 
 Mr. Hay. Our object is to prove by his testimony 
 the actual assemblage of men on Blannerhassett's island, 
 and it goes of course to prove the overt act. 
 
 Jacob Allbright. The first I knew of this business was, 
 I was hired on the island to help to build a kiln for dry- 
 ing corn ; and after working some time, Mrs. Blanner- 
 hassett told me that Mr. Blannerhassett and Mr. Burr 
 were going to lay in provisions for an army for a year. 
 I went to the mill, where I carried the corn to be ground 
 after it had been dried. I worked four weeks on that
 
 572 TRIAL OF AARON BURR. 
 
 business in the island. Last fall (or in September) after 
 Blannerhassett had come home (he had been promising 
 me cash for some time), I stepped up to him. He had 
 no money at the time, but would pay me next day or 
 soon. Says he, " Mr. Allbright you are a Dutchman." 
 But he asked me first and foremost, whether I would not 
 join with him and go down the river? I told him I did 
 not know what they were upon ; and he said " Mr. 
 Allbright, we are going to settle a new country." And I 
 gave him an answer that I would not like to leave my 
 family. He said he did not want any families to go 
 along with him. Then he said to me, " You are Dutch- 
 man, and a common man ; and as the Dutch are apt to 
 be scared by high men, if you'll go to New Lancaster, 
 where the Dutch live, and get me twenty or thirty to go 
 with- us, I will give you as many dollars." New Lancas- 
 ter was some distance off. I went home then, and gave 
 him no answer upon that. In a few days after, the boats 
 came and landed at the island. The snow was about two 
 or three inches deep, and I went out a-hunting. I was 
 on the Ohio side ; I met two men ; I knew they belonged 
 to the boats, but I wanted to find out ; and they asked 
 me whether I had not given my consent to go along with 
 Blannerhassett down the river? As we got into a con- 
 versation together they named themselves Mr. Burr's 
 men, belonging to the boats, landed at the island. When 
 they asked me whether I had not consented to go'down 
 with Blannerhassett, I put a question to them. I told 
 them I did not know what they were about ; and one of 
 the gentlemen told me, they were going to take a silver 
 mine from the Spanish. I asked the gentlemen whether 
 they would not allow that this would raise war with 
 America ? They replied, no. These were only a few 
 men ; and if they went with a good army, they would 
 give up the country and nothing more said about it. I 
 had all this conversation with the two men. These men 
 showed me what fine rifles they had, going down the 
 river with them. Then I went to the island and Blan- 
 nerhassett paid me off in Kentucky notes. People, how- 
 ever, didn't like these notes very well, and I went over to 
 the bank at Kanawa to change them. I got two of the 
 notes changed ; and one, a ten-dollar note, was returned
 
 TESTIMONY OF JACOB ALLBRIGHT. 573 
 
 to my hand for which I wished to get silver from Blan- 
 nerhassett. I went to the island the day the proclama- 
 tion came out. But before I went to Blannerhassett's 
 house, I heard he was not at home, but at Marietta. I 
 went on the Virginia side, where I met three other men 
 belonging to the boats, with three complete rifles. They 
 made a call upon me to take them to the island in my 
 canoe, and I accepted [excepted or refused] to it ; but 
 afterwards I carried the third man, who stood close by my 
 canoe, over to the island. After being some time on the 
 island, I went down to the four boats. Blannerhassett 
 was not at home yet ; and I met some of the boat people 
 shooting at a mark. They had a fire between the bank 
 and boats. I saw this in the day time. 
 
 Mr. Hay. How many boats were there ? Four. 
 
 I waited at the house till Blannerhassett came home. 
 He appeared very much scared. One of the boatmen 
 came up to him for something, and he told him, " Don't 
 trouble me ; I have trouble enough already." He went 
 up to his chamber, and I saw no more of him. I asked 
 an old gentleman who was there, and with whom I was 
 well acquainted, to go up to his chamber and change my 
 note for silver. He did go, and brought me silver. By 
 and by I heard that they were going to start that night. 
 Thinks I, " I'll see the end of it." This was the night 
 of the very day that Blannerhassett got back from 
 Marietta. He got back before night. When night came 
 on, I was among the men, and also in the kitchen; and 
 saw the boatmen running bullets. One of them spoke 
 out to the others," Boys, let's mould as many bullets as we 
 can fire twelve rounds." After that,*I saw no more till 
 after twelve o'clock at night. Then Blannerhassett came 
 down from the chamber, and called up some of his ser- 
 vants ; he had four or five trunks. There were not 
 Crusty hands enough to carry them to the boats ; and 
 some person called out my name, and asked me to help 
 them ; and I carried one of the trunks and moved along 
 with them. When we got down, some person, I don't 
 particularly know who, but think it was Blannerhassett 
 himself, asked me to stand by the trunks till they were 
 put in the boats. When the last of them went off, I saw 
 men standing in a circle on the shore. I went up to
 
 574 TRIAL OF AARON BURR. 
 
 them ; perhaps they were five or six rods fVom me. The 
 first thing that I noticed, was their laying plans and con- 
 sulting how Blannerhassett and Comfort Tyler should get 
 safe by Galliopolis. One Nahum Bennett [perhaps Bent] 
 was called forward, and when he came, Blannerhassett 
 asked him whether he had not two smart horses? 
 Nahum Bennett answered no ; he had but one. Then 
 Blannerhassett told him to go to Captain Dennie, and 
 get his sorrel horse ; and Nahum Bennett told him that 
 the sorrel horse had no shoes on ; and Blannerhassett 
 said the roads were soft, and would not hurt the horse. 
 Blannerhassett told Nahum Bennett to meet him and 
 Comfort Tyler with the horses somewhere about Gal- 
 liopolis ; Bennett inquired how he was to find him out; 
 should he inquire for him ? " No." " Have you no 
 friends there?" " No." Mrs. Blannerhassett then 
 came forward, and she told Blannerhassett and Comfort 
 Tyler, that they must take a canoe and get into it before 
 they got to Galliopolis, and sail down 'the stream of the 
 Ohio ; for nobody would mind a couple of men going 
 down the stream. She said " she'd" pay for the canoe. 
 Blannerhassett told Nahum Bennett to take the two 
 horses and pass round Galliopolis before day, and then 
 they might surround [go round] Galliopolis. After that 
 a man by the name of Tupper laid his hands upon Blan- 
 nerhassett, 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 levelled 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 
 lieve as not." Tupper then changed his speech, 
 and said he wished him to escape safe down the 
 river, and wished him luck. Tupper before told 
 Blannerhassett he should stay and stand his trial. But 
 Blannerhassett said no ; that the people in the neigh- 
 borhood were coming down next day to take him, and 
 he would go. Next day after I saw the Wood county 
 militia going down. The people went off in boats that 
 night about one. 
 
 All? All but one, who was a doctor. All belonging
 
 TESTIMONY OF JACOB ALLBRIGHT. 575 
 
 to the boats had some kind of arms. Some of the boats 
 were on the shore and some not. 
 
 Mr. Hay. How many men were there in all ? About 
 twenty or thirty ; I did not, however, count them. Every 
 man belonging to the boats that I took notice of had 
 arms. 
 
 Mr. Coleman (one of the jury). What day, month, or 
 year was this ? In the fall of the year. I don't ^recol- 
 lect the month or particular time, but there was snow on 
 the ground. 
 
 Mr. Hay. Do you recollect whether it snows in Sep- 
 tember ? I do not know. 
 
 Mr. Sheppard (one of the jury). Was Tupper a mag- 
 istrate or officer ? I know not. 
 
 Where had Blannerhassett been ? In Kentucky. 
 
 Mr. Wirt. Had you seen Mr. Burr on the island ? 
 Yes. 
 
 Was he there before Blannerhassett went to Kentucky ? 
 He was. 
 
 Did you speak of the boats under the command of 
 Tyler? I did. 
 
 Did the boats quit the island at the time of hearing 
 about the proclamation ? Yes. 
 
 Did the Wood county militia go there next day ? Yes. 
 
 Mr. Parker (one of the jury). Did you hear Peter 
 Taylor give advice ? I did not. 
 
 Mr. Parker. Did you see Peter Taylor converse with 
 Blannerhassett that night? I do not recollect; I was 
 busy about the boats. 
 
 How long did Aaron Burr remain on the island ? I do 
 not recollect. 
 
 How long had he been there before the departure of 
 the boats ? To this question he first answered that he 
 did not know; and that Mr. Burr never returned back to 
 the island ; but after some reflection he said that he had 
 been there about six weeks before the departure of the 
 boats. 
 
 Mr. Sheppard (one. of the jury). How long was Blan- 
 nerhassett absent? I don't know. I did not live on the 
 island. 
 
 Mr. Burr. Was that Mr. Tupper called General Tup- 
 per ? He was.
 
 576 TRIAL OF AARON BURR. 
 
 Did you know General Tupper? Yes. 
 
 Is that the gentleman ? [pointing to General Tupper, 
 who was present in court]. Yes. 
 
 When the muskets were levelled at him did they seem 
 to have a mind to hurt him ? Yes. A gentleman near 
 me said, " I'd as lieve shoot as not." 
 
 You said differently on a former occasion. Don't you 
 recollect making a statement in which nothing was said 
 about levelling guns at him ? and that it looked like ex- 
 ercising? I do not. 
 
 A desultory conversation here ensued between the op- 
 posite counsel. 
 
 Mr. Burr professed that it was his intention to degrade 
 the witness by invalidating his credibility. 
 
 Mr. Hay said that it was very probable, if this man had 
 at different times stated what seemed to be contradictory, 
 he did it through ignorance ; and Mr. Burr insisted that 
 an error through ignorance might be as injurious to him 
 as an error through immorality; he cared not which ; that 
 the consequences to him were in both cases the same. 
 
 Mr. Burr. Have you not been examined before ? 
 Yes. 
 
 By whom ? By 'Mr. Jackson. 
 
 Had he not printed questions in his hand ? He had a 
 paper in his hand. 
 
 Did he set down your answers ? Yes. 
 
 How long after the guns were pointed at General Tup- 
 per, before the men went to their boats ? I do not recol- 
 lect. Anything that I am not certain of I can not speak to. 
 
 Was Mrs. Blannerhassett there when the guns were 
 pointed ? Yes. 
 
 Was Tupper inside of the circle? Yes. 
 
 Was she too? I don't recollect. 
 
 Did you see Mr. Woodbridge there? I don't know 
 him. He lived in the state of Ohio. 
 
 How long did you work with Blannerhassett? Six 
 weeks. 
 
 At what time was it that you saw me there ? I do not 
 recollect. 
 
 Mr. Burr. The counsel for the United States know, 
 I presume, this circumstance, and have testimony to as- 
 certain it.
 
 TESTIMONY OF JACOB ALLBRIGHT. 577 
 
 Mr. Hay. We have not, as far as I am informed. 
 
 Mr. Burr. If they have no objection, I will state when 
 I was on the island. 
 
 Mr. Hay said he had not. 
 
 Mr. Burr then said that it was on the last day of Au- ' 
 gust and the first of September that he was on the 
 island. 
 
 Were the boats in the stream or close to the land, 
 when General Tupper wished them good luck? In 
 shore. 
 
 Mr. Anthony (one of the jury). Did you see any pow- 
 der? No. 
 
 Mr. Hay. Were you in the boats? I was not. 
 
 Mr. Burr. Where does General Tupper live? In 
 Marietta. 
 
 Does he not belong to the state of Ohio? Yes. 
 . When did you first know him ? Last fall. 
 
 Mr. Parker. Where did you live before you went to 
 work on the island ? About a mile from the island. 
 
 Mr. Burr then asked the clerk for the statement which 
 he had taken of Allbright's testimony, when it was sub- 
 mitted to the court on a former occasion on the motion 
 for binding himself in a higher bail. 
 
 The clerk handed him the copy, and the prisoner pro- 
 ceeded with the examination. 
 
 Mr. Burr. You said before that the men who raised 
 their muskets against General Tupper were not in earn- 
 est ? That was a piece of my opinion. I did not know 
 whether they were in earnest, as there was no quarrel 
 'among them, and no firing afterwards. 
 
 o o 
 
 Mr. Carrington (one of the jury) reminded him of an 
 expression of one of the party : "I had as lieve as not 
 shoot," which showed that they were in earnest. 
 
 Mr. Burr. I beg the court to call on the prosecution 
 for the deposition of this witness, taken before John G. 
 Jackson. 
 
 Mr. Hay said that he would not let gentlemen have 
 access to his portfolio when they pleased; that he must 
 be satisfied by reasons assigned or required by the order 
 of the court before he produced it. 
 
 The Chief Justice was not satisfied that the court had 
 a right to call for the affidavit. 
 
 I. 37
 
 578 TRIAL OF AARON BURR. 
 
 Mr. Wickham said it was obvious that there were cer- 
 tain suspicions attached to the credibility of the witness ; 
 and that it was their desire to compare his present testi- 
 mony with his former affidavit. 
 
 Mr. Hay observed that Mr. Jackson might not have 
 taken down the testimony of the witness in his language, 
 but couched it in his own ; hence there might be an ap- 
 parent variation between the present evidence and the 
 affidavit but that there was no real variance ; that the 
 object of Mr. Jackson's taking his affidavit was merely to 
 ascertain whether he were possessed of any useful infor- 
 mation, and to know whether he ought to be summoned 
 as a witness or not ; that this was the object in taking all 
 the testimony which had been collected ; that his affidavit 
 was therefore general; but that the man, after finding 
 that he was to be summoned as a witness, had revolved 
 the subject in his own mind, and recollected many cir- 
 cumstances which had not before occurred to him. 
 
 Mr. Burr. We have a right to coerce this paper. If 
 gentlemen will not surrender it, I may at all events avail 
 myself of their refusal. My object is to prove such a 
 diversity between the statements of the witness at differ- 
 ent times, as may destroy all faith in his recollection. 
 
 Mr. Hay. Then, sir, although I might retain this 
 paper, the gentlemen are welcome to make all the use of 
 it they can. Take it. 
 
 Mr. Burr then proceeded. When you said that all had 
 guns, did you mean to say that all in the circle, or all of 
 them together, without exception, had arms ? There were 
 seven or eight who had guns, and there were other arms ; 
 but there might be more men than guns. 
 
 How many were in the circle? I did not count them. 
 
 What kind of guns had they ? Rifles and short guns. 
 
 Did you see any guns with bayonets? I saw none. 
 
 Mr. Mac Rae. W 7 hen did you see most arms? in the 
 day, or in the night? I saw more arms in the day; but 
 it was in the night that I saw most armed men. 
 
 Mr. Parker (one of the jury). Why did you think that 
 all of them had arms? Because I was with them almost 
 all night. In the day, I saw some of them shooting at 
 marks ; and I saw other arms at that time lying upon the 
 beach.
 
 TESTIMONY OF WILLIAM LOVE. 579 
 
 Mr. Wickham. Did you see them all with arms at 
 once? No. 
 
 How many arms did you see in the whole, or at any 
 one time and place together? I can not tell. 
 
 Did you know the men who had arms ? I did not. 
 
 Did you know the names of the other men ? No. 
 
 Would you know any of them if you saw them ? I 
 would not. They are all strangers to me. 
 
 How could you distinguish the arms seen in the day- 
 time, from those seen late in the enening, or at night ? 
 I can not answer. 
 
 PETER TAYLOR was then called, and 
 
 Mr. Hay asked him whether he had not seen Mr. Burr 
 on the island? He answered that he had not. 
 Mr. Burr. If gentlemen have now done with the 
 overt act, or when they have done, I will thank them to 
 inform me ; for then we shall have some considerations 
 to offer to the court. 
 
 Mr. Hay. We have other additional testimony to 
 offer on this very point ; the assemblage of men on the 
 island. 
 
 MAURICE P. BELKNAP was then called, but did not 
 answer. 
 
 WILLIAM LOVE was then sworn. 
 
 Mr. Hay. Were you on Blannerhassett's island ? 
 Yes ; but I was not there at the time when Colonel 
 Tyler's boats arrived there. I was then at Marietta ; 
 and it was on Sunday that I went down in a skiff with 
 two barrels of salt. 
 
 How many boats were at the island? Four. 
 
 How many men ? I can not tell you ; but I suppose 
 about between twenty and twenty-five belonging to Col- 
 onel Tyler's boats. When I arrived at the island, Blan- 
 nerhassett met me. 
 
 Did you see any arms ? I saw the men and rifles. I 
 know that Mr. Blannerhassett took away with him one 
 brace of horse pistols and a brace of pocket pistols and a 
 a dirk. Some fusees were put in the boat; but not more 
 than three or four, all belonging to him.
 
 580 TRIAL OF AARON BURR. 
 
 And what arms had Tyler's men? Pistols, dirks, and 
 rifles, they brought there ; but all were not armed with 
 rifles. I know not whether they were armed with differ- 
 ent things. Some of the men had guns, some had dirks. 
 Being, as how, Mr. Blannerhassett's servant, that is his 
 groom, I went down to the river with him. 
 
 Did you see Taylor and Allbright there ? I knew 
 Peter Taylor very well. I saw him there the morning 
 of the day I went away ; and I saw Allbright also. I saw 
 Mr. Woodbridge too. 
 
 What time did you set sail ? We were the last to em- 
 bark ; and we started between twelve and one, as well as 
 I can recollect. We parted with General Tupper in the 
 greatest friendship, so I understood from others. I do 
 not know that I saw him. I was the last man who went 
 into the boat. 
 
 Did you see the prisoner on the island? I never saw 
 Mr. Burr on the island. I first saw him at Natchez about 
 two and a half years ago. 
 
 What took place after you left the island? That night 
 was very cold. The next morning we stopped and 
 made fires. Mr. Blannerhassett and Colonel Tyler went 
 ashore and called the company together; and the best I 
 could make oufwas, I understood that the Governor of 
 Ohio had uttered state-warrants against Mr. Blannerhas- 
 sett and Tyler ; and that they wanted to make their 
 escape as fast as possible. I went down with the party 
 to Bayou Pierre, where 
 
 Mr, Burr expressed a wish that the attention of the 
 witness should be at present confined to the transactions 
 on the island. He said that gentlemen ought to confine 
 themselves to evidence of the overt act ; that they would 
 submit the question to the court ; that it would be too 
 late to discuss the question, whether the evidence ought 
 to be submitted to the jury, after it should have been all 
 heard. 
 
 Mr. Martin. Gentlemen had better confine them- 
 selves to facts within the district of Virginia. When 
 they travel beyond the district, we shall have some im- 
 portant questions to bring forward. We shall object to 
 the production of such evidence. 
 
 Mr. Hay acquiesced for the present in this arrangement.
 
 TESTIMONY OF WILLIAM LOVE. 581 
 
 Mr. Burr. Were not some of Mr. Blannerhassett's 
 clothes put up in the boats? Yes. 
 
 Did you not assist in putting those things in the 
 boats? Yes. 
 
 Were not his books put in boxes and trunks? None 
 that I ever saw. 
 
 How long had you lived with Blannerhassett? Ten 
 or twelve days before we started. 
 
 How many guns had the party ? I do not know ; 
 many of the young men that came down with Tyler were 
 out a-gunning. 
 
 Did you see anything like a military appearance ? 
 The men were in a state of preparation to defend them- 
 selves, because they expected people from the mouth 
 of the Kenawa to attack Blannerhassett and the island. 
 And to the best of my opinion, they did not mean to be 
 killed, without some return of the shot. It was said at 
 Marietta, that the people of Kenawa were to attack 
 them ; and I suppose they would have done their best 
 to defend themselves. I should be sorry if a man slapped 
 me on my face without returning the blow. 
 
 Was there no disturbance among the party on the 
 island? None; I did not part from my friends in 
 England more comfortably than in parting with the peo- 
 ple on the island. 
 
 Were they in fear of being attacked when they 
 first met together? Not till Tyler's boats came down. 
 I do not recollect to have seen General Tupper there. 
 
 Mr. Parker (one of the jury). Did you ever see all the 
 men with arms? I can not say When I got to the 
 mouth of Cumberland river I saw a chest of arms 
 opened. 
 
 Mr. Mac Rae. Were any chests of arms put into the 
 boats when you left the island ? Not that I know. They 
 might or might not have been put on board without my 
 seeing them. Many things were put into the boats before 
 I got in. 
 
 Mr. Parker. Had you no conversation with Blanner- 
 hassett about the expedition ? Only that if I did not 
 choose to go with him he would recommend me to some 
 traveling gentleman as a servant ; or, if I went to the 
 .Washita, he would make me a present of a piece of land.
 
 582 TRIAL OF AARON BURR 
 
 Mr. Burr. Did you see any arms but those belonging 
 to Blannerhassett ? I did not. 
 
 Did you see any guns presented? I did not. 
 
 Were they mostly young gentlemen who came in the 
 boats? They looked like young gentlemen in that 
 country. 
 
 Mr. Wirt. Why did they go away in the night? 
 They were afraid of being taken by warrants issued by 
 the governor of Ohio. 
 
 Mr. Mac Rae. Was the chest which you saw opened 
 at the mouth of Cumberland, the same as those that you 
 saw go from the island ? No. 
 
 What did you think of this business ? I understood 
 the object of the expedition was to settle Washita lands. 
 
 Mr. Hay. What kind of looking men were they? 
 They looked like gentlemen such as live upon their own 
 property. 
 
 Did they look like men used to work ? They did not. 
 
 When did you see Mr. Blannerhassett that night down 
 at the beach ? Late that night ; it was a very cold night, 
 raining and feezing; it was generally expected that the 
 people would come and destroy Blannerhassett's house. 
 
 Mr. Parker (one of the jurymen). Did you see any 
 bullets run ? Yes ; but I do not know how many. I 
 was a servant in the house, but could not mind my own 
 business and other people's too. 
 
 DUDLEY WOODBRIDGE was next sworn. 
 
 Mr. Hay. Were you on the island when the boats 
 left it ? I slept there that night. 
 
 Mr. Wirt. What party do you mean ? I allude to 
 the four boats with Comfort Tyler, Mr. Smith, and others. 
 
 Were you at the boats? I passed them about dusk. 
 
 Did you see any of the men ? I came to the island 
 about dusk. I saw five or six standing about the boats. 
 I went directly up from the landing to the house, and 
 saw fifteen or twenty men in one of the rooms of Mr. 
 Blannerhassett's house. 
 
 Had they any arms in their hands when you saw them ? 
 I recollect to have seen no arms, but two pair of pistols 
 on the bureau of the room where I slept, which were gone 
 in the morning.
 
 TESTIMONY OF DUDLEY WOODBRIDGE. 583 
 
 Mr. Hay. Had you no communication with Mr. Burr 
 or Mr. Blannerhassett about this expedition? Will you 
 inform us what you know on this subject? About the 
 beginning of September or last of August, Mr. Blanner- 
 hassett (with whom I had been connected in commercial 
 business for six or eight years past, under the firm of 
 Dudley Woodbridge and Company) called with Mr. Burr 
 at our counting-house at Marietta. Mr. Blannerhassett 
 observed that Mr. Burr wished us to purchase a quantity 
 of provisions. I am not positive that Mr. Burr was pres- 
 ent when he first mentioned the subject, but I think he 
 was. Mr. Burr then went into an inquiry about the 
 prices of different kinds of provisions, and the expense of 
 boats best calculated to carry provisions up and down 
 the river. After his making a number of inquiries and 
 receiving such information as I could give him, he left a 
 memorandum of such provisions as he wanted, and of the 
 boats which he wished to have built. They were to be 
 on the Schenectady model, such as are used on the Mo- 
 hawk fiver. The number ordered was fifteen ; only 
 eleven were completed. 
 
 What were their dimensions? Principally ten feet 
 wide and forty feet long; five were to be ten feet longer. 
 
 What provisions were ordered ? Pork, flour, whiskey, 
 bacon and kiln-dried meal ; but no article was purchased 
 but pork, the prices in our market being much higher 
 than those limited in the memorandum. I immediately 
 made a contract with Colonel Barker to build the boats, 
 and proceeded to make arrangements for purchasing pro- 
 visions. The boats were built up the Muskingum, about 
 seven miles above Marietta, and were to be delivered on 
 the 9th of December. On that morning when 'they were 
 to be brought down (the Qth of December), I saw some 
 six or eight armed men of the militia going to take 
 possession of the boats. I set off for Blannerhas- 
 sett's island, but met Mr. Blannerhassett, Comfort 
 Tyler, Mr. Smith, and some young men from Belpre' 
 going up to take down the boats. I informed them 
 of the proceedings at Marietta, and advised Mr. 
 Blannerhassett not to go up. After some consultation 
 he determined not to go up, and returned to the island. 
 I went back to Marietta to get some money and papers
 
 584 TRIAL OF AARON BURR. 
 
 and returned that evening to the island after getting 
 the papers. 
 
 Mr. Hay. On what terms was the contract for the 
 boats made? I made the contract for the boats with 
 Mr. Burr, and agreed to take a draft on New York. 
 When Mr. Blannerhassett handed me the draft, I 
 expressed my dissatisfaction at the long sight at which it 
 was drawn (being ninety days), observing that it would 
 not become due until after the time in which the boats 
 and provisions were to be delivered, and that I wished 
 to run no hazard. Mr. Blannerhassett with some warmth 
 asked me if I doubted Mr. Burr's honor? When I 
 repeated that I wished to run no risk, he said that he 
 would guarantee the draft and be answerable himself; 
 and that in the event of its not being paid, I might 
 charge it to him. The draft was drawn by Mr. Burr on 
 Mr. Ogden of New York. These were the boats which 
 Smith, Tyler, Blannerhassett, and the young men were 
 going up to receive. 
 
 Mr. Hay. Do you recollect where the boats were to 
 be delivered by the contract ? Colonel Barker undertook 
 to bring them, but there was no contract to deliver them 
 at any particular place. 
 
 Mr. Parker. Did you say that it was the Qth day 
 of December that the boats were to go away? The 
 boats were to be delivered on the gth, but those that 
 were at the island went away on the roth, When Colo- 
 nel Barker was bringing them to Marietta, they were 
 taken by General Buel, as I understood by order of the 
 Governor of Ohio. 
 
 Mr. Mac Rae. State what occurrences took place on 
 the islancl ? I arrived about dusk, and immediately 
 inquired about Mr. Blannerhassett. I stated to him that 
 I was ready to adjust our partnership concerns, and that I 
 had brought down the money and papers for that purpose. 
 We went upstairs ; we were two hours engaged in the 
 business; after settling which I set off to go across the 
 river home, and met Mr. Belknap at the shore. He 
 asked me to go back with him, that he had business to 
 do. I returned with him. We both went to bed at nine 
 o'clock at night, where I remained, and did not, as the 
 witness Peter Taylor states, go to the shore with the
 
 TESTIMONY OF DUDLEY WOODBRIDGE. 585 
 
 party when they went off. His saying that I was there 
 then is a mistake, as this gentleman [Mr. Belknap] can 
 prove. 
 
 Mr. Hay. State to the court and jury, for whom the 
 boats were built. Was the contract made for the com- 
 pany ? Yes ; it may be so considered ; but it was not 
 particularly specified. Mr. Blannerhassett first introduced 
 the subject and Mr. Burr then spoke. As to the use for 
 which these boats were intended, Mr. Blannerhassett 
 made some communications to me respecting it. Shall I 
 now state to the court these communications? [He was 
 requested to proceed.] Late in August or early. in Sep- 
 tember, Mr. Blannerhassett mentioned to me, that he 
 had embarked in an enterprise with Mr. Burr ; that Gen- 
 eral Eaton and some others were engaged in it ; and that 
 the prospects were flattering. Our first conversation 
 lasted but a few minutes. The next week I was at the 
 island, when he went into further particulars. From 
 what he stated, the inference I drew was, that hisobject 
 was Mexico. He did not positively say so, but I inferred 
 it from several circumstances, particularly from a map of 
 that country which he showed me. He spoke highly of 
 the country ; stated its advantages, wealth, fertility, and 
 healthiness. He asked me if I had a disposition to join ? 
 I evaded his question, but could not forbear telling him 
 that I preferred my situation to an uncertainty (which 
 was the same as declining it). On the way up to Marietta 
 he observed, that he did not wish me to say anything 
 about his conversations on this subject. This is the sub- 
 stance of my testimony. 
 
 Mr. Hay. Do you recollect any further details of the 
 plan or object of the expedition ? I do not. 
 
 Mr. Hay. What became of the boats and the pork 
 you purchased ? The pork was taken and sold by order 
 of the president or government ; it was sold, as I 
 understood, by General Buel. The boats, or a part 
 of them, were afterwards fitted out by the government 
 for transports to convey troops from Marietta to St. 
 Louis. 
 
 Mr. Burr. Do you recollect that I told you, that 
 I wanted the description of boats used in the Mo- 
 hawk river ; and were they not made for shoal water, and
 
 586 TRIAL OF AARON BURR. 
 
 to go up the stream ? You did. The boats were to be 
 calculated for shallow water. 
 
 Mr. Burr. You know Mr. Blannerhassett well. Was 
 it not ridiculous for him to be engaged in a military en- 
 terprise ? How far can he distinguish a man from a 
 horse? Ten steps? He is very near-sighted. He can 
 not know you from any of us, at the distance we are now 
 from one another. He knows nothing of military affairs. 
 I never understood that he was a military man. 
 
 What became of his library? Part of it was carried 
 down by Mrs. Blannerhassett ; the residue was left 
 behind, and has been- since sold. 
 
 Do you recollect when I was at Marietta ? Was it not 
 about the last of August or first of September? I left 
 Philadelphia about the middle of August, and on my re- 
 turn, I saw you about the time you mention. I have 
 never heard that you have been there since. 
 
 What became of the draft on Mr. Ogden for two thou- 
 sand dollars? It was paid. 
 
 What of quantity pork did you purchase for me ? 
 About one hundred barrels. 
 
 At what price ? It cost about twelve and was charged 
 at thirteen dollars per barrel. 
 
 What became of it? I stored it in Mr. Green's cellar, 
 adjoining our store; it was taken and sold by General 
 Buel, by order of the government, as already mentioned ; 
 that is as I understood. 
 
 To whom did you consider the pork as belonging when 
 seized? Whose loss was it ? Yours or mine? It may 
 hereafter become a dispute. 
 
 What were the boats estimated to be worth ? Colonel 
 Barker's bill for the eleven boats, amounted to twelve 
 or thirteen hundred dollars. 
 
 Mr. Martin. W T ere you at any time that evening on 
 the water's side, with Mr. or Mrs. Blannerhassett? I was 
 not. 
 
 Mr. Wirt. You were asked, sir, about Mr. Blanner- 
 hassett's military talents ? Permit me to ask you what 
 were his pecuniary resources ; what was the state of his 
 money matters ? I believe they are not as great as was gen- 
 erally imagined. I gave him six thousand dollars for one 
 half of his profits of our business ; he had about three
 
 TESTIMONY OF DUDLEY WOODBR1DGE, 587 
 
 thousand dollars in stock in our company's concern. His 
 fortune is much less than is generally understood. He 
 had not over five or six thousand dollars in the hands of 
 his agent at Philadelphia. His island and improvements 
 cost about forty or fifty thousand dollars. It would not, 
 however, sell for near that sum, except to a person of 
 the same cast with Mr. Blannerhassett. After building 
 his house, his property, exclusive of the island and five 
 negroes, amounted probably to seventeen thousand 
 dollars. 
 
 Mr. Coleman (a juror). Explain again, if you please, 
 in what did that property consist, and how much money 
 could he command? He had nine thousand dollars in 
 my hands in stock and profits already stated, and about 
 one thousand dollars on another account, and the money 
 in his agent's hands, besides his island and negroes. 
 
 Had he no foreign funds ? I think he had none. They 
 were invested in American stock some years before. 
 
 What -was the amount of property he had in these 
 funds ? I believe the property left him by his father 
 amounted to twenty thousand pounds sterling, which he 
 vested in British three per cent, stock. 
 
 Mr. Wirt. Is he esteemed a man of vigorous talents ? 
 He is; and a man of literature. But it was mentioned 
 among the people in the country, that he had every kind 
 of sense but common sense ; at least he had the reputa- 
 tion of having more of other than of common sense. 
 
 What are his favorite pursuits? Chemistry and 
 music. 
 
 Mr. Hay. Was Mr. Burr to have returned to the 
 island. I believe so ; I expected him to have returned 
 in about two months, the time for the delivery of the 
 boats. 
 
 Had you received any money from Burr before the 
 presentation of the draft by Blannerhassett? The 
 draft was at so long a sight, that I objected to letting 
 the property out of my hands, till I was secured by the 
 responsibility of Mr. Blannerhassett. The balance over 
 the two thousand dollars (the amount of the draft on 
 Ogden) was to be paid by Mr. Burr on his return. He 
 was to return in two months and to complete the pay- 
 ment when the property was delivered.
 
 583 TRIAL OF AARON BURR. 
 
 Did Mr. Blannerhassett bring you the draft ? He did ; 
 but Burr made the contract with me. 
 
 Do I understand you correctly in supposing that Mr. 
 Burr contracted to pay two thousand dollars in one 
 draft, and the balance on his return ? You do. 
 
 Mr. Lee. How many acres of land are in the island ? 
 Mr. Blannerhassett owned about one hundred and eighty 
 acres, which was about half of the island, and cost him 
 about five thousand dollars ; but with the house and all, 
 cost him forty or fifty thousand dollars, as already ob- 
 served. 
 
 Mr. Hay. Was not one of the boats fitted up for Mrs. 
 Blannerhassett and family? One of the large boats 
 was. Mr. Blannerhassett had taken a keel boat, belong- 
 ing to the firm, up to Colonel Barker's to be fitted up for 
 his family: but by Colonel Barker's advice, he concluded 
 to have one of the large boats prepared for that purpose 
 on account of its superior accommodation. This was 
 accordingly done. 
 
 Had not the delivery of the boats been interrupted 
 by the armed men, would they not have been delivered 
 to Blannerhassett ? I suppose they would have been 
 delivered at Marietta, where he would have received 
 them. 
 
 Mr. Martin. Was not the contract made by Mr. Burr 
 with your firm ? It was. 
 
 Do you understand that Mr. Burr has received any con- 
 sideration for this sum of two thousand dollars thus paid ? 
 I do not know. 
 
 Mr. Wirt. If the deliverey of these boats had not 
 been prevented, would they not have been delivered to 
 Blannerhassett or Burr? They would have been deliv- 
 ered to either. The company contracted for them. 
 
 Mr. Hay. If delivered to Mr. Blannerhassett, would 
 you not have considered yourself as delivering them to 
 one of Burr's associates ? I can not say what I should 
 have thought. 
 
 Mr. Burr. How came you to suppose yourself autho- 
 rized to deliver the boats to Blannerhassett, since I gave 
 the draft ? I should in any event have considered myself 
 justified in delivering the boats to him, as he guaranteed 
 the payment for them, and he had property to a larger
 
 TESTIMONY OF DUDLEY WOODBRIDGE. 589 
 
 amount in my hands; and besides these considerations, 
 early in September Blannerhassett had mentioned to me 
 his having joined Mr. Burr. 
 
 Mr, Baker. Did you make any stay upon the beach, 
 on the night of their departure ? I did not, for I returned 
 immediately to the house with Mr. Belknap. < 
 
 Mr. Botts. Were the people peaceable on that night ? 
 Yes. 
 
 Did you hear any noise like that of war, the roaring of 
 cannon or the rattling of small arms? None. 
 
 Mr. Wirt. Did you hear any alarm in the evening 
 about the militia from the Ohio side ? There was some 
 alarm in the evening. 
 
 Mr. Parker. Did Mr. Burr leave the island before Mr. 
 Blannerhassett communicated to you his being joined 
 with him ? I do not precisely recollect the time of the 
 communication ; but I knew that Blannerhassett had con- 
 nected himself with him in the same enterprise, and I 
 would therefore have delivered the boats to him. 
 
 Mr. Co/eman. Was Mr. Blannerhassett's determination 
 to go away the effect of your having told him of the 
 armed men going to take the boats? That information 
 might have operated with other circumstances. 
 
 Mr. Parker. Did you see the president's proclamation 
 on that day ? No ; that was Wednesday, and it came 
 next Friday by the mail. It was handed to me by the 
 postmaster. I did not hear of its being sent otherwise. 
 I might have heard of it before, but I am not absolutely 
 certain. 
 
 Mr. Mac Rae. Did you hear anything of it before ? 
 I do not recollect distinctly. I believe that the printer 
 at Marietta, who had been at Pittsburg, had brought 
 some information about a proclamation ; I have some 
 idea that he might have mentioned that he had seen it. 
 
 Mr. Hay. Did you hear anything of a state warrant ? 
 No. I did hear that the legislature of the state of 
 Ohio were sitting with closed doors, in consequence of 
 something communicated by Mr. Graham, and it was 
 probable that the boats would be stopped, and that they 
 would suppress the enterprise. 
 
 Mr. Wickham. Did you understand that Blannerhas- 
 sett's boats or the people on the island would be taken ?
 
 590 TRIAL OF AARON BURR. 
 
 I did not suppose that they would go to Virginia; but 
 that they would only stop the boats that were built pursu- 
 ant to his contract up the Muskingum. 
 
 Mr. Hay. What was the cause of .his precipitate flight ? 
 Did you hear any particular observations from any of 
 the party on the island? Mr. Blannerhassett told me 
 that he would go off in three or four hours ; and I heard 
 Comfort Tyler say, that he would not resist the consti- 
 tuted authorities, but that he would not be stopped by a 
 mob. 
 
 Mr. Wirt. At the time he said so was the legislature 
 of Ohio understood to be in session with closed doors? 
 It was; and I saw the militia of Wood county assembled 
 the next day or the day after. 
 
 Mr. Burr. Was there not some danger of being 
 stopped by the ice if they had not gone off as soon as 
 they did? I thought so ; and that it was also hazardous 
 for Mrs. Blannerhassett to go. Tyler was detained two 
 days by Blannerhassett. 
 
 Mr. Mac Rae. Did Blannerhassett that night commu- 
 nicate his apprehensions to you? He did not. 
 
 Mr. Burr. Were Tyler's party disorderly? They were 
 not. 
 
 Did they do any mischief? Were they guilty of any 
 misconduct ? None. 
 
 THURSDAY, August 2oth, 1807. 
 
 The court met at the usual hour, when a desultory dis- 
 cussion took place, in which 
 
 Mr. Burr and his counsel insisted that the counsel for 
 the prosecution should produce all the evidence which 
 they had, relative to the overt act, before they attempted 
 to offer any collateral testimony; and again reminded 
 them, that as soon as all their testimony on that point 
 was introduced, they had certain propositions to submit 
 to the court. 
 
 The counsel for the prosecution said that they had 
 some more evidence to introduce on this point, and 
 
 SIMEON POOLE was then sworn. 
 
 Mr. Hay. Be so obliging as to say what you
 
 TESTIMONY OF SIMEON POOLE. 591 
 
 know with respect to the men on Blannerhassett's 
 island. 
 
 Simeon Poole. I never was on the island at that time ; 
 but was opposite to it. I saw boats and men there, if I 
 mistake not, on the loth of December. I arrived oppo- 
 site the island about dusk, at the distance of about one 
 hundred and fifty or two hundred yards from it. I do 
 not know how many boats there were. I saw people 
 walking about in the evening; and in the course of the 
 night they kindled a fire and I saw some persons by the 
 light that appeared to be armed, as if they were sen- 
 tinels. 
 
 Mr. Hay. Why did you think they were so? I don't 
 know that they were ; but they appeared so to my view. 
 I don't know positively what they were, but they appeared 
 to have guns, and looked like sentinels. I did not go 
 over that night, nor did I offer to go. Boats were pass- 
 ing and repassing during the night from the island to 
 the mainland. 
 
 To whom did these boats belong? I do not know, but 
 I presume to the island. There were large boats at the 
 landing, but these were small boats. I did not speak to 
 them. I stood as much undiscovered as possible, as I 
 was authorized by the governor of Ohio to apprehend 
 Blannerhassett ; I went for that purpose. 
 
 Do you recollect any indications of arrangements 
 about a watch-word? Yes. In the course of the 
 evening I saw that some boats crossed ; and when a par- 
 ticular word was given, I observed that there were some 
 that did not cross. I heard others that were hailed across 
 and a word given. They would hail for a boat. The 
 people on the island would ask, " What boat ?" If the 
 answer was, I's boat, the boat immediately put off. 
 
 Mr. Parker. On what occasion was the watch-word 
 used? When the people on the Ohio side wanted to go 
 across, they would hail or call for a boat ; the people on 
 the island would ask, " What boat ?" and if the answer 
 were I's boat, the boat would immediately put off. 
 
 Mr. Burr. Till what hour did you stay out that night ? 
 I imagine it was as late as ten o'clock. 
 
 Was it not cold enough to render a fire pleasant ? -It 
 was.
 
 592 TRIAL OF AARON BURR. 
 
 Is it not usual for boats to build fires on the bank, when 
 it is so cold ? It is. There. seemed to be a considerable 
 number of men on the island that evening, going up and 
 down, to and from the house. The witness further ob- 
 served, that lanterns were passing during the night, be- 
 tween the house and boats, as if there were business be- 
 tween them; that he could not say whether the persons 
 whom he had called sentinels were not merely loitering 
 around the fire ; that he thought it likely, that if he too 
 had used the watch-word, the boats would have put off for 
 him ; that he lived on the Ohio side ; that he could not 
 distinguish well, but he apprehended that some of them 
 had guns ; but most of the people were without guns. 
 
 Do you not commonly hail boats, when you wish 
 to cross the river ? It is not common to give 
 a word. There were several boats hailed by people 
 who did not use that word ; and these people were not 
 sent for ; but there was no instance where the boat was 
 not sent for the party hailing where that watch-word was 
 used. 
 
 MAURICE P. BELKNAP was then sworn. 
 
 Mr. Hay. Will you tell us, sir, what you saw on the 
 island ? 
 
 Mr. Belknap. On the evening of the loth of Decem- 
 ber, I was at the island of Mr. Blannerhass,ett. I arrived 
 there between eight and nine o'clock in the evening. I 
 hailed a boat, and they asked my name. Having given 
 it, a skiff was immediately sent over with two of Blan- 
 nerhassett's servants. Having crossed, I met with Mr. 
 Woodbridge, who returned to the house with me. When 
 I went into the house, I observed in the room, when I 
 first entered, a number of men, who, from the promiscu- 
 ous view I had of them, might have been about twenty. 
 
 Mr. Hay. What were they doing ? The two or three 
 I noticed near the door had rifles, and appeared to be 
 cleaning them. These were all the arms I saw ; for I 
 merely passed through the room where they were. Near 
 the place where I landed, there appeared to be two or 
 three boats, and people about them. It was a dark even- 
 ing, and the lights in the boats was the only circumstance 
 which made me notice them.
 
 TESTIMONY OF EDMUND P. DANA. 593 
 
 Mr. Burr. Did you give a watch-word when they 
 brought you over ? I gave no watch-word, I only gave 
 my name ; but they brought me over. 
 
 i 
 
 EDMUND P. DANA was next sworn. 
 
 Mr. Dana. I never saw Mr. Burr on the island. 
 
 Mr. Hay. Will you state what you know about their 
 number and arms? On the evening of the loth of De- 
 cember, I understood that the boats were to start with 
 Comfort Tyler and his men down the river. Two other 
 young men and myself were determined to cross over 
 from Belpre, where I live, to the island. We went down 
 to the landing opposite the island about dusk, took a 
 skiff and landed at the upper part of the landing. We then 
 went up to the house. Tyler's boats lay below our own^ 
 about seven or eight rods. I heard some person talking 
 on board, but it was dark and I could not distinguish 
 any one. We went into the hall, a large room, where 
 there were a number of men. I remained but a short 
 time and did not count them. I can not say how many 
 there were, but I should judge there were about fifteen 
 or sixteen. One of them was running some bullets ; and 
 there was nothing but hub-bub and confusion about the 
 large fire. I was then introduced into a chamber where 
 there were Colonel Tyler, Blannerhassett, Mr. Smith of 
 New York as they said, and three or four other gentle- 
 men. I was introduced to Mr. Smith and Doctor M'Cas- 
 sley (or M'Castle) who had his lady, if I mistake not, 
 there. I had been introduced to Colonel Tyler the day 
 before. 
 
 Mr. Randolph. Were you a perfect stranger to the 
 people in the hall ? I was. 
 
 Was there any alarm on your going in ?^ They did not 
 appear to be alarmed. 
 
 Mr. Coleman (one of the jury) addressed the court. Is 
 it proper to ask any questions about the conversations 
 which took place with those gentlemen ? 
 
 Cliief Justice. It is left to the consent of the ac- 
 cused. 
 
 Mr. Burr. If any of the jury think proper, I have no 
 objection. [The inquiry was not pressed.] 
 
 Before the examination of Mr. Belknap and Mr. Dana, 
 i.-38
 
 594 TRIAL OF AARON BURR. 
 
 an interesting and animated discussion took place at the 
 bar. 
 
 Mr. Burr and his counsel objected strongly to the in- 
 troduction of collateral evidence, and insisted strenuous- 
 ly that the counsel for the prosecution should adduce, 
 without further delay, all the testimony which they had 
 relating to any overt acts alleged to have been committed ; 
 that they had already submitted to too much irrelevant 
 evidence; that it could not be denied that Mr. Burr was 
 at a great distance, in the state of Kentucky, when these 
 acts were alleged to have been committed on Blanner- 
 hassett's island ; and that the relevancy or irrelevancy of 
 the collateral proof offered, depended entirely on the ex- 
 istence of those acts. They insisted, that notwithstand- 
 ing the numerous efforts and prejudices which had been so 
 artfully and zealously excited, and so industriously spread 
 throughout the country, there had not been any act of 
 war, tumult or insurrection, nor even the semblance of 
 an overt act ; that they had a right to have the opinion 
 of the court on the subject, and would insist on exercis- 
 ing it as soon as the testimony relating to the overt acts 
 of this pretended war was all introduced ; and if gentle- 
 men had any more such, they insisted on its immediate 
 production, or that they would proceed to make their 
 intended application to the court. 
 
 The counsel for the prosecution opposed this mode of 
 proceeding. They contended that it was unusual, irreg- 
 ular and improper; that the whole evidence should be 
 submitted to the jury, whose province it was to decide 
 whether, according to the exposition of the law by 
 the court, there had been war or not ; that the counsel 
 for the accused might, when the whole should have been 
 laid before the court, move the court to instruct the jury 
 on the law, or make such other motions or propositions 
 as they might deem proper ; that to decide whether 
 overt acts had been committed or not, was an inquiry of 
 fact, not of law ; that though the court had a right to 
 expound the law, and explain what in law constituted an 
 overt act, yet it could not stop the prosecution, and say to 
 the jury that no overt act was committed ; that it was evi- 
 dent that the object of attempting thus to arrest the in- 
 quiry, was to prevent the public from seeing and knowing
 
 OBJECTION TO COLLATERAL EVIDENCE.^ 
 
 what had been done and which ought to be known, that the 
 question was not, where the accused was when the trea- 
 son was committed, but whether he procured it or had a 
 part in it? and that as the objection of the accused to 
 the evidence offered by the prosecution was irregular and 
 improper, it ought to be disregarded by the court. 
 
 It was admitted that Mr. Burr was in Kentucky at 
 the time when the acts charged in the indictment were 
 committed. It was stated that several witnesses were 
 present ready to prove it. 
 
 After some further desultory remarks at the bar, 
 
 The Chief Justice said that there was no doubt that 
 the court must hear the objections to the admissibility 
 of the evidence ; that it was a right, and gentlemen 
 might insist on it ; but he suggested the propriety of 
 postponing their motion. 
 
 Mr. Hay admitted their right to object to the intro- 
 duction of evidence ; but contended that the course they 
 now adopted was irregular. He stated that they had 
 some other witnesses to examine on the same point, 
 whom they wished to introduce. 
 
 As soon as Messrs. Belknap and Dana were examined, 
 
 Mr. Botts moved the court to direct the marshal to 
 make payment daily of their allowance to about twenty 
 witnesses, summoned for the accused, most of \vhom 
 were so poor that they could not subsist without it. He 
 had hoped the marshal would have paid them without 
 this application. Mr. Burr thought them material, and 
 summoned them from the best information he could ob- 
 tain ; and when the United States even imprisoned wk- 
 nesses to compel their attendance, those of the accused 
 ought at least to be supplied with the means of subsist- 
 ence. 
 
 The marshal said that as the number of witnesses was 
 so great, many of them were said to know nothing 
 of the subject in controversy, he was cautioned by 
 the attorney for the United States, not to pay them 
 till their materiality was ascertained or till the court or- 
 dered him. 
 
 Mr. Hay said that the expenses were so enormous 
 that they would be felt by the national treasury though 
 it was full. This justified the caution alluded to; and
 
 596 TRIAL OF AARON BURR. 
 
 the laws c6ntemplat.ed to pay the witnesses as soon as 
 they gave their evidence. 
 
 Mr. Burr said that when the attorney cautioned the 
 marshal, it was supposed that he had summoned between 
 two and three hundred witnesses, whereas the truth was 
 that they did not exceed twenty ; that they were mate- 
 rial that some of hem were summoned to repel what 
 might be said by the witnesses for the United States ; 
 that the United States had many advantages in com- 
 manding the attendance of their witnesses, which he had 
 not ; that he would not acquiesce in the establishment 
 of a principle that might prove injurious to others ; that 
 the witnesses ought to be paid, and he hoped that there 
 would be no more difficulty made on the subject. 
 
 After some more desultory observations, as the wit- 
 nesses were stated and considered to be material, the 
 court directed the payment to made by the marshal. 
 
 Mr. Wickham then renewed the subject of objecting 
 to the evidence; and again urged the gentlemen who 
 prosecuted, to adduce, if they could, anymore testimony 
 in support of what fhey deemed the overt acts. 
 
 Mr. Hay objected to their course of proceeding, but 
 added that he had only one or two more witnesses on 
 that point, who were then absent, and if gentlemen were 
 determined to make their motion they might proceed. 
 
 Mr. Wickham then addressed the court. 
 
 May it please the court : The counsel for the prosecu- 
 tion having gone through their evidence relating directly 
 to the overt act charged in the indictment, and being about 
 to introduce collateral testimony of acts done beyond 
 the limits of the jurisdiction of this court, and it not only 
 appearing from the proofs, but being distinctly admitted 
 that the accused, at the period when war is said to have 
 been levied against the United States, was hundreds of 
 miles distant from the scene of action, it becomes the 
 duty of his counsel to object to the introduction of any 
 such testimony ; as, according to our view of the law on 
 this subject, it is wholly irrelevant and inadmissible. 
 
 It is not without reluctance that this measure is resort - 
 
 'ed to. Our client is willing and desirous, that at a 
 
 proper time, and on a fit occas'ion, the real nature of the 
 
 transactions which have been magnified into the crime
 
 ARGUMENT OF MR. WICKHAM. 597 
 
 of treason, should be fully disclosed ; and unless he be 
 greatly mistaken it is now in his power to adduce strong 
 and conclusive testimony in direct opposition to that 
 which has been relied on in behalf of the prosecution. 
 But if we may calculate from the time that has been al- 
 ready consumed in the examination of the small number 
 of witnesses that have yet been introduced, out of about 
 one hundred and forty that have been summoned on 
 the part of the United States, it is hardly possible that 
 an opportunity will be afforded him of calling a single 
 witness before the jury. Weeks, perhaps months, will 
 pass away before the evidence for the United States is 
 closed ; and at this unfavorable season, nothing is more 
 likely than that the health of some one, and perhaps 
 more of the jury, will be so far affected by the climate and 
 confinement, as to render it impossible to proceed with 
 the trial. Should such an event happen, the cause must 
 lie over, and our client, innocent, as we have a right to 
 suppose* him, may be subjected to a prolongation of that 
 confinement which is in itself a severe punishment. The 
 jury too are placed under very unpleasant restraints, and 
 it would be an act of injustice to them, as well as to him, 
 to acquiesce in a course of proceeding which would draw 
 out the trial to an immeasurable length ; and which we 
 conceive to be neither conformable to the rules of law nor 
 consistent with justice. 
 
 Hitherto the counsel for the United States have taken 
 frequent occasions to declare their belief of the guilt of 
 the accused. On the motion I am about to make, argu- 
 ments drawn from this topic will have no application. 
 The question will turn on abstract principles which will 
 neither be changed nor affected by his innocence or guilt. 
 The foundation on which this prosecution must rest, and 
 which I should hope had not been seen or attended to 
 by the counsel for the United States themselves, will be 
 exposed to view ; and it will be for them to determine 
 whether it shall be abandoned or maintained by doc- 
 tines incompatible with our republican institutions, and 
 utterly inconsistent with every idea of civil liberty. 
 
 In combating these doctrines we shall, so far as we are 
 able, support the cause, not of our client alone, but of 
 every citizen of the United States, and of future genera-
 
 598 TRIAL OF AARON BURR. 
 
 tions ; for as to the establishment of the principle, it 
 ought not to be considered as his cause alone, but as the 
 cause of every member of the community and of pos- 
 terity. 
 
 The first position I shall lay down, is, that no person 
 can be convicted of treason in levying war, who was not 
 personally present at the commission of the act, which is 
 charged in the indictment as constituting the offense. 
 
 The 3d section of the 3d article of the constitution of 
 the United States, declaring that " treason shall consist 
 only in levying war against them, or in adhering to their 
 enemies, giving them aid and comfort," and that " no 
 person shall be convicted, unless on the testimony of 
 two witnesses to the same overt act," there can be no 
 doubt, if the words be construed according to their nat- 
 ural import, that it is necessary, in order to fix the guilt 
 of the accused, to prove by two witnesses, that he com- 
 mitted an act of open hostility to the government, at the 
 place charged in the indictment. 
 
 But artificial rules of construction, drawn from the 
 common law and the usages of courts in construing sta- 
 tutes, are resorted to in order to prove that these words 
 of the constitution are to be construed, not according to 
 their natural import, but that an artificial meaning drawn 
 from the statute and -common law of England, is to be 
 affixed to them totally different. 
 
 In the first place, I deny that any such rules of con- 
 struction, however just they may be when applied to 
 a statute, can be properly used with reference to the 
 constitution of the United States. 
 
 This instrument is a new and original compact be- 
 tween the people of the United States, embracing their 
 public concerns in the most extensive sense ; and is to 
 be construed, not by the rules of art belonging to a par- 
 ticular science or profession, but, like a treaty or na- 
 tional compact, in which the words are to be taken ac- 
 cording to their natural import unless such a construc- 
 t i would lead to a plain absurdity, which can not be 
 pretended in the present instance. 
 
 It being new and and original and having no reference 
 to any former act or instrument, forbids a resort to any 
 other rules of construction than such as are furnished by
 
 ARGUMENT OF MR. WICK HAM. 599 
 
 the constitution itself, or the nature of the subject. If I 
 be correct in this, there is an end to all further inquiry. 
 It is not necessary to resort to artificial rules of con- 
 struction. The words of the constitution, " levying (or 
 making) war," are plain and require no nice interpreta- 
 tion : and with respect to the other clause, " adhering to 
 their enemies," &c., it is a matter of no consequence here 
 what may be its correct exposition, for the common- 
 wealth has no enemies. The counsel for the United 
 States will not contend that the words, used in their na- 
 tural sense, can embrace the case of a person who never 
 himself committed an act of hostility against the United 
 States, and was not even present when one was com- 
 mitted. 
 
 But they will insist that these words in the constitu- 
 tion are to have an artificial meaning, such as they con- 
 tend has been given them in the courts in England ; and 
 that in that country, all persons aiding and abetting 
 others in the act of levying war against the government, 
 are guilty of treason, though not personally present. 
 
 I shall contend first, that notwithstanding some dicta 
 of law-writers to the contrary, no such rule has practi- 
 cally obtained in that country ; and that the decisions, 
 entitled to any respect, lead to an inference directly con- 
 trary. 
 
 And secondly, that if I be wrong in this, the princi- 
 ple adopted there can not apply to treasons under the 
 constitution of the United States. 
 
 I shall admit that Lord Coke and, after him, other 
 writers who are deservedly revered, have laid down as a 
 general position, that there are no accessories in treason 
 either before or after the fact, but that all are princi- 
 pals. 
 
 But no adjudictions, in the case of an accomplice in 
 the nature of an accessory before the fact, bear them out 
 in it, except that of Sir Nicholas Throgmorton, reported 
 I State Trials, pp. 63 to 78 ; and the conduct of the court 
 on that occasion was so obviously contrary, not only to the 
 rules of law and justice, but even to those of decency, that 
 I persuade myself the counsel on the other side will not 
 rely on it as an authority. 
 
 A very faithful and correct account of it is given by
 
 6oo TRIAL OF AARON BURR. 
 
 Judge Tucker in his appendix to 4th Blackstone's Com- 
 mentaries, note b, p. 44. He contests the doctrine ad- 
 vanced at this day, " that whatever will make a man an 
 accessory in felony, will make him a principal in treason." 
 He shows that it is derived from three original cases 
 only; and then proceeds thus, " This doctrine appears to 
 have slept from the year 1488, to the year 1554, 
 when it was revived upon the trial of Sir Nicholas 
 Throgmorton, in the first year of the reign of Queen Mary. 
 He was indicted, I. For conspiring and imagining the 
 death of the queen ; 2. For levying war against her 
 within the realm ; 3. For adhering to her enemies 
 within the realm, giving them aid and comfort ; 
 4. For conspiring and intending to depose the 
 queen; 5. For traitorously devising and concluding to 
 take the of Tower London. Upon his trial, Stanford, 
 author of the Pleas of the Crown, and Dyer, afterwards 
 chief justice, assisted in the prosecution, as queen's ser- 
 geants. Bromley, chief justice of England, who appears 
 to have been another Jefferies, and Sir Nicholas Hare, 
 master of the rolls, a fit associate for him, and Sir Roger 
 Cholmley, one of the same stamp, were among the num- 
 ber of his judges, and managed the trial. At this trial, 
 the doctrine of constructive treason in its fullest extent 
 was insisted on by the counsel for the prosecution, and 
 sanctioned by the judges, notwithstanding the prisoner 
 reminded the court of a statute, passed not six months 
 before, whereby it was declared, that no offense made 
 treason by act of parliament should thereafter be held to 
 be treason, except such as were so declared by the sta- 
 tute 25 Edw. 3, which statute he desired might be read 
 to the jury. The court told him there should be no 
 books brought at his request ; they knew the law suffi- 
 ciently without book ; it was not their business to pro- 
 vide books for him, neither did they sit there to be 
 taught by him. If anything more be requisite to show 
 the respect due to the decisions of the court, it may not 
 b amiss to mention, that they ordered a person, whom 
 the prisoner called as a witness, on his behalf, out of 
 court. That one Vaughan, who was under sentence of 
 death, and whose execution was respited that he might 
 be present at this trial, was admitted as an evidence
 
 ARGUMENT OF MR. WICKHAM. 60 1 
 
 against him. That the confessions of one Winter and 
 one Crofts, then alive and in custody, were read in evi- 
 dence against him, the witnesses themselves not being 
 produced in court. These words of the statute 25 Edw. 
 3, ' and be thereof attainted of open deed by people of 
 their condition,' which Sir E'dvvard Coke and every other 
 writer on criminal law from his time to this, expounds 
 to mean, by verdict of a jury of their peers, were thus 
 expounded by the chief justice addressing himself to the 
 prisoner: 'You deceive yourself, and mistake these 
 words by people of their condition ; for thereby the law 
 doth understand the discovering of your treasons. As 
 for example, Wyatt and other rebels, attainted for their 
 great treasons, already declare you to be his and their ad- 
 herent, inasmuch as divers and sundry times you had 
 conference with him and them about the treason ; so 
 as Wyatt is now one of your condition, who, as the 
 world knoweth, hath committed an open, traitorous fact.' 
 The word 'enemies' was likewise expounded to mean 
 traitors within the statute. And lastly, when the jiyy 
 brought in a verdict of acquittal (for there was no evi- 
 dence against the prisoner on either point), the court im- 
 mediately committed them all to prison, and some of 
 them were fined two thousand pounds, some one thou- 
 sand pounds, and the lowest paid threescore pounds 
 apiece, before they were discharged from their imprison- 
 ment. Stamford, who was active in the prosecution, 
 was afterwards promoted to the bench, and published 
 his pleas of the Crown, in 1560, six years after, in which 
 he has laid down the doctrine at large, as it is received 
 at this day, but cites the case 3 Hen. 7, 10, before men- 
 tioned in support of it. Abington's case was resolved, 
 when Sir Edward Coke was attorney-general, in the 
 fourth year of James the first, when the spirit of perse- 
 cution was at its height, from the terrors of the powder- 
 plot, in the guilt of which the prisoner was involved, by 
 receiving one Garnett, a Jesuit, knowing him to be guilty 
 of the powder treason. It is not improbable, however, 
 that this doctrine was aided in its. progress, by the sta- 
 tutes which passed in the reign of Hen. 5, and Hen. 6, 
 and the numerous acts of attainder, passed in those v of 
 Edw. 4, and Rich. 3, arid the multiplied treasons created
 
 002 TRIAL OF AARON BURR. 
 
 in the reign of Hen. 8, and his successors, whereby the 
 aiders, counsellors, consentors, abettors, maintainers, pro- 
 curers, comforters, receivers, relievers, and so forth, of 
 persons guilty of any such treasons, are repeatedly de- 
 clared to be principal traitors also. These parliamentary 
 declarations and statutes must, I conceive, have had a 
 strong influence over the judges, in those days, when 
 parliaments and courts were equally devoted to the will 
 of the ruling monarch. 
 
 " I should not have taken the trouble of this scrutiny, 
 had not the same judge [Judge Chase], who declared 
 that the English authorities were not to be regarded as 
 precedents in our courts on the same occasion, declared 
 the law to be, ' that in treason all the participes criminis 
 are principals ; that there are to be no accessories in 
 that crime, and that every act which, in case of felony, 
 would render a man an accessory, will in the case of 
 treason make him a principal.' If the learned judge 
 rejects the authority of the English precedents, where 
 can the law be found? And if he relies upon those pre- 
 cedents, where can the reason of the law be found ? " 
 
 In that case it was perfectly clear, that the prisoner 
 was not present at the only scene of action. I can find 
 no case, where a person who was not present at the 
 scene of action, or where a procurer or aider of treason 
 before the fact was convicted or even brought to trial, 
 except the case of Mary Speke. In Tremaine's Pleas of 
 the Crown, p. 3, I find an indictment against her for 
 treason, in aiding the Duke of Monmouth and others in 
 levying war, with provisions ; neither before nor after, but 
 at the time when the treason was committed by the prin- 
 cipals. She was not an accessory in fact, but an " aider " 
 in the commission of the treason; it comes within the defi- 
 nition of an " aider or procurer, " and belongs to the class 
 of accessories before the fact. But I can not learn how 
 the case was decided ; whether according to common 
 sense or justice, or in what manner determined, neither 
 history, nor any report of the decision of the court (as 
 far as I have been able to discover) informs us. It was 
 in the fourth year of the reign of James 2d, when the 
 spirit of persecution was very high, and was probably 
 one of the cases decided by the' execrable Jerteries, on
 
 ARGUMENT OF MR. WICK HAM. 603 
 
 the occasion of Monmouth's rebellion. Whether he car- 
 ried this doctrine to the utmost length or not, I can not 
 say; but I presume the counsel for the United States 
 would not rely on it as a precedent even if it applied. 
 
 After a diligent and painful research, I have been un- 
 able to find any other decisions that go to this point, 
 with respect to accomplices in the nature of accessories 
 before the fact, to treason in " levying war." I can not 
 find, and I am confident the gentlemen can not show any 
 solemn decision subjecting the procurer, before the fact, 
 to the pains and penalties of treason. The other great 
 branch of treasons, that strikes directly at the existencp 
 of the government, that of compassing the death of the 
 king, does not admit of an accessory before the fact, as dis- 
 tinguished from a principal. We all know that that crime 
 consists in the intention. The agreement to do the act 
 constitutes the crime itself. It is impossible that there 
 can be an aider or procurer* in this case, because every 
 person concerned is party to the agreement, and there- 
 fore, from the nature of things, is a principal. It will 
 not be contended by the counsel on the other side, that 
 an agreement to levy war amounts to levying war. They 
 themselves admit that they who conspire to levy war only 
 become traitors by relation when the war is actually le- 
 vied. With respect to treason for compassing the death 
 of the king, where the mere agreement to do the act 
 does itself constitute the crime,! thank God that in this 
 country we have no subject to which it applies; and our 
 constitution forbids that the intention alone, which is so 
 liable to be misunderstood and misrepresented, should 
 in any case be construed into treason. 
 
 In the lesser treasons, such as conterfeiting the coin, I 
 have not met with any instance of as conviction of an ac- 
 complice before the fact. 
 
 It is admitted that there are to be found in Eng- 
 land a number of convictions of receivers of traitors and 
 other aiders in the nature of accessories after the fact ; 
 and I admit the correctness of the inference, that if these 
 decisions \fere proper to be considered as precedents, the 
 principle would apply to aiders and abettors before the 
 fact. But it becomes proper before they ought to be 
 regarded as precedents worthy of imitation, to inquire
 
 604 TRIAL OF AARON BURR. 
 
 in what times and under what circumstances, those cases 
 were decided, I have not found any of them since the 
 revolution of 1688, when the principles of civil liberty 
 and enlightened jurisprudence began to be better under- 
 stood than before ; and most of those previous to that 
 event, were decided by Jefferies: such as the case of 
 Lady Lisle, reported in 4 State Trials, p. 106. John 
 Fernley's case, ibid. p. 131, and Elizabeth Gaunt's case, 
 p. 142. They were all cases of receivers of traitors or 
 accessories after the fact. With respect to the former, 
 which served as a prototype of the others, I trust there 
 is only one opinion among us. I will only refer .the 
 court to Mr. Hume's account of this atrocious legal mur- 
 der, and of the case of E. Gaunt, in his 8th vol. of the 
 History of England, p. 233 (octavo edition); which is as 
 follows : 
 
 " Of all the executions during this dismal period, the 
 most remarkable were those of Mrs. Gaunt and Lady 
 Lisle, who had been accused of harboring traitors. Mrs. 
 Gaunt was an anabaptist, noted for her beneficence, which 
 she extended to persons of all professions and persuasions. 
 One of the rebels, knowing her humane disposition, had 
 recourse to her in distress, and was concealed by heY. 
 Hearing of the proclamation, which offered an indemnity 
 and rewards to such as discovered criminals, he betrayed 
 his benefactress, and bore evidence against her. He re- 
 ceived a pardon as a recompense for his treachery ; she 
 was burnt alive for her charity. 
 
 " Lady Lisle was widow of one of the regicides, who 
 had enjoyed great favor and authority under Cromwell, 
 and who having fled, after the restoration, to Switserland, 
 was there assassinated by three Irish ruffians, who hoped 
 to make their fortune by this piece of service. His 
 widow was now persecuted for harboring two rebels, 
 the day after the battle of Sedgemoor ; and Jefferies 
 pushed on the trial with an unrelenting violence. In 
 vain did the aged prisoner plead, that these criminals had 
 been put into no proclamation ; had been convicted by 
 no verdict ; nor could any man be denominated a trai- 
 tor, till the sentence of some legal court was passed upon 
 him that it appeared not by any proof, that she was so 
 much as acquainted with the guilt of the persons, or had
 
 ARGUMENT OF MR. WICKHAM. 605 
 
 heard of their joining the rebellion of Monmouth : that 
 though she might be obnoxious on account of her family, 
 it was well known that her heart was ever loyal, and that 
 no person in England had shed more tears for that tragi- 
 cal event, it which her husband had unfortunately borne 
 too great a share : and that the same principles which 
 she herself had ever embraced, she had carefully instilled 
 into her son, and had at that very time sent him to fight 
 against those rebels whom she was now accused of har- 
 boring. Though these arguments did not move Jeffer- 
 ies, they had influence on the jury. Twice they seemed 
 inclined to bring in a favorable verdict. They were 
 as often sent back with manaces and reproaches, and at 
 last were constrained to give sentence against the pri- 
 soner. Notwithstanding all applications for pardon, the 
 cruel sentence was executed. The king said that he had 
 given Jefferies a promise not to pardon her. An excuse 
 which could serve only to aggravate the blame against 
 himself." 
 
 These cases and decisions (Throgmorton's and Lady 
 Lisle's), I admit, are precedents, if they choose to rely 
 on them, and they can find no other. 
 
 Since the revolution of 1688, though the doctrine has 
 been admitted by writers to be true, yet all the decisions 
 of the court, that I can find, which bear upon the subject, 
 lead to a directly opposite conclusion. The most numer- 
 ous class of cases relate to convictions which took place 
 before judges of a very different stamp, w"hose decisions 
 are entitled to the highest respect. The occasion on 
 which there was the greatest number of prosecutions for 
 treason, in levying war, was the rebellion in the year 1745 : 
 and no one can doubt the accuracy of the reports of the 
 decisions at that period, or the ability of the judges who 
 presided, and the counsel who conducted the prosecu- 
 tions. We all know the history of those times, and what 
 cruelties the late Duke of Cumberland committed after 
 the victory of Culloden. His name is held in general 
 detestation by the people of that part of the country, 
 from parent to child. Yet there was not a single instance 
 of a conviction for assisting or harboring the traitors. 
 History mentions the wonderful escape of the pretender, 
 and his concealment and protection, by the unexampled
 
 606 TRIAL OF AARON BURR. 
 
 courage and fidelity of Miss Macdonald. Yet no attempt 
 was made to convict her of treason, or others who aided 
 him, or even to prosecute them. Though he was a long 
 time concealed, and in eluding the vigilance of his pur- 
 suers was favored by many, yet it is remarkable that no 
 person who assisted him in his distress, was attempted 
 to be punished. But let us not draw any inference from 
 the silence and inactivity of the officers of the crown, 
 but advert to what was actually done. 
 
 The fact of the pretender's raising an army in Scot- 
 land, with a view of seating himself on the throne of 
 Great Britain ; his giving battle to the king's troops, 
 defeating them several times, and marching into the 
 heart of England, could have been proved by thousands 
 of witnesses. If the .doctrine, that persons absent and 
 not in arms might be charged with the overt acts of 
 others with whom they were connected, were admitted, 
 nothing would have been more simple and easy, than 
 the mode of conducting the prosecutions on this occa- 
 sion. The prosecutors would have had nothing to do, 
 but to charge an overt act in some county through which 
 the pretender's army had passed, no matter which, to 
 prove the fact of his having done so (a fact as notorious 
 as that the places themselves were in existence), and then 
 to prove that ihe person charged was connected with 
 the rebellion, and assented to it ; whether he had ever 
 been in the county where the act was charged upon him, 
 or had even raised a finger in opposition to the govern- 
 ment or not, was a matter of no importance. His con- 
 viction followed as a necessary consequence. 
 
 But did the courts and prosecutors proceed in this 
 manner? A reference to their decisions will prove, that 
 the courts proceeded on the contrary doctrine ; and that 
 the judges, as well as the counsel for the prosecutions, 
 thought that they could only be sustained by bringing 
 the overt act home to the person himself, by establishing 
 the fact that the accused was present, and personally 
 committed the overt acts charged in the indictment. 
 
 Justice Foster, in his Crown Law, pp. 3 to 6, gives the 
 form of the indicment and says that " it was used 
 against all the rebels who were tried in Surrey (except 
 one, for reasons explained); that the overt acts were laid
 
 ARGUMENT OF MR. WICK HAM. 607 
 
 in different counties of England or Scotland, as the cases 
 respectively required ; that the fact of taking and possess- 
 ing the city and castle of Carlile, was not charged on 
 those who were not concerned in that part of the rebel- 
 lion." 
 
 According to the doctrine of the gentlemen on the 
 other side, what necessity was there of varying the overt 
 acts from one county to another? Why charge them in 
 different counties, if any one might be charged with the 
 acts of others wherever committed ? _ For what purpose 
 was the act of taking Carlisle not charged on those who 
 were not concerned in that part of the rebellion? If 
 this doctrine be correct, it was no matter whether they 
 were present or absent ; if they were concerned, they 
 were all in the eye of the law, present on the spot. Was 
 not Judge Foster talking nonsense, when he stated dif- 
 ferent modes of charging the overt acts, if their doctrine 
 be correct? One mode would have done for all, whether 
 they were present or absent. But this is not a loose ex- 
 pression put down incautiously by Judge Foster, but an 
 opinion on which the court acted. 
 
 In Deacon's case, Foster's Crown Law, pp. 9, 10, it was 
 insisted for the prisoner, that as the overt acts were laid 
 in Cumberland, evidence of an overt act in Manchester 
 should not be given ; but the court determined " that 
 it was indeed necessary that some overt act laid be 
 proved on the prisoner in Cumberland ; but that being 
 done, acts of treason, tending to prove the overt acts laid, 
 though done elsewhere, might be given in evidence." 
 It is evident from the expressions, " proved on the pris- 
 oner," and "that being done," as well as the whole con- 
 text, that the court required proof of an act in Cumber- 
 land, and that the prisoner himself had in person com- 
 mitted the overt act charged, and that no evidence short 
 of this was sufficient. 
 
 If gentlemen doubt the propriety of this construction, 
 there is authority in the same book, page 22, which con- 
 firms it. In Sir John Wedderbourne's case, the overt 
 acts were laid at Aberdeen ; it was proved by two wit- 
 nesses that he was with the rebels at Aberdeen ; and 
 then proof was offered of an overt act elsewhere, which 
 was objected to by his counsel; but " this objection was
 
 6o8 TRIAL OF AARON BURR. 
 
 overruled upon the reasons before given in the case of 
 Deacon." 
 
 What necessity was there to prove that he was with 
 the rebels at Aberdeen ? If their doctrine be law, proof 
 that the rebels had been there was sufficient ; and that 
 fact being as well known as that there had been a rebel- 
 lion, no evidence of any overt act of any sort, at any- 
 place, done by the accused, was wanting; proof of any 
 act, however secret, and however remote from the scene 
 of action, was all that was requisite. 
 
 In the trial of Lord Balmerino, reported in gth State 
 Trials, p. 605, one of the overt acts charged was his march- 
 ing into and taking possession of the city of Carlisle, and 
 holding it for the pretender. He denied that in point ot 
 fact he was present at the taking of the city. This ob- 
 jection was met by the counsel for the crown, among 
 whom was the late Lord Mansfield, by a reference to the 
 testimony, proving that he marched in with the rebels 
 'after the surrender, and to the other charges in the indict- 
 ment which had been clearly proved ; so that it was un- 
 important whether this was established or not. Neither 
 Lord Mansfield, Sir John Strange, nor any of the other 
 great lawyers who were counsel for the crown, thought 
 of the objection now urged by the gentleman on the 
 other side. They exerted themselves merely to show 
 that the day was immaterial; and that the subsequent 
 entry of the prisoner into the city, and remaining in it 
 with the rebels, was sufficient for his conviction, exclusive 
 of the other acts proved. Had they understood the law to 
 be as the counsel for this prosecution understand it, they 
 would have at once replied, " Whether the prisoner 
 were personally present at Carlisle or not is of no 
 consequence ; others with whom he was connected 
 were there, and did the act charged on him, and as all are 
 principals in treason, their acts are his." But they urged 
 no such doctrine ; it was reserved for the ingenuity of 
 future ages to discover it. It is evident that they thought 
 it necessary to prove that he was present and an actor in 
 the scene where the overt act was laid ; or that this 
 charge in the indictment must be abandoned. This has 
 uniformly been the rule, nor can any instance be shown 
 where a party who was not present himself where the
 
 ARGUMENT OF MR. WICKHAM. 609 
 
 act was done, but a mere procurer, has been subjected to 
 the punishment of treason. 
 
 In opposition to these decisions (given at a time when 
 there was certainly no partiality in favor of the accused, 
 but as much learning and virtue on the bench, and as 
 great a portion of talents at the bar as in any period of 
 English history, and which are not opposed by a single 
 case since the revolution, when the independence of the 
 judiciary, and the principles of a free government were 
 first established and confirmed) the counsel for the prose- 
 cution may quote Lord Coke, Stanford, and other emi- 
 nent law writers, since the age of Henry VIII. If this 
 be so it proves nothing, except that the theory was 
 one way, and the practice the other ; and as this is a 
 practical question, we ought to abide by the precedents 
 established by the courts on this law as they occurred, 
 and not the dicta of men, however eminent, who appear 
 to have written without due consideration, and to have 
 done little more than to copy verbatim the speculative 
 opinions of their predecessors. 
 
 For the history of this opinion, I beg leave to refer to 
 Judge Tucker's very able treatise on the subject. He 
 has traced it to its source, and shown how error is begot- 
 ten by error. See Tucker's Blackstone, 4th vol. appen- 
 dix, note b., pp. 40 to 47. After having shown the impor- 
 tant effect of the word " only," in the constitution, " as 
 the strongest term of limitation and restriction in our 
 language, that its obvious meaning is, that " treason 
 shall consist in these two cases " (levying war and adher- 
 ing to their enemies, &c.), and no other cases whatever, 
 he proceeds : 
 
 " And here it may not be improper to repeat the re- 
 mark, that this definition creates as well as limits an 
 offense which had no previous existence ; whereas the 
 statute 25 Edward 3 did not create, but only defined an 
 offense already k*how to the common law. ' That statute,' 
 said Stanford (afterwards chief justice of the common 
 pleas), ' is but a declaration of certain treasons, which 
 were treasons before at the common law.' Will any man 
 presume to advance that there is any treason against the 
 United States by the common law ? that a limited federal 
 republic of yesterday hath already appropriated to itself 
 i. 39
 
 6 io TRIAL OF AARON BURR. 
 
 all the foul corruptions of despotism, collected from time 
 immemorial. To infer that the courts of the United 
 States are left to range at large in the boundless field of 
 construction in search of other cases of treason against 
 the United States, seems to my apprehension to be a 
 doctrine equally unfounded, awful, and dangerous. 
 
 " If, then, we are not at liberty to reject this important 
 word ' only,' we must assign to it some determinate sig- 
 nification, and if that signification be that which I have 
 ascribed to it, to wit, ' these cases and no other what- 
 soever,' its necessary operation and effect must be to cut 
 up all constructive treasons, root and branch. If a sin- 
 gle scion be left, it will be the parent of ten thousand 
 others, shedding like the ' Buonas Upas' their baneful in- 
 fluence far and wide, poisoning and desolating the whole 
 region where they are permitted to take root. Faction 
 and factious men are not confined to any one party in a re- 
 public, and when such men have thecommand of the purse, 
 the sword and the scales of justice, the lives of their oppo- 
 nents will not weigh a feather in competition with their 
 own advancement, or that of their party. This, the framers 
 of the constitution must have considered, and therefore 
 endeavored by the strongest terms, and the strictest limi- 
 tation, to restrain within the narrowest limits. And this 
 should serve as the polar star of construction to judges 
 and all others who may be called upon to administer 
 the government. 
 
 " Thus having sought, and, I trust discovered not only 
 the literal sense and meaning of the word ' only,' but also 
 its proper interpretation, according to the true spirit of 
 our federal constitution, I shall now inquire into its effect 
 and operation in certain cases, which might have been 
 supposed to be treason Itad it been omitted. 
 
 "In England it is now generally admitted, that ' in 
 treason, all the participes criminis are principals,' there 
 being, as it is said, no accessories to that crime ; and that 
 every act which, in case of felony, would render a man 
 an accessory, will in case of treason make him a principal.* 
 
 * The ancient law of England was, that they who were present and abbeting 
 others to do the act, were accessories and not principals. Per Bromley, C. 
 J., Plowden, 97, 98. .See Plowden's note thereon, ib. 99, 100, whereby it 
 seems the law was changed tempore Henry 4, I Hale, 437.
 
 ARGUMENT OF MR. WICK HAM. 611 
 
 " This doctrine was laid down by Judge Chase in his 
 charge to the jury, on the trial of Fries,* but as I con- 
 ceive it to have been extrajudicial, for reasons already 
 mentioned, I shall take the liberty now to inquire 
 whether it be not also questionable. But before I do 
 this I shall endeavor to trace this copious branch of con- 
 structive treason to its fountain head, and show how 
 small a portion of that fatal torrent flows from an uncor- 
 rupted spring. In doing this, I shall begin with the 
 latest authorities and conclude with the most ancient. 
 This doctrine is advanced by Judge Blackstone (4th Com. 
 35, 36), for which he cites 3 Institutes, 138. I Hale's P. 
 C. 613, and Foster, 342. The latter cites 3d Institutes, 
 9,f and 138, and I Hale, 235, 237, 328, 376. Hale him- 
 self cites 3 Inst. 16, and 138. Stanford's P. C. 32, and 
 the year book, I Hen. 6, 5, of which last case I shall make 
 particular mention by and by. 
 
 "Sir Edward Coke, 3 Inst. 16, and 138, cites Stanford, 
 P. C. 3, and the Year Books, 19 H. 6, 47, and 3 H. 7, 10. 
 
 " Stanford, P. C., 3 and 32, 40 and 44, cites the same 
 identical cases from the Year Books, that Sir Matthew 
 Hale and Sir Edward Coke had cited before. From these 
 three original cases, I Hen. 6, 5 ; 19 Hen. 6, 47, and 3 
 Hen. 7, 10, we must consequently derive the doctrine in 
 question. 
 
 " The case of I Hen. 6, 5 (A. D. 1422) is thus mentioned 
 by Stanford, p. 32. A man was outlawed of felony, was 
 imprisoned in the king's bench and indicted and attainted 
 of breaking prison, and releasing certain persons confined 
 for treason, and this was adjudged petit treason. 
 
 " Upon what principle this case could be judged petit 
 treason, it might puzzle any man at this day to conjec- 
 ture, and creates a presumption that the case is not very 
 accurately reported. But there is another principle of 
 the common law on this particular subject of breach ot 
 prison, which will probably lead us to understand it. It 
 is this: If there be felons in prison, and a man knowing 
 of it, breaks the prison and lets out the prisoners, though 
 he knew not that there were felons there, it is felony ; 
 and if traitors were there, it is treason. Now if the per- 
 
 * Fries's Trial, 198. 
 f This is a mistaken reference in Foster ; it should be 16.
 
 6'i2 TRIAL OF AARON BURR. 
 
 sons released in the case here referred to, were imprisoned 
 for petit treason, instead of high treason, this judgment 
 would be regular; but by no rule of law could they be 
 deemed guilty of petit treason in any other case. And, 
 if this were the case, it would prove that there was no 
 distinction in principle between treason and felony ; in- 
 asmuch as the releasing a felon from jail is felony, in the 
 same manner as releasing a traitor from jail is treason. 
 And it appears from Stanford, that a stranger rescuing 
 one indicted for felony, was indicted and tried, and found 
 guilty for that offense before the principal felon was tried. 
 But Sir Michael Foster gives us a further clue to the un- 
 derstanding of this case ; for in speaking on this subject, 
 he observes with great reason that the forcing of prison 
 doors may be considered as overt acts of ' levying war ;' 
 the species of treason for which Benstead, of whom he 
 was speaking, was indicted. And this might have been 
 the case in this instance. These cases confirm the conclu- 
 sion, that the law made no distinction at that time be- 
 tween treason and felony. A statute was made in the 
 year after this case was adjudged, 2 Hen. 6, c. ult. cited 
 by Stanford, whereby it was declared to be treason in 
 any person imprisoned to break prison. All which cir- 
 cumstances united, create a strong presumption that this 
 case is not correctly reported, nor the grounds of the 
 judgment perfectly understood. 
 
 " The second case occurred thirteen years after, in the 
 year 1441, and is thus mentioned in Brooke. A man was 
 indicted for forging false money, and another at the same 
 time ; one confesses and approves, and has a coroner as- 
 signed him; the other pleads not guilty, and it was found 
 that he was consenting and aiding in forging the false 
 money, and so guilty. Stanford mentions the case in 
 the like manner, and it is evident from this state of it, 
 that the defendant was present, aiding and assisting, and 
 so would have been a principal in felony as well as in 
 treason, which is confirmed by Stanford, who proceeds 
 thus : ' It is the same case in rape, where one does the 
 act, and another assists him to commit the rape; he is 
 by this a ravisher.' The law is the same in felony as well 
 as in treason, that all present, aiding and assisting at the 
 fact, are principles. Neither of these cases, therefore, jus-
 
 ARGUMENT OF MR. WICKHAM. 613 
 
 tify the doctrine advanced at this day, that whatever act 
 will make a man an accessory in felony, will make him a 
 principal in treason. 
 
 " The next case is 3 Hen. 7, 10, and is relied on by Stan- 
 ford and Sir Edward Coke, as establishing the doctrine 
 above mentioned ; it was thus: one Cokker was indicted 
 and attainted of making false money, and afterwards one J. 
 B. was indicted for traitorously and knowingly entertain- 
 ing and comforting him ; and was found guilty, and the 
 question was, whether he would be deemed an accessory 
 to Cokker? Brian, justice, said he might be accessory, for 
 such counterfeiting was felony before the statute, and is not 
 cut off by it; and in every treason, felony is implied, &c. 
 ' et tamen Hussey Cap : Inst : dixit quod in hoc quod fac- 
 tum est proditio, non potest esse accessarius felonice et 
 proditorie non potest esse accessarius,' for which doctrine 
 he refers to the preceding case of 19 Hen. 6, 47. Here, 
 then, we have this opinion of two judges in opposition 
 to each other; and we find the latter supporting his 
 opinon by a reference to the very case, which, we have 
 already shown, does not authorize it. 
 
 "These are all the ancient authorities referred to either 
 by Stanford, Sir Edward Coke, Sir Matthew Hale, or any 
 writer on the subject ; and it requires very little discern- 
 ment, I apprehend, to discover that the two former do 
 not warrant the latter, and that the latter is the Dictum of 
 a single judge. And Brooke cites it in that manner: 
 ' Nota, P. Hussey C. I. que accessory ne poet este a 
 treason ; le recetment de traitor, ne poet este tantum 
 felony, mes est treason.' Had this been the established 
 doctrine of the common law, we might have expected 
 that the laborious and indefatigable Sir Edward^Coke 
 (under whose auspices it was brought to maturity, as 
 we shall see hereafter) would have referred us to the Mir- 
 ror, Bracton, Britton, Fleta, or Glanville, in some of 
 which it would most certainly have been found." 
 
 In page 47 he adds, " Both common law and common 
 sense have been able to perceive, and draw a distinction 
 between the actual perpetration of a crime, and the bare 
 advising, or even procuring the perpetration of it, without 
 being present when it is perpetrated ; they have also been 
 t.ble to distinguish between the perpetration of a crime,
 
 6 14 TRIAL OF AARON BURR. 
 
 and the receiving and comforting one who has been him- 
 self the perpetrator, knowing him to be such ; it was 
 reserved for the astute reason of judges appointed by the 
 crown, to discover that there was no distinction between 
 these cases, when the sacred majesty of their master's 
 head was in danger, or supposed to be so; it was reserved 
 for them to declare, that to give a meal's victuals to one 
 guilty of treason, was a crime of the same malignity as 
 levying war against the throne, or as aiming a dagger at 
 the heart of the monarch." 
 
 An additional reason may be drawn from the law of trea- 
 son in compassing the king's death. There, as the crime 
 consists in the attention, all are principals, and the aider or 
 procurer in the first instance is guilty ; and this rule has 
 been transplanted or extended by theorists to the other 
 great branch of treason, " leving war " against the govern- 
 ment. Lord Coke was very fond of quaint expressions ; of 
 these one was, that " in the highest and lowest offenses all 
 are principals." That in them there are no accessories. 
 As a general principle, can this be correct? Apply it to 
 the lowest offenses ; apply it to the case of an assault and 
 battery. Suppose a man, having an enmity against 
 another, is determined to gratify his vengeance against 
 him ; he does not act himself, but employs a bravo to 
 assassinate or severely beat him. A. thus advises and 
 procures .B. to beat C., but is not present at the beating : 
 will it be contended that an action or an indictment will 
 lie against A., who was absent, for this assult and battery? 
 The authority of Hawkins in his Pleas of the Crown, book 
 2d, ch. 29, 4, is decisive on this point : " It seems agreed 
 that whosoever agrees to a trespass on lands or goods, 
 done to his use, thereby becomes a principal in it. But 
 that no one can become a principal in a trespass on the 
 person of a man by any such agreement." Also it seems 
 agreed " that no one shall be adjudged a principal in any 
 common trespass, or inferior crime of the like nature, for 
 barely receiving, comforting, and concealing the offender, 
 though he knew him to have been guilty, and that there 
 is a warrant out against him, which by reason of such 
 concealment can not be executed." 
 
 Could it be supposed that gentlemen would have de- 
 nied this to be law ? It never can be admitted that the
 
 ARGUMENT OF MR. WICK HAM. 6rs 
 
 procurer or adviser of a trespass is punishable as a prin- 
 cipal. No man can be a trespasser against the person of 
 another, who is not present and acting or assenting to it. 
 
 Mr. Hay here insisted that if a man procure another 
 to beat a third, the procurer is a trespasser, and will be 
 liable to an action or indictment. 
 
 Mr. Wickham. I insist that the law is otherwise ; and 
 I refer to the authority I have already produced. They can 
 adduce none to oppose it ; and were it necessary it could 
 be confirmed and fortified by others. To be liable for 
 the trespass on the person, he must be present. If a man 
 in Frederick county advise another to beat a man in 
 Henrico, and he does beat him accordingly in Henrico, 
 where the adviser never was, an action or a public 
 prosecution will certainly never lie against the adviser. 
 
 But admitting that both the theory and practice in the 
 English courts concur in establishing the doctrine which 
 the gentlemen contend for, and that any man, connected 
 in any manner with the traitors, is himself a traitor, yet I 
 contend that it can not be law in this country, where the 
 constitution of the United States has pointed out and 
 established a different rule. The statute in England, on 
 which all the indictments are founded, is well known to 
 be that of 25 Edw. 3. It does not create any new treasons 
 of which the punishments are pointed out, or enlarge the 
 doctrine of treasons ; but on the contrary was intended 
 to narrow the legal definition of this crime, which was 
 punishable at common law. 
 
 In construing the statute, therefore, the judges con- 
 sidered it as made in affirmance of the common law, 
 except where the restraining clauses were permitted to 
 operate ; it was construed according to the course of the 
 common law, and the doctrine that all are principals in 
 treason, if it rests on any foundation, can have no other 
 than the common law ; I Hale P. C. 76-87, proves that 
 this statute, 25 Edw. 3, was made to confine and limit the 
 crime of treason, " which was before that statute arbi- 
 trary and uncertain." In page 85 he calls it " the great 
 boundary of treason " ; and shows that its object was to 
 prevent constructive treasons. This salutary statute is 
 also spoken of by Hume, as a very popular act passed to 
 narrow, define, and limit treasons known at common law.
 
 616 TRIAL OF AARON BURR. 
 
 Under the federal constitution, I persume, it will 
 hardly be contended by the counsel for the prosecution, 
 that we have any common law, belonging to the United 
 States at large. I always did believe and still believe, 
 that we have no common law for the United States, espe- 
 cially in criminal cases. The only ground on which the 
 common law becomes a rule of decision in the federal courts, 
 is under that clause in the judiciary law (i Laws of United 
 States, ch. 20, 34, p. 74), which makes the laws of the several 
 states a rule of decision, as far as they respectively apply. 
 The common law is part of the law of Virginia, and the 
 act of congress has adopted the laws of Virginia as the 
 rule of decision in cases where they apply. 
 
 With respect to crimes and offenses against the United 
 States, which must be punished in an uniform manner, 
 throughout the Union, it seems clear, for the reason al- 
 ready given, that none such can exist at common law, as 
 the United States have in that character no common law, 
 and that they must be created by statute. Unquestionably 
 the gentlemen will not deny this uniformity ; they will not 
 contend that what is treason in Maryland is not treason in 
 Virginia, or vice versa. If it exist at all, it must be uni- 
 form, embracing the whole of the United States. I do 
 not know whether gentlemen will admit, but I presume 
 they will not deny, that treason against the United States 
 is only punishable by virtue of the act of congress, under 
 the constitution of the United States, and that no in- 
 dictment would lie against any person for such an of- 
 fense till it passed; and the crime being punishable by 
 general statutory regulation, extending throughout the 
 United States, the mode in which that regulation operates 
 must be uniform. The act of congress does not admit of 
 different constructions in different states. To illustrate 
 this position by a familiar case, I will mention the late 
 sedition law. One party thought it unconstitutional ; 
 another party thought it consistent with the constitution, 
 and that a person guilty of the offense could be pun- 
 ished in each state, by the common law in such state. 
 It was a question of jurisdiction, but all parties agreed, 
 that if the constitution did authorize (or did not pro- 
 hibit) congress to legislate on the subject, no person 
 could be punished for such an offense, till they passed an
 
 ARGUMENT OF MR. WICK HAM. 617 
 
 act creating the offense ; because there was no general 
 common law pervading the United States. The party 
 who thought it constitutional, were of opinion that the 
 offense was punishable as soon as the law passed. The 
 other party of course thought otherwise. 
 
 That the United States have no common law, and that 
 offenses against them must be created and prohibited by 
 statute, is the opinion of the learned Judge Chase, 
 and I believe that this opinion received the unqualified 
 approbation of those who thought most unfavora- 
 bly of his opinions and judicial conduct on other occa- 
 sions. 
 
 Now, as there is no general common law of the United 
 States, the act of congress must be constructed without 
 any reference to any common law, and treason is to be 
 considered as a newly created offense, against a newly 
 created government. 
 
 In England treason and felony are classes or descrip- 
 tions of offenses at common law ; they are generic terms ; 
 aiders and abettors are punished in the former, if you will, 
 as principals, in the latter as accessories. 
 
 It is a rule of law there, that, when a statute is made 
 in affirmance of the common law, or to supply the defects 
 of the common law, it should be expounded according to 
 the common law. See 10 State Trials, 436 ; M'Daniel's 
 case, Hob. Rep. p. 98. 
 
 It has therefore been held, that if an act, criminal at 
 common law, be declared by a statute to be felony or 
 treason, it being made to supply the defects of the com- 
 mon law, its prototype, the same consequences follow as 
 if it were felony or treason by common law. It becomes 
 therefore unnecessary to mention accessories, or even to 
 define the punishment ; and accordingly there are acts 
 of parliament which go no further than to declare, that 
 the offenses mentioned in them shall be felony, without 
 even mentioning the punishment. 
 
 This rule may be questioned on this ground, that penal 
 statutes should be construed strictly ; but it is generally 
 considered as law in England, that when a felony is created 
 by statute, accessories to it, though not named in the 
 statute, are punishable ; and that all legal consequences 
 of felony are attached to it by the common law, except
 
 6i8 TRIAL OF AARON BURR. 
 
 in cases where the special nature of the act leads to a 
 different conclusion. 
 
 This rule is illustrated by the decisions on the 28 Hen. 
 8, chap. 15, which makes piracy, an offense not punish- 
 able at common law, felony. 
 
 It has been solemnly adjudged, that as this was not a 
 common-law offense, it worked no corruption of blood ; 
 that accessories to it were not punishable ; in short, that 
 the statute not being made in imitation or supply of the 
 common law, shall not be construed according to the 
 course of the common law. Hawkins, in his P. C. p. 152, 
 c. 37, speaking of the said act of Hen. 8, making piracy 
 felony, says that " in the exposition of the statute, it has 
 been holden, first, that it does not alter the nature of the 
 offense, so as to make that which was a felony only by 
 the civil law, now become a felony by the common law ; 
 for the offense must still be alleged as done upon the sea, 
 and is no way cognizable by the common law, but only 
 by virtue of this statute ; which by ordaining that, in 
 some respects, it shall have the like trial and punishment 
 as are used for felony at common law, shall not be carried 
 so far as to make it also agree with it in other particulars 
 which are not mentioned. And from hence it follows, 
 that this offense remains as before, of a special nature, 
 and that it shall not be included in a general pardon of 
 all felonies, which as it was, before this statue, to be ex- 
 pounded of no felonies which are such only by the civil 
 law, shall continue still to have the same construction." 
 " From the same ground also it follows, that no persons 
 shall, in respect of this statute, be construed to be, or 
 punished as accessories to piracies before or after, a; 
 might have been, if it had been made a felony by the 
 statute, whereby all those would incidentally have been 
 made accessories in the like cases-, in which they would 
 have been accessories to a felony at common law ; and 
 from hence it follows that accessories to piracy, being 
 neither expressly named in the statute, nor by construc- 
 tion included in it, remain as they were before, &c." 
 
 If therefore I be right in my postulatum, that there is 
 no common law of the United States as such, it follows 
 as a necessary consequence, that no persons can be pun- 
 ished for treason, or any other offense under an act of
 
 ARGUMENT OF MR. WICKHAM. 619 
 
 congress, creating such offense, unless they come within 
 the description, of the act ; that no person can be said to 
 have levied war against the United States, where it had 
 not been levied by himself, but by others ; and that no 
 overt act of others can, under the statute, be made his 
 overt act. 
 
 That such was the opinion of the framers of the act of 
 congress (Laws of the United States, vol. I, page 100), 
 for the punishment of treason and other offenses, is 
 manifest. 
 
 In sections 10 and n of the act, the punishment of 
 accessories before and after the fact is defined ; that of 
 the former is death, as in the case of a principal ; that 
 of the latter, fine and imprisonment. 
 
 If the English rule, concerning accessories to felonies, 
 were thought to obtain, to what purpose was the loth 
 section enacted ? By the loth section, the person who 
 advises the piracy is declared to be an accessory and 
 made punishable. If it were implied, why was this pro- 
 vided? In section 16 persons stealing military stores, 
 their counsellors, aiders, and abettors are mentioned ; why 
 were they expressly mentioned, if they would have been 
 necessarily implied ? In the loth section some offenses 
 are enumerated, the accessories to which, before the fact, 
 are expressly made punishable with death ; and in the 
 nth section the accessories to the same crimes, after the 
 fact, are in express terms made punishable with impris- 
 onment not exceeding three years, and with fine not ex- 
 ceeding five hundred dollars ; but even in this enumera- 
 tion, treason is not included. In both sections the offenses 
 of murder, robbery, or other piracy are mentioned, and 
 in the latter, felony is added. The obvious conclusion 
 resulting from this provision in these sections is, that 
 without it, accessories to those offenses neither before 
 nor after, would have been punishable ; and that as trea- 
 son is omitted, accessories to that offense, whether before 
 or after its commission, are not subject to be punished. 
 The 23d section affords an argument still more directly 
 applicable to the present question. It provides that 
 " whoever shall by force set at liberty or rescue a'ny per- 
 son who shall be found guilty of treason, murder, or any 
 other capital crime, or rescue any person convicted of
 
 620 TRI4L OF AARON BURR. 
 
 any of the said crimes, going to execution, or during ex- 
 ecution, every person so offending, and being thereof 
 convicted shall suffer death." "And if any person shall 
 by force set at liberty or rescue any person who before 
 conviction shall stand committed for any of the capital 
 offenses aforesaid, or if any person or persons shall by 
 force set at liberty or rescue any person committed for, 
 or convicted of, any other offense against the United 
 States, every person so offending, shall on conviction be 
 fined not exceeding five hundred dollars and imprisoned' 
 not exceeding one year." This provision punishes those 
 who rescue persons guilty of these crimes after convic- 
 tion, with death, but after commitment and before con- 
 viction, with fine and imprisonment only. 
 
 Now, according to the gentlemen's arguments, all are 
 principals, as well the mere receivers after as the procur- 
 ers, or the actual perpetrator of the offense. There is no 
 distinction in the books. The English writers consider 
 persons who rescue or set at liberty traitors, as acces- 
 sories after the fact ; and they are said to be indictable 
 as traitors. Why, then, was this clause inserted? A re- 
 ceiver of a traitor is as much a principal, according to 
 the doctrine laid down in the English books, as a person 
 aiding before the fact. Will the counsel for the United 
 States contend, that such a receiver is punishable as a 
 traitor, while the person who forces open the doors of 
 the prison, and rescues the principal out of the hands of 
 the marshal, shall be punishable only by a fine of five 
 hundred dollars, and by one year's imprisonment ! If so, 
 a man might rescue a traitor before conviction, and con- 
 duct him to another who receives him. The receiver 
 who, like Lady Lisle, only entertains him but for one 
 night, would be punishable with death, while the rescuer 
 and conductor, whose crime has the additional ingredient 
 of force, and that force directly employed in opposing the 
 administration of justice, would be only fined and impris- 
 oned ! It is so absurd and contrary to the rules of equal 
 justice, that it is impossible that the legislature could 
 have intended it. It proves that congress were of opin- 
 ion that aiders and abettors were not, according to the 
 constitutional definition of treason, traitors and principals. 
 If this were an English statute made with reference to
 
 ARGUMENT OF MR. WICK HAM. 621 
 
 the common law, I might with propriety contend, that it 
 was the intention of the legislature, that when counsel- 
 lors, aiders, and abettors of some offenses are named and 
 not those of others, those not mentioned should be con- 
 sidered as not within the meaning of the act, according 
 to the maxims of law. 
 
 If this were not their intention, why did they mention 
 these terms in one and not in the other? 
 
 But it will be said that in high treason it is unneces- 
 sary to mention counsellors, aiders, &c., because in trea- 
 son there are no accessories ; all are principals. Now 
 this argument is founded on a total misapplication of 
 terms. If they can be punished at all, it is as principals ; 
 but in point of fact, there may as well be aiders and abet- 
 tors in treason as in other offenses. Indeed there are 
 many instances to be found in the statute-books of these 
 very words " aiders, counsellors, and abettors " being used 
 and applied to treason. Th*e statutory treasons between 
 the 25 Edw. 3, and I Mary are collected by Lord Hale, 
 in the 24th chapter of his Pleas of the Crown, p. 258, and 
 among others I would refer the court to the 20 Hen. 6, 
 ch. 3, mentioned by him in page 270; 26 Hen. 8, ch. 13, 
 and 27 Hen. 8, ch. 2, in page 275 ; 35 Hen. 8, ch. I, in p. 
 280 ; all of which, and I doubt not many more, expressly 
 mention counsellors, aiders, and abettors. If it be not 
 necessary to mention aiders and abettors to make them 
 punishable, why are they inserted in these statutes ? In 
 page 375, '' maliciously to wish, will, or desire, by word or 
 writing, or by craft to imagine, invent, practice or attempt 
 any bodily harm to the king, queen, heir apparent, &c., 
 to detain his castles, &c.," is " enacted to be treason in 
 the offenders, their aiders, counsellors, consenters, and 
 abettors." " Counterfeiting the privy seal, privy signet, 
 or sign manual is made treason, and the offenders, their 
 counsellors, aiders, and abettors, to suffer as in case of 
 treason, &c." The statutes, which are made with a refer- 
 ence to this law, mention aiders, counsellors, and abet- 
 tors in some clauses, and not in others. Is not the 
 inference fair, that where they are not mentioned, they 
 are not intended to be subjected to punishment? And 
 when congress took up the doctrine of treason, with refer- 
 ence to the constitution, and did mention the aiders and
 
 622 TRIAL OF AARON BURR. 
 
 abettors in some cases, but not in others, is not the con- 
 clusion equally fair that they did not intend that they 
 should be involved in the guilt or punishment of treason, 
 except where they are expressly mentioned ? But a still 
 better reason may be given why congress did not mean 
 to include aiders, counsellors, &c., in the guilt or punish- 
 ment of treason. It was prohibited by the constitution 
 of the United States to enlarge the doctrine of the com- 
 mission of treason, and that they knew that such a pro- 
 vision would be void. This brings me to the considera- 
 tion of the constitution itself. I have before endeavored 
 to demonstrate that this instrument is not to be explained 
 by the same narrow technical rules that apply to a statute 
 made for altering some provision of the common law ; 
 but that such a construction should be given, as is con- 
 sistent not only with the letter, but the spirit in which 
 the great palladium of our liberties was formed. 
 
 The object of the American constitution was to per- 
 petuate the liberties of the people of this country. The 
 framers of that instrument well knew the dreadful punish- 
 ments inflicted, and the grievous oppressions produced, 
 by constructive treasons in other countries, as well where 
 the primary object was the security of the throne as 
 where the public good was the pretext. Those gentle- 
 men well knew from history, ancient as well as modern, 
 that, in every age and climate, where the people enjoyed 
 even the semblance of liberty, and where factions or 
 parties existed, an accusation of treason, or a design to 
 overturn the government, had been occasionally resorted 
 to by those in power, as the most convenient means of 
 destroying those individuals whom they had marked out 
 for victims ; and that the best mode of insuring a man's 
 conviction was to hunt him down as dangerous to the 
 state. They knew that mankind are always the same, 
 and that the same passions and vices must exist, though 
 sometimes under different modifications, until the human 
 race itself be extinct. That a repetition of the same 
 scenes which have deluged other countries with their 
 best blood, might take place here, they well knew ; and 
 endeavored as far as possible to guard against the evil, by 
 a constitutional sanction. They knew that when a state 
 is divided into parties, what horrible cruelties may be
 
 ARGUMENT OF MR. WICK HAM. 623 
 
 committed even in the name and under the assumed au- 
 thority of a majority of the people, and therefore en- 
 deavored to prevent them. The events which have since 
 occurred in another country, and the sufferings under 
 Robespierre, show how well human nature was under- 
 stood by those who framed our constitution. 
 
 The language which they have used for this purpose is 
 plain, simple, and perspicuous. There is no occasion to 
 resort to the rules of construction to fix its meaning. It 
 explains itself. Treason is to consist in levying war 
 against the United States, and it must be public or open 
 war; two witnesses must prove that there has been an 
 overt act. The spirit and object of this constitutional 
 provision are equally clear. The framers of the consti- 
 tution, with the great volume of human nature before 
 them, knew that perjury could easily be enlisted on the 
 side of oppression ; that any man might become the vic- 
 tim of private accusation ; that declarations might be 
 proved which were never made ; and therefore they 
 meant, as they have said, that no man should be the vic- 
 tim of such secret crimination, but that the punishment 
 of this offense should only be incurred by those whose 
 crimes are plain and apparent, against whom an open 
 deed is proved. 
 
 Now let me ask the opposite counsel what security is 
 afforded by the constitution to the best or meanest man 
 in this country, if the construction on which they insist 
 be correct ? and whether, instead of a safeguard to the 
 citizen, they do not reduce it to an unmeaning phrase ? 
 According to the construction on which they must insist, 
 or abandon the prosecution, all that is wanted to fix the 
 guilt of treason on any individual, is that an insurrection 
 shall have existed somewhere in the United States, no 
 matter where. Observe, sir, that I am arguing on ab- 
 stract principles, and not with a particular application. 
 But suppose the government wished to destroy any man ; 
 they find him in Georgia : an insurrection happens in 
 New Hampshire. This will suffice for the purpose, and 
 if this cause go on, they will be obliged to contend that 
 less will suffice ; that an insurrection is not necessary, 
 but that even a peaceable assemblage going down the 
 Ohio is sufficient for the purpose. They merely under-
 
 624 TRIAL OF AARON BURR. 
 
 take to prove the existence of an insurrection : that a 
 number of people have committed an act of insurrection ; 
 the man who is selected to be a victim is dragged from 
 one end of the continent to the other, before a judge who 
 is the creature of the government, appointed at the 
 pleasure of the government, liable to be thrown out of 
 office if he offend the government : the cause comes on 
 to trial ; they prove an insurrection ; and when once this 
 insurrection or assemblage can be proved by two witness- 
 es, nothing remains but to connect with it the individ- 
 ual thus marked for destruction ; and as this may be 
 done by evidence of his secret acts or even his declara- 
 tions, he may be seized and hurried by force from New 
 Hampshire to Georgia, or to any part of the United 
 States which his accusers may chose as best fitted for 
 their purpose ; it is in vain that he may prove he was not 
 present when the offense of which he is accused was com- 
 mitted ; that he never at any period of his life had been 
 there ; that the actors and the scene were alike unknown 
 to him ; wretches, who from views of interest or revenge, 
 are ready to further the views of his oppressors, will pre- 
 sent themselves, and he may be convicted of treason in 
 levying open war against the government, with people 
 whom he never saw, and at a place where he never was. 
 Gentlemen may say that this only shows that the citi- 
 zen may be equally the victim of false accusations of 
 other offenses ; that it proves nothing, but that the inno- 
 cent may be condemned on the testimony of perjured 
 witnesses. In no other crime can a man be punished 
 except in the county or district where he committed the 
 act. Let gentlemen mention for what other offense an 
 individual may be tried in a different district from the 
 one in which he did the act which constitutes the essence 
 of the crime ; and admitting their principle in its full force 
 what becomes of the constitutional provision on this 
 subject? where is the constitutional tribunal to try him, 
 " an impartial jury of the state, wherein the offense has 
 been committed?" It is reduced to a mere nullity. 
 The constitution meant something ; but according to 
 this construction, it means nothing, and deceives instead 
 of affording any security. It may be objected that trea- 
 sonable conspiracies might thus go unpunished. To this
 
 ARGUMENT OF MR. W1CKHAM. 625 
 
 it is a sufficient answer, that they may be prosecuted and 
 charged, according to the truth of the case. Here I will 
 mention an authority, which shows the propriety and 
 safety of limiting and fixing the definition of treason; 
 and how much the English statute, from which the words 
 of our constitution are taken, has been approved of in 
 that country. Hume's History of England, vol. 2, p. 487 : 
 
 " One of the most popular laws enacted by any prince 
 was the statue which passed in the 25th year of this 
 reign, and which limited the cases of high treason, before 
 vague and uncertain, to three principal heads : conspiring 
 the death of the king, levying war against him, and adher- 
 ing to his enemies ; and the judges were prohibited, if any 
 other cases should occur, from inflicting the penalty of 
 treason, without an application to parliament. The 
 bounds of treason were indeed so much limited by this 
 statute, which still remains in force without any altera- 
 tion, that the lawyers were obliged to enlarge them, and 
 to explain " a conspiracy for levying war against the 
 king, to be equal to a conspiracy against his life ; and 
 this interpretation seemingly forced, has, from the ne- 
 cessity of the case, been tacitly acquiesced in." 
 
 But it will be objected, that admitting the full force 
 of this reasoning, it can not avail us, as the point has 
 been settled by a decision of the supreme court ; and 
 that argument must yield to authority. 
 
 At the same time that I deny the legislative effect of 
 a decision of the supreme court, I will admit that it is 
 intitled to the highest respect, as evidence of the law ; 
 and that the reason which would warrant the court in 
 departing from it, must be strong and apparent: but to 
 entitle it to this respect, the decision must have turned 
 upon the very point in issue : and if the case should ever 
 occur of an anomalous decision of that court, in opposi- 
 tion to known and established rules of law, I* have no hesi- 
 tation in saying, that it ought not to form a rule for this 
 court. A mere dictum or an expression thrown out in 
 argument without consideration (or if there were consid- 
 eration, yet if the point in issue did not turn upon it) 
 ought not to be deemed an authority. 
 
 There is, however, no such decision ; the case never has 
 occurred ; for, until the present instance, there never has 
 
 40
 
 626 TRIAL OF AARON BURR. 
 
 been an attempt in the courts of the United States, to 
 convict an individual for treason, who was not actually 
 on the spot when the act charged in the indictment was 
 committed. 
 
 I will admit that in the case of Messrs. Bollman and 
 Swartwout, which was only a question of commitment, 
 decided by the supreme court, there is a dictum, which 
 is reported to have fallen from the chief justice in deliv- 
 ering the opinion of the court, that is in opposition to the 
 doctrine I have been contending for ; but the decision of 
 the court did not turn on that point ; a determination of 
 that question, one way or the other, would have no ef- 
 fect on the judgment : it was therefore extrajudicial. 
 Your honor can set me right if I be mistaken ; but I be- 
 lieve the point now relied on by the prosecution, either 
 did not come before the court, or was very slightly 
 touched on by the bar: it was a mere dictum of the 
 judges stated arguendo, an oditer opinion delivered 
 without argument, and not necessary to have been de- 
 cided. A decision on the very point in controversy is 
 evidence of the law ; but an obiter opinion, a mere dictum 
 or decision on a point not before the court, is no author- 
 ity at all. Points of law not immediately arising on the 
 question, are frequently mentioned by judges, by way 
 of illustration or explanation ; and such opinions never 
 have the force of precedent. The question before the su- 
 preme court was, who were concerned in the con- 
 spiracy, and who were not ; but the point now before 
 this court, never came before the supreme court, for, 
 as I have already observed, this is the first at- 
 tempt in this country to convict a person of trea- 
 son, who was not present when the act was committed. 
 It is well known that Vigol and Mitchel, the only per- 
 sons of the multitude concerned in the western insurrec- 
 tion in 1794, who were convicted and sentenced to die 
 (but were afterwards- pardoned), though the most actively 
 engaged, were mere instruments instigated and per- 
 suaded by others; but what was the conduct of the gov- 
 ernment of the United States on that occasion? Were 
 those who fomented, advised, or encouraged the insur- 
 rection, but were not actors in it, indicted and prose- 
 cuted ? No actors and actors only, were indicted ; and
 
 ARGUMENT OF MR. WICK HAM. 627 
 
 I trust this attempt, which is as novel as it is dangerous, 
 will never be sanctioned by this court ; and if I know my 
 own mind, I feel a better and more powerful motive than 
 professional duty, in endeavoring to prevent the estab- 
 lishment of their doctrine ; a most ardent desire to avert 
 from my country, my family, and myself, an evil so very 
 pernicious and repugnant to every principle of civ.il lib- 
 erty. I would unite with themselves with as much zeal 
 and energy as possible, in opposing it ; for if it were to 
 be sanctioned as a confirmed doctrine, it might be justly 
 said, that, however perfect in theory, our government 
 was a practical tyranny at the pleasure of those who 
 have the administration of the government in their 
 hands. It is on these grounds that I have argued this 
 cause ; not solely in defense of my client, but for the 
 sake of the community at large, and of posterity. 
 
 If the law be as I have stated, it is not very extraor- 
 dinary that the court should, in a point not immedi- 
 ately before it, have adopted the dicta of writers in 
 England as authority, and have applied them to this 
 country, without full consideration of all the points on 
 which the question turned. 
 
 I think, therefore, that it is proved that under the 
 constitution of the United States no man can be con- 
 victed of treason, who was not present when the overt 
 act charged in the indictment was committed. 
 
 Before I proceed further, I beg leave to remark that all 
 my arguments and illustrations are on abstract principles ; 
 that I wish to make no particular or individual allusions ; 
 and that I do not mean the smallest reflection on the 
 government : nor should I think myself justified to waste 
 the time of the court in making such observations. I 
 now proceed with my argument. 
 
 If, contrary to my firm conviction, I should be mistaken 
 on this point, I contend, 
 
 Secondly, That the offense, if it be punishable, should 
 be laid in the county and district where the act was done 
 by the accused which renders him guilty. If he be guilty, 
 it is by means of some act done by himself; and that act 
 must have locality. The prosecutors must prove the 
 fact as laid in their indictment. They have pledged 
 themselves to furnish proof in support of the charge
 
 6a8 TRIAL OF AARON BURR. 
 
 therein specified. It being admitted that Mr. Burr 
 was not present when the act was done, we contend that 
 they should at once withdraw their indictment, as it does 
 not contain a specification that can be supported by the 
 evidence. If he have conspired to levy war against the 
 United States, and it be admitted that the war was 
 carried on by others in his absence, his offense can only 
 be punished by a special indictment charging the facts 
 as they existed. 
 
 To this will be objected the rule of law, that in treason 
 all are principals ; and that therefore, in construction of 
 law, the accessory was present aiding and abetting at the 
 same time and place where the overt act was committed. 
 But this objection arises from a misapplication of the 
 rule ; aiders and abettors after the fact are as much in 
 construction of law, principals, as those before the fact ; 
 yet there is no doubt that they must be tried, not in the 
 county where the war was levied, but where they did 
 the act, which makes them principal traitors by relation. 
 The rule of law is not founded on arbitrary principles, but 
 on maxims of immutable justice and reason. Though it 
 requires, as the best means of deterring people from the 
 commission of so henious a crime, that all who are in any 
 manner concerned in it should be equally punished, yet to 
 prevent oppression, it must be so construed as to be consis- 
 tent with another sacred rule of law, that the accused must 
 be informed of the precise nature of the charge against 
 him, in order that he may be prepared to defend himself. 
 The accusations, whether in an indictment or informa- 
 tion, should specially state the offense which is intended 
 to be proved against the accused. He can not other- 
 wise be prepared to defend himself. An offense, differ- 
 ent from that which is charged against him, and which 
 alone he can be expected to meet with his defense, is 
 never allowed to be given in evidence. This is the foun- 
 dation of all the niceties in criminal prosecutions; but 
 this objection is not founded on any critical nicety, but 
 on the broad merits of the case. If the indictment were 
 not to give notice of the precise nature of the accusation, 
 the party accused might be oppressed and destroyed. 
 Does this indictment inform us that it was meant to be 
 proven that Mr. Burr was not present when the overt act
 
 ARGUMENT OF MR. WICKHAM. 629 
 
 was committed, but that he was guilty of treason, by being 
 connected with those who perpetrated the overt act ? 
 On the contrary, is it not presumable from the charge 
 in this indictment, that Mr. Burr himself committed the 
 act, and levied the war against the United States in per- 
 son ? What information does the indictment give of the 
 true nature of the charge meant to be supported ? For 
 what purpose did they comply with the formality required 
 by the act of congress of giving him a copy of the indict- 
 ment, but to inform him that they meant to prove that 
 he did the act on Blannerhasset's island in person? It 
 could admit of no other rational construction, than that 
 they intended to prove that he was there at the time. 
 Presuming this, we could not make this motion, till \ve 
 found by what proof they meant to support the indict- 
 ment. The accused, therefore, concludes that the charge 
 to be supported is, that he in person levied the war 
 against the United States at the place mentioned in the 
 indictment. In order to completely negative the idea of 
 his being charged as an accessory or aider to other people, 
 this indictment is drawn in a special and peculiar man- 
 ner ; not as indictments are generally formed. It charges 
 that he committed the act on Blannerhassett's Island, with 
 divers persons unknown. Neither Mr. Blannerhassett nor 
 Tyler, nor any other particular person is named, but he 
 is alleged to have done the act with persons unknown. 
 
 But it will be objected, that if guilty, he must know 
 whether the act is done or not, and be prepared to de- 
 fend himself; and that, if not guilty, no evidence can be 
 given that will fix the crime upon him ; and there is no 
 necessity of a specification. But this objection goes 
 directly to prove that there is no necessity for an indict- 
 ment at all. The court knew that an accusation might 
 be supported by perjury, and circumstances may create 
 a presumption of guilt which testimony would explain, 
 and which explanation would evince the innocence of the 
 accused. Besides, if the general doctrine contended for 
 on the other side be correct, a man may be guilty of 
 treason in being connected with a conspiracy to levy war, 
 and be really a stranger to the commission of the overt 
 act, which makes him a traitor by relation. 
 1 It will be said that levying war is always a public act,
 
 630 TRIAL OF AARON BURR. 
 
 and therefore there is no difficulty in knowing what is 
 intended to be proved. Two answers may be given to 
 this objection : one is, that granting this to be true, the 
 accused is to be informed of the charge against him, not 
 by public rumors, but by the terms of the accusation 
 itself. The other applies to this particular case only. 
 The general doctrine always has been, that to prove the 
 charge of levying war, it must be shown that there* have 
 been overt acts ; and as the charge must correspond 
 with the proofs, the course has always been to state in 
 the indictment that the accused levied public war. In 
 every indictment for treason that I have met with, in the 
 State Trials or books of entries, the word " public," or 
 an equivalent word is inserted. The words, " public war, 
 did prepare, begin and levy," are in the indictment in the 
 following cases: 8 State Trials, p. 219, in the prosecution 
 against Damaree ; in that against Willis, and in that 
 against Purchase, p. 220 , in 9 State Trials, p. 543, in the 
 indictment against Townley, the words " did prepare, 
 order, wage and levy a public and cruel war " are used ; 
 and it is stated in the report, that that form of indictment 
 was made use of against all the rebels who were tried in 
 Surry, except one for a special reason. 
 
 The same words are used in the indictment against 
 Lord Kilmarnock, page 592 of the same volume, and 
 against Lords Cromarty and Balmerino, in page 593. It 
 is also so stated in Foster's Crown Law, 6. In Tremaine's 
 Pleas of the Crown, 2, the indictment for levying war is 
 in the same form, "traitorously did prepare, levy, and 
 ordain public war ; " and in this country the indictment 
 against John Fries has the same words, " did ordain, 
 prepare, and levy public war against the United States." 
 
 In the present instance, gentlemen do not say in the 
 indictment that there was a public war ; they only tell 
 us of an act that may be private or public. They do 
 not pretend to say that there were marching and coun- 
 ter-marching in military array ; that they had great 
 guns, &c., drums beating, &c. 
 
 In the present, the word public is omitted in both 
 counts of the indictment ; I do not suppose that it was 
 done studiously. Whether this were done by accident, 
 " currente calamo," or to make it more palatable to the
 
 ARGUMENT OF MR. WICK HAM. 631 
 
 grand jury, need not be inquired. Whether this word 
 be considered as operative or be omitted in any indict- 
 ment in this country, I do not know, but it is used in 
 all the English precedents. I only use this argument 
 for the purpose of showing that there is no ground for 
 presuming knowledge of the fact, if indeed such a fact 
 ever existed. On principle, therefore, it is apparent 
 that this indictment does not warrant the introduction 
 of evidence to charge the accused with the acts of others 
 when he was present. Let me ask if a fiction that the 
 accused levied war be admitted, what necessity is there 
 for another fiction, that hewas at a place where he was not ? 
 
 The only argument on common-law principles that 
 can justly be urged, would go to prove that he could 
 not be tried anywhere. 
 
 In another branch of this argument I have had occa- 
 sion to show, that although it is laid down in the Eng- 
 lish books, that all are principals in treason, yet that this 
 rule only applies to the degree of punishment and de- 
 nomination of the offense ; that in the progress of the 
 prosecution, the same rules of law which apply to the 
 case of accessories in felony, are to be followed with re- 
 spect to aiders and abettors before the fact in treason ; 
 and that this principle has been stated by most of the 
 writers who have stated the general rule. I shall have 
 occasion in another part of my argument to explain this 
 principle more fully. 
 
 Now, it is clear that at common law an accessory to a 
 felony which was committed in a different county from 
 the one where the accessorial act was done, was not 
 punishable at all. At common law, the accessory could 
 not be arraigned till the principal were attained. If the 
 principal had never been indicted at all, had stood mute, 
 had challenged above thirty-five jurors peremptorily, 
 had claimed the benefit of clergy, had obtained a par- 
 don, or had died before attainder, the accessories, in any 
 of these cases, could not be arraigned. At common 
 law, therefore, if a felony were committed by A, and B 
 had counselled, procured, or commanded him to com- 
 mit it, and A had died, been pardoned, or stood mute, 
 &c., so that he had not been and could not be convicted. 
 B could not be tried at all. But a statute amended the
 
 032 TRIAL OF AARON BURR. 
 
 law in this respect (See Hale's P. C. ch. 57, p. 62). But 
 the constitution of the United States has fixed the 
 place of trial, if indeed it can take place anywhere. 
 
 The eighth article of amendments to the constitution, 
 provides that " in all criminal prosecutions, the party 
 accused shall have a speedy and public trial, by an im- 
 partial jury of the state or district where the crime was 
 committed. This was meant to be a substantial provi- 
 sion, securing a trial by the vicinage ; and yet according 
 to the construction contended for by the gentlemen on 
 the other side, it is merely illusory, and a man who was 
 born in Virginia, and was never out of the limits of the 
 state, may, notwithstanding the constitutional provision 
 in his favor, be hurried off to New Hampshire, and 
 tried for an offense which he never did commit, and 
 which it is impossible he should have committed there. 
 At all events the rule must be uniform. Now, it must be 
 admitted that an aider or abettor after the fact must be 
 tried in the county and district where he committed the 
 offense : and what sufficient reason can be assigned for 
 a different rule in the case of an aider or abettor before 
 the fact? 
 
 No precedent can be produced in point on either side ; 
 because, except in the case of Sir Nicholas Throgmorton, 
 there is no instance to be found in the whole judicial 
 history of England (under any of its different forms of 
 government, being sometimes a despotism, sometimes a 
 limited monarchy, sometimes a republic), of an attempt 
 like the present, under any form of indictment ; and that 
 case, as far as it is an authority, is directly in our favor. 
 He was indicted for levying war against the queen ; and 
 the evidence was a connection with Sir Thomas Wiatt, 
 who raised an insurrection in Kent, and marched towards 
 London, but did not enter within the jurisdiction of the 
 city, which begins at Temple Bar. Yet Throgmorton 
 was tried within the jurisdiction of the city, and the 
 lord mayor presided at the trial, and he was acquitted. 
 
 It is true that it is laid down in East, an elementary 
 writer, who certainly is himself no authority, that there is 
 nothing to remark of difference between principals and 
 accomplices in respect of the indictment ; but so far as 
 we can judge from cases in any degree analogous, the
 
 ARGUMENT OF MR. WICK HAM. 633 
 
 rule has been different. In Tremaine's Pleas of the Crown, 
 in the case of an indictment against Mary Speke, for aid- 
 ing the duke of Monmouth and others in the act of levy- 
 ing war against the king, the charge is special. As this 
 was in the 4th year of the reign of James II. and the act 
 is charged as having been committed in the county of 
 Somerset in the west of England, it must have been one 
 of the cases that came before the inhuman Jefferies ; and 
 it seems that even he deemed it necessary that the ac- 
 cused should at least be apprised of the nature of the 
 charge, by a special indictment charging the facts as they 
 existed. 
 
 It may be said that the accused, in that case, was in 
 the nature of an accessory after the fact ; but this can 
 not be supported, for she was an assister at or during the 
 fact, which is the same thing as an accessory before the 
 fact. How was she charged? The indictment is, that 
 she, knowing the said James Scott (the duke of Mon- 
 mouth) to be a false traitor, and that he, with many other 
 false traitors to the number of 4,000. had assembled and 
 collected and " had traitorously prepared, levied and raised 
 war, insurrection, and rebellion against the king, &c., for 
 the comforting, assisting, aiding, and supporting of the 
 said James Scott, &c., in the war, rebellion, and insurrec- 
 tion aforesaid, &c., did cause to be conveyed and carried 
 to the said James Scott, &c., cart loads of bread and of 
 cheese, &c." In a case of felony, such an accomplice 
 would be an accessory before the fact. There are in law 
 but two species of accessories one before, the other after. 
 A person aiding at the time when the act was done has 
 always in construction of law (except where present and 
 deemed a principal) been considered as an accessory be- 
 fore the fact. 
 
 In the case of Somerville, I Anderson's Reports, p. 106, 
 although the indictment is not set out at large, the form 
 is particularly described, and it appears to have been set- 
 tled on great consideration, "that aiders and the other 
 procurers of the treason should be indicted specially for 
 the procurement." Somerville was procured and per- 
 suaded by Edward Arden and his wife, to kill the queen. 
 It was on great consideration determined, that according 
 to law, if all three were indicted for " levying war," that
 
 634 TRIAL OF AARON BljRR. 
 
 he should be charged with doing the act, and that they 
 should be indicted specially for procuring and aiding him, 
 that each ought to be charged according to the truth of 
 the case ; but that a general indictment was sufficient to 
 support the charge of compassing the death of the queen ; 
 and on great consideration they determined that aiders 
 and other procurers of treason should be indicted special- 
 ly for the procurement. 
 
 But if this form of indictment be insisted on as being 
 proper on this occasion, it must be under a general rule 
 applicable to all cases of aiding in the commission of an 
 overt act of treason,; and if in any case a departure from 
 the rule for the purposes of justice would be proper, it 
 would be such a one as the present ; none requires speci- 
 fication more. 
 
 Now among the treasons created by act of parliament, 
 which are collected in I Hale's Pleas of the Crown, ch. 
 24, p. 280, is one created by the 28 Hen. 8, ch. 18, by 
 which " marrying any of the king's children or reputed 
 children, or his sisters, or aunts of the father's part, or 
 the children of the king's brethren, or sisters, without 
 the king's license under his great seal, or deflowering of 
 any of them, is enacted to be treason. Now we may 
 suppose a very probable circumstance, that a female ac- 
 complice in one of those treasons, for instance one of the 
 maids of honor, should be prosecuted for aiding and 
 abetting the principal traitor, would she be indicted by 
 her name, as a female, with the addition of spinster, for 
 marrying the king's aunt, or deflowering his daughter? 
 or would she be charged specially with aiding or abetting 
 the male person who did the act ? By 33 Hen. 8, I Hale, 
 281, it is made treason in any woman the king shall 
 intend to marry, thinking her to be a true maid, to marry 
 him if she be not so. Now it is a very possible case that 
 the paramour of such a woman (I will suppose her to be 
 one of the maids of honor, arid him to be a lord of the 
 bedchamber) should aid her in imposing on the king. 
 She is tried, found guilty and executed. How is he to 
 be so charged ? would he be indicted by the name of A. 
 B. gentleman, or by his title of lord, for marrying the 
 king, not being an unspotted virgin, or to use the language 
 of the act, a pure and clean maid? This may seem to
 
 ARGUMENT OF MR. WICKHAM. 635 
 
 be treating the subject with more levity than I could 
 wish to do ; but the argument directly applies ; it exposes 
 the fallacy of gentlemen's arguments. It may indeed be 
 said that, in these instances, there would be a physical 
 impossibility in the act, as charged in the indictment, 
 and that therefore in such a case it ought to be charged 
 so as to correspond with the fact ; but this is an admis- 
 sion that it may be charged, and if in any case, it surely 
 ought in such a one as the present ; for it is as much a 
 physical impossibility that Mr. Burr should be at Blan- 
 nerhassett's island and in Kentucky (places several hun- 
 dred miles distant) at the same time, as that an individ- 
 ual should be at the same time a man and a woman. 
 
 A little attention to principles must satisfy us, that 
 levying war may consist of a great variety of acts ; yet it 
 is one entire/ offense. The expression in the act is 
 " levying war," in the indictment " levying a public war." 
 Now a war may consist of a single act of hostility, or a 
 great variety of acts. If a man were concerned in the re- 
 bellion of 1715 and in that of 1745, though there is a com- 
 plete space of thirty years between them, he might be 
 indicted for both, because they are separate rebellions 
 and insurrections; but if he were concerned in that of 
 1745 only, he could not be charged with the battles of 
 Preston Pans, Culloden, and taking of Edinburgh, Man- 
 chester, Carlisle, &c. in separate indictments in succes- 
 sion : for if so, there might be a thousand or more trials, 
 though there was but one rebellion ; it might be divisi- 
 ble ad infinitum. 
 
 After charging generally that war was levied, every 
 indictment charges certain overt acts, and these overt 
 acts are laid for the yiformation of the party. The pro- 
 secutor may lay as many overt acts as he thinks proper, 
 and select which he chooses ; but they must be all laid 
 at once in the same indictment. They are the charge 
 which, if proved by evidence, supports the indictment. 
 If the charge be for the information of the party, is he 
 not excused if it be not made good ? Was it ever heard 
 that a person might be tried over and over again for trea- 
 son in the same rebellion ? Has it ever been pretended, 
 that, when a person came prepared to contest particular 
 facts, other facts were to be proved against him ? For
 
 636 TRIAL OF AARON BURR. 
 
 example, a person is charged with a succession of facts 
 done at Edinburgh, Falkirk, Preston Pans, Carlisle, &c. ; 
 he comes prepared to prove an "alibi ; " but on the trial 
 finds instead of these facts being intended to be 
 proved, that the counsel for the prosecution introduce 
 evidence of facts committed at places totally different 
 from those in the indictment, and not committed by 
 himself, but by others when he was not present ; would 
 not this evidence be a surprise upon him ? would it be 
 admitted? So in treason for compassing the king's 
 death, is there a single instance in which an overt act, 
 not charged in the indictment, and distinct from that 
 which is charged, has been attempted to be proved on 
 the prisoner? There is not. An overt act not charged 
 may be proved when it tends to prove that which is 
 charged ; but then that is never admitted till after the 
 overt act charged is proved. 
 
 They charge Mr. Burr with being at Blannerhassett's 
 island, when he was two or three hundred miles off in 
 Kentucky, and instead of proving it, they offer to prove 
 that the act was done by others. If, however, I be mis- 
 taken in this point, and it were intented to make us re- 
 ponsible for the acts of others, the indictment should have 
 stated the charge generally; and their names should be 
 mentioned in the indictment ; and we should be charged 
 with doing the act jointly with them. In the present 
 case this is not only omitted, but the prosecutor by the 
 very terms of the indictment negatives the charge of aid- 
 ing others, and thus becoming responsible for their acts. 
 It is expressly stated that we levied war with certain 
 persons unknown. This is contrary to the fact as as- 
 sumed by themselves : for the fact that known persons 
 have committed an overt act, and have done so in con- 
 nection with us, is the sole ground on which it is pre- 
 tended that the indictment can be maintained. 
 
 In answering this objection, the counsel for the pros- 
 ecution may shelter themselves under the form of law 
 and say that precedents are in their favor ; now a re 
 ference to the precedents will satisfy the court, that 
 nothing is more common than to charge persons with 
 committing treason with others, who are not indicted 
 themselves.
 
 ARGUMENT OF MR. WICKHAM. 637 
 
 In Tremain's Pleas of the Crown, there are two indict- 
 ments for conspiracy to levy war, with one who is not a 
 party to the indictment : the first in pp. 279, 280, the case 
 of the King v. Gerard, who is indicted and charged with 
 conspiring and imagining the death of the king "with 
 divers other false rebels and traitors to the jurors un- 
 known ;" and also with " falsely, wickedly and traitor- 
 ously with James duke of Monmouth and with divers 
 other false traitors to the jurors aforesaid unknown, as- 
 sembling, &c., to levy and make war and rebellion against 
 the king, Sec.," and in page 307 in the indictment against 
 John Hambden, it is charged that he " did traitorously, 
 with diver other false rebels and traitors to the j.urors 
 aforesaid unknown, conspire, compass, imagine, &c./' and 
 that " he traitorously with James late duke of Monmouth 
 and divers others false traitors, to the jurors aforesaid 
 unknown, did assemble, meet, consult and agree to raise 
 and procure divers great sums of money, and great num- 
 bers of armed men traitorously to levy and make war and 
 rebellion against the king," &c. Here is an express speci- 
 fication of his having associated in the treason with the 
 duke of Monmouth and others unknown. There are also 
 a number of cases in the State Trials, in which the ac- 
 cused are charged with a design to levy war with persons 
 who are named, though those persons are not parties to 
 the indictment ; among a number of others I could refer 
 the court to the case of Doctor Hewitt, 2 S. T. p. 281, and 
 the case of John Morant, Esq., ibid. p. 291, and 4 S. T. p. 
 132, the case of Henry Cornish, who was indicted for 
 that " traitorously knowing James the late duke of Mon- 
 mouth, William Russel, Esq., and Thomas Armstrong, 
 knight, and divers other traitors, traitorously to have 
 conspired the death of the king, he, the said Henry Cor- 
 nish, as a false traitor, did traitorously promise to the said 
 other traitors to be aiding and assisting in the treason 
 aforesaid. In all these cases, in laying the overt act 
 charged in the indictment, the connection of the accused 
 with certain other individuals named is expressly stated. 
 
 It is a rule of law, that a charge must be proved as laid. 
 It would, therefore, have been inadmissible to give in 
 evidence a connection with other persons than those 
 named in the indictment, and not with them.
 
 638 TRIAL OF AARON BURR. 
 
 Those who framed these indictments must, therefore, 
 have thought it necessary to shape their charge in this 
 form, in order to make it correspond with the proofs ; 
 and what case can be conceived, in Avhich a specification 
 would be more necessary than the one before the court, 
 when it is admitted that the accused was not present ? 
 when an attempt is made to charge him solely on the 
 ground of a connection with others, can it be right to 
 make him liable for their acts, when they are not even 
 named in the indictment ? Nay more, when it is 
 expressly declared, that he did the act, and the others, 
 who aided him in doing it, were unknown ? Suppose 
 there were three distinct insurrections ; he is charged with 
 levying war generally, not a private or secret, but a pub- 
 lic war, could Mr. Burr tell which of the three insurrec- 
 tions he was intended to be charged with ? There is no 
 specification, and he can not tell to which of several acts 
 of war the charge is to be applied. Suppose an assem- 
 blage in London to pull down and destroy conventicles, 
 meeting-houses, or bawdy-houses, and a person, thought 
 to be connected with those who composed the assemblage, 
 but who was not present, should be indicted for " levying 
 war," as in the case now before the court, without nam- 
 ing any of the persons who were present : he would not 
 know how to defend himself against this constructive 
 treason : he could not tell from the indictment for 
 what he was indicted, whether for pulling down and 
 destroying bawdy-houses or conventicles, or* in con- 
 nection with whom it was intended to charge him ; 
 but had he been informed by the indictment what 
 was to be proved against him, he might be able to prove 
 an alibi, or to establish his innocence satisfactorily ; but 
 a prosecution in such a case, without a specification such 
 as I contend for, has never been attempted. 
 
 If it be once established that special indictments are 
 necessary by the law of England, the argument is con- 
 clusive to show that no indictment can be sustained 
 under the constitution, for such an act as is charged 
 against Mr. Burr. Treason consists in levying war only ; 
 but he is not charged (in fact, though he is by the indict- 
 ment) with levying the war personally himself, but with 
 being connected with others who did levy it. Can an
 
 ARGUMENT OF MR. WICKHAM. 639 
 
 accessory after the fact, or a receiver of a traitor, be in. 
 dieted under the constitution ? If he can not, no mere 
 can the accomplice before the fact. If a special charge 
 be necessary on an indictment of an accessory after the 
 fact, it is equally necessary to charge the accessory before 
 the fact specially ; and then the indictment does not 
 conform to the constitution, which requires that the war 
 should be levied by the accused. Treason consists ir, 
 " levying war," not in advising it, or receiving him who 
 has levied it. If you allege an act as done by others, do 
 you not charge that it is done by the others ? In Ensv 
 land a special charge, particularly stating the act of pro- 
 curement or comforting, is proper; but here it is forbid- 
 den by the constitution, treason being expressly limited 
 to the act of war, not of advising or receiving. But the 
 spirit and meaning of the constitution are not to be 
 evaded by charging generally what ought, to be charged 
 specially. I submit, therefore, whether upon principle 
 or practice, any evidence can be given of the acts of third 
 persons, not named in the indictment, when it is admitted 
 that the accused himself was absent. 
 
 Although I trust that some, if not all the points that 
 I have contended for, are decidedly in favor of the accused, 
 there is one more, which, as it rests only on the plainest 
 principles of reason and justice, but on a concurrence of 
 all the authorities on the subject, is too clear to admit 
 of a doubt ; and were the case of less importance, I 
 should have deemed it unnecessary to submit any other 
 to the court. I lay it down as a rule that can not be con- 
 troverted, that even if aiders and abettors in treason be 
 considered as principals, yet that their guilt is derivative 
 and can only be established by legal proof, that the per- 
 son whose acts they are answerable for, have committed 
 treason ; that the only legal proof is a record of the con- 
 viction of those persons; that without such proof, no tes- 
 timony connecting an aider or abettor with those persons 
 is admissible ; and of course if there be no such record, 
 the prosecutors fail in their case, and can not proceed with 
 their testimony. 
 
 In order, therefore, to prove the guilt of an aider or 
 abettor, the person from whom his guilt is derived must 
 be shown to be guilty by the highest evidence.
 
 c TRIAL OF AARON BURR. 
 
 But I would not narrow the grounds of my client's 
 defense, nor do I mean to admit that others who are 
 alleged to have been connected with him in the imputed 
 conspiracy have been guilty, when I insist that his guilt, 
 if it exist, is derived from theirs. I deny that any of 
 them are guilty. This is an act of justice not only 
 to him, but to them. Mr. Blannerhassett, Mr. Tyler, 
 and Mr. Smith, as individuals, are deservedly re- 
 spected ; but they have been held up throughout the 
 United States and in this court as arch traitors. I mean 
 no reflection on the gentlemen on the other side, but 
 judging them on general principles, from the zeal and 
 perseverance which they have already manifested, they 
 will continue strenuously to contend that those injurious 
 reports are well founded, and that their guilt is unques- 
 tionable. Mr. Burr, therefore, considers it not an act of 
 justice to himself only, but a sacred obligation respecting 
 them, that this charge should be inquired into ; and, if 
 not established, that those unfounded calumnies should 
 be refuted. Unless the record of the condemnation of 
 some persons who are to be proved to be traitors be pro- 
 duced, and the connection between them and Mr. Burr 
 be proved, no other proof is admissible, or can be received. 
 That this is the rule in all felonies is beyond all question ; 
 the accessory never can be convicted until the principal 
 be found guilty ; and a record of the conviction of the 
 principal must be produced on the trial of the accessory. 
 But perhaps it will be observed by. the gentlemen on 
 the other side, that in treason there is no accessory, and 
 all are principals. That rule is general, and applies to 
 accessories after as well as to accessories before the fact. 
 I contend that with respect to accessories after the fact, 
 it has always been adjudged and considered as settled law, 
 except by Chancellor Jefferies, that in order to fix guilt on 
 such accessory, the principal who did the act must be 
 convicted. Lady Lisle's attainder was reversed by act 
 of parliament, because the person whom she had received 
 had not been convicted. She was a lady of rank and 
 fortune, and tried, convicted, and executed (as before 
 stated) for entertaining, concealing, and comforting John 
 Hicks, knowing him to be a false traitor. It was thought 
 necessary to reverse her attainder by act of parliament.
 
 ARGUMENT OF MR, WICKHAM. 641 
 
 The act calls her trial and condemnation, " an irregular 
 and undue prosecution," and declares that the " verdict 
 was injuriously extorted by the violence, menaces, and 
 other illegal practices of Judge Jefferies; " but it partic- 
 ularly mentions, as a principal ground of the reversal, 
 " that the said John Hicks (the person whom she had 
 entertained) was not, at the trial of the said Alicia Lisle, 
 attainted or convicted of any such crime." Unless it had 
 been thought that the law was settled, .that an accessory 
 could not be prosecuted till the principal had been con- 
 victed, and that she had been deprived of the benefit of 
 this law, by the violence and^cruelty of Jefferies, the act 
 of parliament would not have been passed. 
 
 In several other prosecutions before Jefferies, the con- 
 victions were produced. On the trial of William Ring, 
 an accessory after the fact, for receiving, and comforting, 
 and providing meat, drink, and lodging for Joseph Kel- 
 loway and Henry Lawrence, who were in the rebellion 
 in the Duke of Monmouth's army, the first evidence 
 produced was the record of the conviction of Kelloway 
 and Lawrence, 4 St. Trials, 130-134; and on the trial 
 of John Fernley for harboring and concealing James 
 Burton who had been outlawed for treason, and had been 
 in Monmouth's rebellion, the first evidence produced 
 against him was the record of Burton's outlawry, Id. p. 
 137. Now as aiders after the fact are as much traitors 
 as those before, the same rule applies to accessories be- 
 fore, w-ith equal force. They stand on precisely the 
 same ground ; the guilt of the accused is consequential 
 in both cases. The difference of time does not affect 
 the question, because the act of procurement or advice 
 is never heard of, if the act of treason be not committed ; 
 so that the procurer or accessory before is a traitor by 
 relation, as much as a receiver after. In this point of 
 view there is no distinction between them ; so that the 
 guilt of the procurer or accessory is a consequence of 
 the act ; and if the act be not done, he is not guilty. 
 
 But it is unnecessary to rely on general reasoning 
 however conclusive ; express authorities on the subject 
 may be produced. 
 
 Lord Hale, in the first volume of his Pleas of the 
 Crown, states, that " as to the course of proceeding, it 
 i. 41
 
 642 TRIAL OF AARON BURR. 
 
 hath been, and indeed ought to be the course, that 
 those who did actually commit the very fact of treason 
 should be first tried, before those that are principals in 
 the second degree, because otherwise this inconvenience 
 might follow, viz., that the principals in the second de- 
 gree might be convicted, and yet the principals in the 
 first degree may be acquitted, which would be absurd." 
 Apply this doctrine to the present case : Mr. Burr is 
 charged with being an aider before the fact, to Blanner- 
 hassett, who being charged with " having actually com- 
 mitted the very fact," must be first tried. His guilt is 
 derivative ; and you must prove that the act is done by 
 the conviction of the principal, before you are let into 
 evidence against the accessory. In confirmation of this 
 doctrine he refers to Anderson's Reports, p. 109. Som- 
 erville's or Arden's case. Arden and wife, and Somer- 
 ville were (as before stated) indicted for treason, in com- 
 passing the death of the queen ; the two former as pro- 
 curing or advising the act to be done, and the latter as 
 the actor. It was ruled on great consideration as a 
 general principle, " that the jury must first be charged 
 to inquire of the principal offender, and if they found 
 him guilty, then to inquire of the receipt ; and if the 
 principal be not guilty then to acquit both ; that this 
 was the law where the offense charged was 'levying 
 war;' but where it was for compassing the queen's 
 death, that there was no need that he who undertook to 
 do the act should be first tried ; for the movers and pro- 
 curers are guilty of compassing the 'death, though he 
 that was procured should never assent thereto." 
 
 In the 2d volume, p. 223, the learned author states, 
 that " if A be indicted of high treason, and B be indicted 
 for receiving or comforting him, or procuring or abetting 
 (but not present), here it is true that they are all princi- 
 pals; but inasmuch as B, in case of a felony, would have 
 been but accessory, and it is possible that A may be ac- 
 quitted of the fact, it seems to me that B shall not be 
 put to answer of the receit or procurement till A be out- 
 lawed, or at least jointly with A, and in this case the 
 same jury may be charged with both, and their charge 
 shall be first to inquire whether A were guilty, and if not, 
 then to acquit both A and B ; and if A be found guilty,
 
 ARGUMENT OF MR. WICKHAM. 643 
 
 then that they inquire of B. And in Somerville's case 
 (26 Eliz.), mentioned before, the inquiry was first of the 
 principal offender, and then of the receiver or procurer, 
 to avoid that inconvenience and aweroust, that might 
 happen in case B were first convicted of the procurement 
 and receit, and yet possibly A might be acquitted of the 
 principal fact. 
 
 It can not be contended that by indicting B, as acces- 
 sory or procurer singly, the prosecutor can evade this 
 rule of law, which is founded on the soundest principles 
 of moral right. He can not allege that the defendant has 
 waived it, because the indictment has given him no notice 
 that he was to be charged as principal in the second de- 
 gree ; there being no reference to any other individual 
 named in the indictment. 
 
 If, then, Lord Hale be an authority on this point, he is 
 conclusive. He says that aiders and procurers before the 
 act, and receivers after, never can be guilty if the prin- 
 cipal be innocent. In order to prove that the accessory 
 is guilty, you must have the highest evidence, and that 
 is not conclusive, for he may controvert the guilt of the 
 principal; but the prosecutor is not at liberty to say that 
 he is guilty, without producing the record of his conviction. 
 
 But this question also proves, that I was right on a 
 point I have already argued, that the indictment should 
 charge the offense specially and state that the accused 
 procured the act of treason, which was committed by an- 
 other, who should be named in the indictment. 
 
 The next law writer, in point of authority to Lord 
 Hale, and one certainly no otherwise inferior to him, than 
 in his having confined his disquisitions to particular 
 branches of criminal law, is Foster. He may be said to 
 be of equal authority with Hale, for in point of correct 
 judgment and understanding, none is superior to him. 
 In his chapter on accomplices, he states with explicit 
 approbation the opinion of Hale, and agrees with him in 
 every essential particular. The whole of the first section, 
 from p. 341 to 347, is apposite to the present question ; 
 and as his thoughts will not admit abridgment, I will 
 read the whole to the court : 
 
 " It is well known, that in the language of the law there 
 are no accessories in high treason ; all are principals.
 
 644 TRIAL OF AARON BURR. 
 
 Every instance of incitement, aid, or protection, which 
 in the case of felony will render a man an accessory be- 
 fore or after the fact, in the case of high treason, whether 
 it be treason at common law or by statute, will make him 
 a principal in treason ; unless the case be otherwise pro- 
 vided for by the statute creating the offense, or where 
 the special penning of the act leadeth to a different con- 
 struction. 
 
 " This rule hath long obtained and will not now be 
 controverted ; but I think it a matter of great import- 
 ance, that the rule be rightly understood : I mean with 
 those limitations which sound sense and common equity 
 require. For cases have frequently happened, where an 
 offender in the final issue of the prosecution maybe con- 
 sidered as a principal in treason ; and yet, during the in- 
 termediate steps towards his conviction, he ought, from a 
 principle of natural justice, to be considered merely as in 
 the nature of an accessory before or after the fact. 
 
 " For instance, A. adviseth B. to counterfeit the king's 
 coin or seals, cr indeed to commit any of the offenses 
 declared treason by the 25 Edw. 3, and furnisheth him 
 with means for that purpose (that species of treason 
 which in judgment of law falleth within the clause of 
 compassing the death of the king, queen, or prince al- 
 ways excepted). If B. inconsequence of this advice and 
 encouragement doth the fact, A. is a principal in the 
 treason ; for such advice and assistance in the case of 
 felony would have made him an accessory before the 
 fact ; and in high treason there are no accessories ; all are 
 principals. But if B. forbeareth to commit the fact to 
 which he is incited, A. can not be a traitor merely on ac- 
 count of this advice and encouragement, though his be- 
 havior hath been highly criminal ; for bare advice or in- 
 citement, how wicked soever, unless in the cases already 
 excepted, will not bring a man within the statute, where 
 no treason hath been committed in consequence of it. 
 So in the case of assistance or protection supposed to be 
 given to a traitor after the fact, the party knowingly af- 
 fording such protection, if the treason hath been in fact 
 committed, will be a principal in treason for the reasons 
 already mentioned. But if a person lying probably un- 
 der a suspicion of guilt, conscious of his own innocence,
 
 ARGUMENT OF MR. WICK HAM. 645 
 
 should think it advisable to withdraw, and patiently to 
 wait the issue of things when the storm, which gathereth 
 round him, shall be blown over ; the party who received 
 and harbored him during his retreat can not be a traitor 
 for so doing, provided the conduct of his friend shall ap- 
 pear, upon examination, to have been blameless. Lord 
 Chief Justice Coke, who while he was in the service of the 
 crown seemeth to have had no bowels in state prosecu- 
 tions, when he layeth down and applieth the rule I have 
 mentioned, that all are principals in treason, plainly go- 
 eth upon a supposition, that the treason, presumed to 
 have been procured, was afterwards in fact committed, 
 or that the party supposed to have been knowingly re- 
 ceived and harbored had been actually guilty of hi^h 
 treason. It would have been absurd to the last degree, 
 to have gone upon any other supposition ; for it can not 
 be said with any sort of propriety, that a person procured 
 an offense to be committed, which in truth never was 
 committed ; or. that any person knowingly, viz., with a 
 full knowledge of a treason to have been committed 
 (that I take to be the legal sense of the term knowingly), 
 received and harbored the traitor, if such treason never 
 had been committed by him. 
 
 " There needeth very little to evince the truth of this 
 observation, more than to give a proper attention to the 
 rule already mentioned, that every act which in the case 
 of felony will render a man an accessory, will in the case 
 of treason make him a principal ; especially if we add to 
 it, according to Lord Hale, that nothing short of such 
 an act will. What circumstance, therefore, is necessary 
 to render a man an accessory in felony? Plainly this 
 above all others, that the felony charged upon the prin- 
 cipal hath been in fact committed by him. For which 
 reason no verdict can pass against the accessory, till the 
 truth of this single fact shall have been legally estab- 
 lished either by the conviction of the principal, if he 
 continueth amenable to justice, or by judgment of out- 
 lawry, if he abscondeth or flieth ; unless the accessory 
 chooseth to waive the benefit of the law, and to submit 
 to a trial. 
 
 " This rule is founded in good sense and natural jus- 
 l ; ce. The accessory is indeed a felon, but guilty of a
 
 6 4 6 TRIAL OF AARON BURR. 
 
 felony of a different kind from that of the principal. 
 It is, if I may use the expression, a derivative felony 
 connected with and arising out of that of the principal 
 and can not exist without it. Whether the same equit- 
 able rule is by parity of reason to be extended to treason- 
 able actions of a similar nature, I mean to such as are of 
 the derivative kind, and though in the language of the law 
 styled principal treasons, yet partaking of the nature of 
 mere accessorial offenses, cometh now to be considered. 
 This is the point of importance I hinted at in the outset 
 of this discourse. For if in prosecutions for treasons of 
 this kind the same rule of equity be observed as in cases 
 of felony, it will become a matter of very small impor- 
 tance to have been learning by what special technical 
 expression we are to describe the offense. 
 
 " Lord Chief-Justice Hale spendeth a whole chapter 
 on this point, which he intitleth, ' Concerning princi- 
 pals and Accessories in High Treason.' And though in 
 conformity to the established mode of speaking, .he 
 calleth every person who can any way be considered as 
 an accomplice in treason a principal in it ; yet when he 
 cometh to speak of the course and order to be observed 
 in the prosecution of the offenders, he considereth 
 those accomplices whose supposed guilt is connected 
 with and dependeth upon the real guilt of another in the 
 light of mere accessories ; and stateth a few cases by way 
 of illustration and proof. A person is committed to 
 prison for high treason, the jailer voluntarily suffereth 
 him to escape ; or a stranger knowing of such commit- 
 ment breaketh the prison and setteth him at large ; or 
 knowingly rescueth him after an arrest and before he is 
 brought to prison. In all these cases the jailer and 
 the person breaking prison or rescuing, whom he in a 
 passage I shall presently cite, calleth a kind of acces- 
 sories, are principals in treason, if the party imprisoned 
 were really a traitor. If he were not so, it will be no 
 treason in them ; and therefore they shall not be ar- 
 raigned till the principal offender be convicted ; for if 
 he be acquitted of the principal offense the others shall 
 be discharged. 
 
 " I have used the words knowing and knowingly, be- 
 cause I think that circumstance is a necessary ingredient
 
 ARGUMENT OF MR. WICKHAM. 647 
 
 in the case. It is true it was resolved in Benstead'scase 
 cited here by the learned author, and at page 141, but I 
 think, not \vith entire approbation of the rule, that the 
 party breaking prison would have been guilty of treason 
 though he had not known that traitors were there. I 
 am by no means satisfied with this opinion. For the 
 single authority upon which this point is said by Hale 
 to have been so ruled, doth by no means warrant it. 
 The book expressly stateth it, that the party did know 
 that traitors were there. And Brooke who abridgeth 
 the case is expressed to the same purpose : sciant que 
 traitors fueront en ceo. And Coke citing the same case 
 layeth a great stress on this circumstance, that the party 
 knew that traitors were there, and conducted them out 
 of prison. I have upon another occasion taken some 
 notice of this short and imperfect report of Benstead's 
 case, and observed that the prosecution against him ap- 
 peareth to have been carried on with uncommon expe- 
 dition, not to say with some degree of precipitancy. 
 And probably the forcing of prison doors, as many were 
 forced during the tumult, was given in evidence on his 
 trial, among other outrages of the night, as overt acts 
 of levying war, the species of treason for which he stood 
 indicted. 
 
 "The same rule of equity and natural justice the 
 learned judge in another place applieth to the case of 
 felonious escapes and rescues, and addeth, If the prin- 
 cipal offender be convicted and hath his clergy, ' I think 
 the jailer or rescuer shall never be put to answer the 
 escape or rescue, as the accessory where the principal 
 hath his clergy is thereby discharged, for the rescuer 
 and officer are a kind of accessories.' He calleth them 
 a kind of accessories, because there can be no felonious 
 escape or rescue where no felony had been previously 
 committed. But in strict legal propriety they are not 
 accessories to the original felony, for though a man 
 should be committed for many felonies, yet the escape 
 or rescue is considered as one single felony, and is so 
 charged. 
 
 " With regard to a person knowingly receiving and har- 
 boring a traitor, the learned judge in the place lately 
 cited argueth, that though he is in the eye of the law a
 
 648 TRIAL OF AARON BURR. 
 
 principal traitor and shall not be said to be an accessory, 
 yet thus much he partaketh of an accessory, his indict- 
 ment must be special of the receipt and not of the prin- 
 cipal treason. If he is indicted by a several indictment, 
 he shall not be tried till the principal be convicted ; if in 
 the same indictment with the principal, the jury must be 
 charged to inquire first of the principal offender, and if 
 they find him guilty, then of the receipt ; and if the 
 principal be not guilty, then to acquit both. For though 
 in the eye of the law they are both principals in 
 treason, yet in truth he (the receiver) is so far an ac- 
 cessory that he can not be guilty if the principal be inno- 
 cent. 
 
 " In tb;e case of Mrs. Lisle whose hard fate it was to 
 fall into the hands of perhaps the worst judge that ever 
 disgraced Westminster Hall, no regard was paid to this 
 doctrine. I would not be thought to mention this case 
 as an authority upon which a doubt can at this day be 
 possibly raised. I do it for the sake of what happened 
 afterwards, which I take to be an authority with me. 
 Her attainder was afterwards reversed in parliament ; and 
 the act reciteth among other hardships of her case, that 
 she was by an irregular and undue prosecution, indicted 
 for entertaining and concealing John Hicks a false trai- 
 tor knowing him to be such ; though the said Hicks was 
 not at the time of the trial attainted or convicted of any 
 such crime. 
 
 " The same learned author in other parts. of his work 
 argueth to the purpose for which I have already cited 
 him ; and applieth the same rule of equity to the case 
 of a person indicted for contriving, abetting, aiding, or 
 consenting to treason, which happeneth ne"ver to have 
 been carried into execution. 
 
 " But here we must distinguish, though the learned 
 judge speaking in general terms apposite to his present 
 purpose, doth not. For with regard to every instance 
 of incitement, consent, approbation, or previous abetment 
 in that species of treason which falleth under the branch 
 of the statute touching the compassing of the death of 
 the king, queen, or prince, every such treason is in its own 
 nature, independently of allother circumstances or events, 
 a complete overt act. of compassing ; though the fact or-
 
 ARGUMENT OF MR. W1CKHAM. 649 
 
 iginally in the contemplation of the parties should never 
 be effected nor so much as attempted. A. inciteth B. to 
 a treason of this kind ; B. in abhorrence of the crime, 
 and from a just sense of the duty which every man oweth 
 to his king and country, and which every good man in 
 the like circumstance will pay, maketh a discovery, by 
 means whereof A. is brought to justice. This incite- 
 ment on the part of A. is a complete overt act of treason 
 within this branch of the statute, and hath no sort of 
 connection with, or necessary dependence upon the fu- 
 ture behavior of B. And therefore whatever the learned 
 author hath advanced in general terms touching fruitless 
 ineffectual advice or incitement to treasonable practices, 
 must be understood of such treasons only as do not fall 
 within this branch of the statute." 
 
 In page 341, he states that an accomplice in treason, 
 though in the final issue he may be considered as a 
 principal, yet during the intermediate steps towards con- 
 viction, he ought to be considered merely as in the nature 
 of an accessory before or after the fact. In page 346 he 
 cites Lord Hale's opinion with approbation, except that 
 he properly distinguishes between treason, in compass- 
 ing the death of the king, and every other species of trea- 
 son ; as in the former the treason is complete in the very 
 act of conspiring. Now it will be admitted that a con- 
 spiracy to levy war is not in 'itself an act of treason. 
 Judge Foster then, as well as Lord Hale, is a direct au- 
 thority in favor of my position. 
 
 The same doctrine is laid down and illustrated by a 
 modern writer, who certainly is not of himself authority, 
 though he merits the name of an industrious and accu- 
 rate compiler, and who, from causes that might be con- 
 jectured, on all occasions, seems little inclined to relax 
 the severity of the law on the subject of treason. 
 
 Mr. East, in his treatise on Crown Law, chap. 2, 39, 
 p. 100, lays down with great clearness the same rule 
 of law, and expressly states, that proof of treason of 
 the agent can only be established by his conviction. 
 I shall cite what he saith though his words differ 
 but little from Hale and Foster. " But further, 
 with respect to the trial, the general rule that all are 
 principals in treason, must be understood with more lim-
 
 650 TRIAL OF AARON BURR. 
 
 itation. In regard to all acts of approbation, incitement, 
 advice, or procuring towards that species of treason, 
 which, in judgment of law, falls within the clause of com- 
 passing the king's death, or that of the queen or prince, 
 there is no doubt but that the party may be tried before 
 the person who acted upon such incitement ; because the 
 bare advising or encouraging to such actions is in itself 
 a complete overt act of compassing ; and it is totally im- 
 material whether the attempt were ever made or not. 
 The case of Somerville proves no more than this ; though 
 the rule is there laid down in general terms, that a per- 
 son aiding or procuring a treason may be tried before the 
 actor. But with regard to all other treasons within the 
 statute, 25 Edw. 3, if one advise or encourage another 
 to commit them, or furnish him means for that purpose, 
 in consequence whereof the fact is committed, the adviser 
 will indeed be a principal ; for such advice or assistance 
 would have made him an accessory before the fact in 
 felony : but if the other forbore to commit the act 
 thus advised, the adviser could not be a traitor merely on 
 account of his ineffectual advice and encouragement ; 
 though his conduct would be highly criminal : for it can 
 not be said that a person procured an offense which in 
 truth was never committed. In these cases therefore the 
 treason is of a derivative nature, and depends entirely 
 upon the question, whether the agent have or have not 
 been guilty of such treason ? the proof of which can only 
 be legally established by his conviction, if he continue 
 amenable to justice, or his attainder by outlawry, if he 
 abscond ; unless the accessory choose to waive the bene- 
 fit of the law, and submit to a trial. 
 
 " The same rule holds in case of assistance or protec- 
 tion to a traitor after the fact in all cases, or of permitting 
 or procuring his escape from custody. The party know- 
 ingly affording such protection or contributing to such 
 escape, if the treason have been in fact committed, will 
 be a principal traitor ; but the fact of the principal's guilt 
 must first be established, and notice of it must also ap- 
 pear to have been received by him who may be called 
 the accessory after. For it can not be said that a person 
 received or succored a traitor knowingly, that is, with a 
 knowledge of the treason's having been committed, when
 
 ARGUMENT OF MR. WICK HAM. 651 
 
 in truth either no such treason was committed by him, 
 or the receiver was altogether ignorant of it." 
 
 It will be observed that he too considers the case of an 
 accomplice before and after the fact, as being governed in 
 this respect precisely by the same rules. 
 
 It need only be remarked, that he considers the case 
 of Somerville (Anderson, 109) as being at first view against 
 the position, and endeavors to explain it. Now the case 
 of Somerville being an exception from the general rule 
 and so statedj according to the maxim exceptio probat 
 regulam, is directly in favor of "this doctrine; as the de- 
 cision in that case proceeded solely on the ground of the 
 indictment being for treason in compassing the death of 
 the king, which being in itself a complete act of treason, 
 was distinguishable from the other species of that offense. 
 The words are " car le procurement est un compasse-- 
 ment et imagination del mort le roy quel en soy mesme 
 est treason." 
 
 The prosecution is not against us as accessory to a 
 crime committed by another; the indictment informs us 
 that it is against ourselves not for an accessorial but a 
 principal treason committed by us in person ; and we 
 come to defend ourselves against that charge only. 
 
 The only doctrine in any of the books to the contrary, 
 is that of Sergeant Hawkins in book the 2d, ch, 27. sec. 2 
 p. 439, 440 (Leach's edition). " As to the first particular, 
 in what offenses there can be no accessories, but all must 
 be principals, if any way guilty, it seems to have been 
 always an uncontroverted maxim, that there can be no 
 accessories in high treason or trespass. Also it seems to 
 have been always agreed, that whatsoever will make a 
 man an accessory before in felony, will make him a prin 
 cipal in high treason and trespass, as battery, riot, rout, 
 forcible entry, and even in forgery and petit larceny. 
 And therefore wherever a man commands another to 
 commit a trespass, who afterwards commits it in pursu- 
 ance of such command, he seems by necessary conse- 
 quence to be as guilty of it as if he had done it himself. 
 From whence it follows, that being in judgment of law 
 a principal offender, he may be tried and found guilty 
 before any trial of the person who actually did the fact." 
 Now it is observable that this is only a general expres-
 
 652 TRIAL OF AARON BURR. 
 
 sion of the general rule, that he goes into no detail and 
 does not pretend to argue on the question. The doc- 
 trine is admitted to be correct so far as it applies to trea- 
 son in compassing the death of the king. The only differ- 
 ence between him and the authorities I have quoted, is 
 that he does not distinguish between this and the other 
 kinds of treason ; but he does not enter into the particu- 
 lar question whether derivative guilt can be proved other- 
 wise than by the conviction of the principal offender. 
 
 But if he were in direct opposition to them, he does 
 not stand on such high ground as they do ; the names of 
 Lord Hale and Justice Foster are certainly entitled to 
 much higher respect than his. Sergeant Hawkins, though 
 his work is a very valuable institute of criminal law, is 
 not considered a great constitutional lawyer. 
 
 He is not only opposed by Hale and Foster, but even 
 his own editor corrects this dictum in the later editions. 
 Mr. Leach, his very able and accurate Commentator, has 
 a note on this very passage, in which he corrects the 
 generality of the expression, and confines it to the case 
 of treason in compassing the death of the king. The 
 words of the note are " this rule requires distinction ; in 
 that species of treason touching the death of the king, &c., 
 every accessorial agency is, independently and in its own 
 nature, a complete overt act of compassing, and renders 
 the offender guilty though the fact itself should never 
 be attempted. But in every other species of treason, the 
 accessorial offense is of a derivative kind ; some act must 
 be done, to which act the offender must be accessory, and 
 out of which his guilt must spring before he can be con- 
 verted by this rule of law into a principal offender. It 
 seems, therefore, that though in the event of the posecu- 
 tion such an offender may be considered as a principal, yet, 
 in his progress towards conviction, he ought, from a 
 principle of natural justice, to be considered merely as 
 in the nature of an accessory, before or after the fact ; and 
 if under such a consideration he were tried, before the 
 person who actually did the fact, the absurdity might 
 follow, that the accessorial agent may be convicted, and 
 the principal who did the act, and on whose guilt the 
 offense of the accessory must alone depend, may be ac- 
 quitted."
 
 ARGUMENT OF MR. WICKHAM. 653 
 
 The authorities therefore all correspond; and, supported 
 as they are by the strongest reasons drawn from the rules 
 of common sense and natural justice, place the position 
 I have contended for beyond the reach of controversy. 
 
 But it is objected that no adjudged case can be pro- 
 duced in support of it ; it is a sufficient answer, that 
 there has never been an attempt, except in the case of 
 Lady Lisle, to charge an accessory in treason before the 
 principal. The counsel on the other side must rely on 
 that decision of Jefferies, or they must abandon the pros- 
 ecution ; and even that case is conclusive in our favor, 
 for judge Jefferies's sentence was annulled, and the at- 
 tainder reversed by act of parliament, expressing strong 
 disapprobation of his conduct. 
 
 I can not quit this point without remarking, that all 
 the authorities go upon the supposition that the indict- 
 ment must be special ; a point I already have insisted 
 upon. It is barely possible that an objection will be made 
 which may be thought to deserve an answer, that " the 
 accomplice may waive the benefit of the law, and submit 
 to a trial ;" and that as the accused has done so in the 
 present instance, the objection now comes too late. A 
 reference to the authorities and a moment's consideration 
 will satisfy the court that there can be no force in this 
 objection. 
 
 The indictment gives us no information of the nature 
 of the charge ; it is against Mr. Burr himself, who had no 
 reason to doubt that it was meant to be proved, that he 
 in person committed the overt act of treason in levying 
 war as a principal in the first degree. The charge, that 
 . the act was committed by him in conjuction with per- 
 sons unknown, excludes the idea of a derivative treason 
 or a responsibility for the act of any particular individual 
 or set of men. 
 
 But if it were specially charged, and the persons, 
 whose acts the accused was to answer for, were named 
 in the indictment, with every necessary description of 
 time, place and circumstances, the party going to trial 
 according to the course of the court, without a special 
 prayer to be tried before the principal, and an express 
 waiver of his right entered on record, could not be con- 
 cluded from taking this exception. The words, " waive
 
 654 TRIAL OF AARON BURR. 
 
 the benefit of the law," mean an express renunciation of 
 a right, and none such certainly has been made in the 
 present instance. 
 
 But admit that all these points are against us, still 
 there must be some legal proof adduced of the guilt of 
 the principal who committed the act, before the prisoner 
 can be made a traitor by relation. Admit that a person 
 may be generally charged as present, who was absent ; 
 that the record of the conviction of the principal is un- 
 necessary ; and that they are at liberty to prove the act 
 of the principal by mere parol testimony ; yet before Mr. 
 Burr can be connected with Blannerhassett, they must 
 prove an overt act to have been committed by Blanner- 
 hassett, and of this the court and not the jury must 
 judge ; that is, the court must judge what in law con- 
 stitutes an overt act of treason, though the jury only can 
 decide whether such an overt act have been in truth 
 committed or not. Admitting the correctness of the 
 statement of the only witness whose testimony bears 
 upon this point, Allbright (who is at one time in jest, at 
 another in earnest), yet still there is nothing like the sem- 
 blance of an act of war. Admitting further, for the sake 
 of argument, that what he states amounts to proof of an 
 overt act of war, yet still he is a solitary witness ; and 
 as the law requires two witnesses to prove the same 
 overt act of war, it is impossible to connect us with him. 
 Every inference, that can be rationally drawn from the 
 facts proved by this single witness, maybe drawn by the 
 jury; but this can not supersede the necessity of com- 
 plying with the constitutional requisition of proving the 
 overt act by two witnesses. 
 
 According to the universal doctrine of all authors on 
 this subject, the overt act which is to be thus proved, 
 must be an act of public hostility (not a mere private 
 act), and must be particularly set forth in the indictment. 
 The principle is maintained by writers and confirmed by 
 the form of the indictments. 
 
 I East's Crown Law, p. 116: "In every indictment 
 for high treason upon the stat. 25 Ed. 3, for compassing 
 the death of the king, or for levying war, or adhering to 
 his enemies, the particular species of treason must be 
 charged in the very terms of the statute, being a declara-
 
 I 
 
 ARGUMENT OF MR. WICKHAM. 655 
 
 tory law, as the substantial offense, and then some overt 
 act must be laid, as the means made use of to effectuate 
 the traitorous purpose." " The overt acts so laid are in 
 truth the charge to which the prisoner must apply his 
 defense. And therefore it is in no case sufficient to al- 
 lege, that the prisoner compassed the king's death, or 
 that he levied war against him, or adhered to his ene- 
 mies ; for upon a charge so general and indefinite, he 
 can not know what acts he is to defend." In page 121, 
 he states, however, " that the whole detail of the evidence 
 need not be set forth." " The rule, prescribed by the 
 statute of William, ' that no evidence shall be admitted 
 or given of an overt act that is not expressly laid in the 
 indictment," is in truth no more the common law itself 
 directs generally. For in no case is a prisoner bound to 
 answer unprepared for every action of his life, but only 
 to that which is the subject of the indictment against 
 him." The true sense of the clause is, " that no overt 
 act amounting to a distinct independent charge, though 
 falling under the same head of treason, shall be admitted 
 in evidence, unless it be expressly laid in the indictment ; 
 but an overt act may be given in evidence, though it be 
 not expressly laid or not well laid in the indictment, if 
 it amount to direct proof of any overt act, which is well 
 laid. Thus in the case of Rockwood.(p. 122), who was 
 indicted for compassing King William's death, two of the 
 overt acts charged were, that he and others met and con- 
 sulted upon the proper means for waylaying the king, 
 and attacking him in his coach ; and also that they 
 agreed to provide forty men for that purpose. Upon 
 this indictment the counsel for the crown were allowed 
 to give in evidence a list of the names of a small party 
 who were to join in the attempt, of which the prisoner 
 was to have the command, with his own name at the 
 head of the list as their commander ; for though not 
 charged in the indictment, yet it amounted to a direct 
 proof of the overt acts laid ,viz., the meeting and consult- 
 ing together how to kill the king, and then agreeing to 
 provide forty men for the purpose." The same doctrine 
 is laid down in p. 123, but in that page it is stated that 
 " if the overt acts, offered in evidence and not laid in the 
 indictment, be no direct proof of any of the overt acts
 
 656 TRIAL OF AARON BURR. 
 
 charged, but merely go to strengthen the evidence or 
 suspicion of some of those overt acts by a collateral cir- 
 cumstance, such evidence can not be admitted, notwith- 
 standing the opinion of Lord Hale to the contrary, as 
 in the case of Captain Vaughan, before cited." And Fos- 
 ter, in p. 194, states the same doctrine, that the overt act 
 must be laid in the indictment : " In every indictment 
 for this species of treason, and indeed for levying war, 
 or adhering to the king's enemies, an overt act must be 
 alleged and proved. For the overt act is the charge to 
 which the prisoner must apply his d'efense, and if divers 
 overt acts be laid and but one proved, it will be suffi- 
 cient." The object of charging the overt act is to give 
 the accused full notice to come prepared to answer it. 
 
 Here Mr. Wickham observed, that as the usual hour of 
 adjournment was now past, he could not finish his argu- 
 ment to-day, but wished to be indulged with permission 
 to resume it to-morrow, which was granted ; and the 
 court adjourned. 
 
 FRIDAY, AUGUST 2ist, 1807. 
 
 As soon as the court met, Mr. Wickham observed that 
 he would by no means wish to take up the time of the 
 court unnecessarily ; but that it might not be improper 
 briefly to advert to some parts of his argument yester- 
 day. He then proceeded : The court will recollect the 
 several points which I endeavored to established yester- 
 day. The first was founded on the absence of the accused 
 from the scene of action, at the time of committing the 
 act charged in the indictment ; and the second on the 
 necessity of proving the act as laid. The third point 
 was, that the guilt of the accused, if it exist at all, is in 
 its nature only derivative, and can not be proved without 
 first producing the record of the conviction of the princi- 
 pal. 
 
 Hawkins, in his Pleas of the Crown, ch. 29, 2, p. 440, 
 as I stated before, is the only authority which says that 
 the accessory may be tried before the principal ; and his 
 commentator Leach denies it, in his note subjoined. 
 
 The rules of law require that the prosecutor, before 
 he can convict the accessory, must produce on his trial
 
 ARGUMENT OF MR. WICK HAM. 657 
 
 the record of the conviction of the principal. Foster 
 supposes that the production of that record is sufficient 
 to put the accused on his defense. But he admits that 
 it is no more. Hawkins says that such evidence is only i 
 introductory to other testimony, which is necessary to' 
 connect him with the principal. 
 
 The court will observe that Foster lays down the doc- 
 trine with great clearness, that the conviction of the 
 principal is necessary to be produced in order to put him 
 on his defense ; but that the accessory may prove that 
 the principal is innocent, notwithstanding the production 
 of the record of such conviction. In pp. 364-365, he 
 says that " the accessory may be brought to justice, not- 
 withstanding the principal has been admitted to the clergy 
 or pardoned ; and very proper was this provision. For 
 in the scale of sound sense and substantial justice, the 
 only questions in which the accessory can have any con- 
 cern, in common with the principal, are, whether the fel- 
 ony were committed, and committed by the principal. 
 These facts the conviction of the principal hath estab- 
 lished with certainty, at least sufficient to put the acces- 
 sory to his answer. And therefore in whatever manner 
 the principal may have been treated after his conviction, 
 seemeth to me to be a matter perfectly foreign to the 
 question, whether or when the accessory shall be brought 
 upon his trial." Sec. 3, " At a conference among the 
 judges upon the case of M'Daniel and others before re- 
 ported, a general question was moved how far, and in 
 \vh.it cases the accessory may avail himself of the insuffi- 
 ciency of the evidence in point of fact, or of the incom- 
 petency of witnesses in point of law, produced against 
 the principal, and in what cases he may be let in to show 
 that the facts charged and proved against the principal, 
 do not in judgment of law amount to felony. There was 
 in that case no occasion to enter far into these questions 
 since the facts, upon which the point of law then under 
 consideration must necessarily turn, were all found by 
 the special verdict." P. 365, '' If the principal and ac- 
 cessory are joined in one indictment and tried together, 
 which I conceive to be the most eligible course, where 
 both are answerable, there is no room to doubt whether 
 the accessory may not enter into the full defense of the 
 
 L 42
 
 658 TRIAL OF AARON BURR 
 
 principal, and avail himself of every matter of fact, and 
 every point of law tending to his acquittal. For the acces- 
 sory is in this case to be considered as particeps in lite, 
 and this sort of defense necessarily and directly tendeth 
 to his own acquittal. When the accessory is brought to 
 his trial, after the conviction of the principal, it is not 
 necessary to enter into a detail of the evidence on which 
 the conviction was founded ; nor doth the indictment 
 aver that the principal was in fact guilty. It is sufficient 
 if it recitieth with proper certainty the record of the con- 
 viction. This is evidence against the accessory sufficient 
 to put him upon his defense. For it is founded on a 
 legal presumption, that everything in the former pro- 
 ceeding was rightly and properly transacted. But a pre- 
 sumption of this kind must, I conceive, give way to facts 
 manifestly and clearly proved. As against the accessory 
 the conviction of the principal will not be conclusive: it 
 is, as to him, res inter alias acta. And therefore if it shall 
 come out in evidence, upon the trial of the accessory, as 
 it sometimes hath, and frequently may, that the offense 
 of which the principal was convicted did not amount to 
 felony in him, or not to that species of felony with which 
 he was charged, the accessory may avail himself of this, 
 and ought to be acquitted." Hawkins, p. 456, b. 2, c. 29, 
 47, says: " As to the fourth point, whether the princi- 
 pal and accessory may be both tried by the same inquest, 
 and in what manner they are to be tried. It seems to be 
 settled at this day, that if the principal and accessory 
 appear together and the principal plead the general issue, 
 the accessory shall be put to plead also ; and that if he 
 likewise plead the general issue, both may be tried by 
 one inquest ; but that the principal must be first con- 
 victed ; and that the jury shall be charged, that if they 
 find the principal not guilty, they shall find the ac- 
 cessory not guilty. But it seems agreed that if the prin- 
 cipal plead a plea in bar, or to the writ, the accessory 
 shall not be driven to answer, till such plea be deter- 
 mined." In the note subjoined, the foregoing authority 
 of Foster and Smith's case, O. B. 1784, p. 69, are referred 
 to ; and the sentiment repeated that the production of 
 the record of conviction of the principal, is sufficient to 
 put the accessory upon his defense.
 
 ARGUMENT OF MR. WICKHAM. 659 
 
 So that it is perfectly clear, from 'all the authorities, 
 that the first step is to produce the record of the con- 
 viction of the principal to put the accessory on his de- 
 fense, though it is not conclusive against him. 
 
 I hope to be excused for having taken up the time of 
 the court so long on this part of the subject. I will now 
 proceed to make some remarks on another point. 
 
 If it be possible that I am wrong in this last point, as well 
 as in the several other positions I have endeavored to 
 support; if an absentee can be convicted on this general 
 form of indictment, and if the record of the conviction of 
 the principal be not necessary, and parol testimony be 
 admissible to 'prove the acts of the accused, yet still I 
 contend, that before Mr. Burr can be put on his defense 
 or testimony exhibited to show his derivative guilt, there 
 must be some evidence to prove to the court that Blan- 
 nerhassett, the principal offender, is guilty. If there be 
 no evidence against Blannerhassett, none can be ad- 
 mitted against Mr. Burr. Let us suppose that there 
 was no proof whatever of the guilt of Blannerhassett, 
 would it be competent to them to say that he was guilty, 
 and to connect Mr. Burr with him ? to say that his 
 guilt was derivative, when there was no original source 
 from which it could be derived ? I presume that the 
 gentlemen would give up the point if there were no such 
 proof. It would be the same thing as if there were no 
 evidence at all against the accused, for it would have no 
 relation to the charge exhibited against him. 
 
 If there were evidence of a merely friendly meeting, it 
 would be the same as if there were no assemblage. If 
 they were to give evidence that Blannerhassett and 
 some of those with him were in possession of arms, 
 as people in this country usually are, it would not be 
 sufficient of itself to prove that the meeting was mil- 
 itary. 
 
 Arms are not necessarily military weapons. Rifles, 
 shot guns, and fowling pieces are used commonly by the 
 people of this country in hunting and for domestic pur- 
 poses ; they are generally in the habit of pursuing game. 
 In the upper country every man has a gun ; a majority 
 of the people have guns everywhere, for peaceful pur- 
 poses. Rifles and shot guns are no more evidence of
 
 660 TRIAL OF AARON BURR. 
 
 military weapons then pistols or dirks used for personal 
 defense, or common fowling pieces kept for the amuse- 
 ment of taking game. It is lawful for every man in this 
 country to keep such weapons. In England indeed 
 every man is not qualified to keep a gun ; but even to 
 those who have not that privilege the possession of dirks 
 and pistols is not unlawful, Surely their possession at 
 that island of such arms as every man in this country is 
 legally authorized to keep, and which most people do 
 keep, can be no more evidence of a military project, or 
 an intention to subvert the government, then if they had 
 not been there at all. What is the rule to distinguish in 
 such cases? There must be such evidence of a hostile 
 assemblage proved to the court, as if true in point of 
 fact- would constitute a treasonable assemblage. 
 
 But it may be said on the other side, that if the court 
 will undertake to judge in this case, it will invade the 
 province of the jury. Sir, it will not. It is the right of 
 the jury to decide on the weight of the evidence. They are 
 to find facts. They may find a special verdict, and if all 
 facts be inferred by them that can be properly inferred 
 from the evidence, and are found by them, the court can 
 decide on their finding. If they do not find facts to 
 that extent, the court is bound to infer whatever may be 
 legally inferred from their finding. The overt act must 
 be particularly set forth in the indictment. It is clear 
 on principle, and supported by a number of authorities, 
 as the case of Deacon and several others, which have 
 been referred to, that after the overt act laid is once 
 proved, evidence of other overt acts not laid, may be ad- 
 duced if they be direct evidence of that which is charged ; 
 but it is a perliminary and essential point, that two wit- 
 nesses must prove the overt act. 
 
 The principle for which I am contending is the same 
 in civil cases. If A make a contract with C by B, be- 
 fore A can enforce his contract against C, or give proof 
 of it as made by B, he must prove that B was in fact his 
 agent ; and then he can go on and prove the agreement, 
 but not before the agency, without proving which, it 
 would be irrelevant and improper to prove the agree- x 
 ment. The court would require the production of this 
 previous proof of his agency ; yet the court does not de-
 
 ARGUMENT OF MR. WICKHAM. 661 
 
 cide on the weight of such evidence. This principle is 
 further illustrated by the right, which the party pos- 
 sesses, to require a special verdict, and by his right also 
 to demur to the evidence, and draw the case from the 
 jury to the court. But he subjects himself to this con- 
 dition, that every inference which the jury might draw, 
 the court must draw. I do not mean to say that the 
 jury may wander into the field of conjecture, and that 
 the court may do so also, when the facts are thus re- 
 ferred to it ; but that of every inference which the jury 
 might draw according to sound reason and law, the court 
 must necessarily judge, and give the party the full bene- 
 fit of it. 
 
 Here I may properly refer to the same authority in Haw- 
 kins, p. 456, in the note of his commentator, where after 
 stating the necessity of producing against the accessory 
 the record of the conviction of the principal, he adds, 
 " but it seems that some additional evidence is necessary 
 for that purpose, in order to apply and connect it with 
 the case of a prisoner indicted as accessory ; for a bare 
 unqualified record can only be evidence against those 
 who are parties to it." 
 
 I come now to a most important inquiry, what con- 
 stitues an overt act of "levying war;" which must be 
 proved before the guilt of treason can attach to the prin- 
 cipal. 
 
 The CHIEF JUSTICE asked him if any adjudged case 
 could be produced, where the court was called upon to 
 decide, and did decide, that the evidence submitted to 
 the jury did or did not amount to proof of the overt act. 
 Mr. Hay said that he never knew the attempt made 
 but once, before Judge Patterson, which was unsuc- 
 cessful. 
 
 Mr. Wickham. The overt acts must be such as if 
 true that is, in reality committed constitute treason. I 
 do not say that the court will undertake entirely to per- 
 form what is the province of the jury, and proceed to in- 
 quire whether an overt act have been proved to have been 
 committed, but that it is the right and duty of the court to 
 instruct the jury what amounts in law to an overt act of 
 levying war, &c. The counsel for the United States has 
 undertaken to give a definition to the jury of an act of
 
 662 TRIAL OF AARON BURR. 
 
 treason in " levying war." The position taken by them- 
 selves, as stated in a a newspaper now in my hand [here 
 he read a passage from it] we mean to controvert. We 
 have a right to oppose gentlemen on the ground taken 
 by themselves. I deny the correctness of his definition. 
 When we differ as to the law, the court must decide 
 between us. The real meaning of his definition is that 
 a mere assemblage of men, without force, but met with 
 treasonable intention, constitutes a complete act of levy- 
 ing war. On this ground the most peaceable meeting, 
 if with treasonable designs, might be said to levy war. 
 
 Mr. Hay denied that his definition was accurately 
 stated ; he meant to rely on the definition given by the 
 supreme court of the United States, to which he re- 
 ferred. The gentleman did not understand me, said Mr. 
 Hay, as I meant to be understood, and as this must be 
 ovious, he ought to have the candor to admit it. The 
 great object of my argument was, to show that an assem- 
 blage of men, convened for the purpose of effecting by 
 force a treasonable object, and which force is meant to 
 be employed before their dispersion, is an overt act of 
 levying war against the United States. I appeal to you 
 and the gentlemen themselves, if this were not the sum 
 and substance of my argument. I took the ground that 
 the force to be employed was meant to be employed 
 before the separation of the party ; because if it were 
 a part of their design to disperse and meet at another 
 time and place, for the purpose of carrying the design 
 into effect, it would be only a conspiracy to levy war, 
 and not an act of levying war itself. It is easy to at- 
 tempt to bring an argument into ridicule. I have no 
 objection to his doing so ; but he is bound to show the 
 precise words which I did express, and not to impute to 
 me terms which I never used or arguments which I 
 should have disdained to employ. 
 
 Here a desultory discussion ensued between the coun- 
 sel on this point, when the chief justice observed that 
 he understood four distinct propositions to be stated to 
 the court (which he repeated), every one of which was 
 independent of every other ; and the last proposition he 
 considered to be, that if the record of the conviction of 
 him who is alleged to be the principal were not necessary
 
 ARGUMENT OF MR. WICKHAM. 663 
 
 to be produced, parol evidence was admissible; yet the 
 act itself, which was charged to have been committed, 
 must be proved. 
 
 Mr. Wickham expressed his regret, that he was misun- 
 derstood ; that as to ridicule, he meant no such thing. 
 He admitted that it was not always, though it was'some- 
 times, the test of truth ; and though he might have been 
 justified by the example of others in using it, he had 
 then no such intention ; but he insisted that what the 
 gentleman denied was substantially what he contended 
 for. For, said Mr. Wickham, the only objection which 
 he makes to my construction of his definition is this, that 
 I did not state that the purpose was to be effected before 
 the separation of the party ; that is, that they must exe- 
 cute it on the spot, which involves locality. This is but 
 a small deviation, and can make no essential difference 
 in the offense; but how is it possible to establish by sat- 
 isfactory evidence, that a number of men intend to act 
 before any separation ? But he relies on the decision of 
 the supreme court; and he dignifies the meeting on 
 Blannerhassett's island with the name of an assemblage 
 of men convened to effect a treasonable purpose ; and 
 this assemblage without force, because convened with an 
 intention to use force thereafter, he says, is sufficient to 
 constitute an act of " levying war," within the true mean- 
 ing of the decision of the supreme court. Though some 
 parts of the opinion of the supreme court may be ex- 
 pressed too vaguely, yet if attentively considered through- 
 out, it can not justify the construction which that gen- 
 tleman thinks proper to put on it. It may indeed be 
 deemed marvellous, that gentlemen who ought to com- 
 prehend it do not. Part of that opinion is stated and 
 relied on ; but not the whole. When duly and fully con- 
 sidered it will be found to be what has always been con- 
 sidered to be the law in England. Part of this decision 
 is in these words: "It is not the intention of the court 
 to say, that no individual can be guilty of this crime, who 
 has not appeared in arms against his country ; on the 
 contrary, if the war be actually levied, that is, if a body 
 of men be actually assembled for the purpose of effecting 
 by force a treasonable purpose, all those who perform 
 any part, however minute, or however remote from the
 
 664 TRIAL OF AARON BURR. 
 
 scene of action, and who are actually leagued in the gen- 
 eral conspiracy, are to be considered as traitors. But 
 there must be an actual assembling of men, for the trea- 
 sonable purpose to constitute a levying of war." It must 
 be evident even to the gentlemen on the other side, that 
 to cornplete the definition of treason to be found in this 
 opinion, the whole doctrine therein stated should be ex- 
 amined ; yet it seems as if he thought that we were to 
 look no further than this clause for the definition of trea- 
 son. If he had looked at the next paragraph, it would 
 have shown him the contraiy : " To complete the crime 
 of levying war against the United States, there must be 
 an actual assemblage of men for the purpose of executing 
 a treasonable design. In the case now before the court 
 a design to overturn the goverment of the United States 
 at New Orleans, by force, would have been unquestion- 
 ably a design, which if carried into execution, would 
 have been, treason. And the assemblage of a body of 
 men, for the purpose of carrying it into execution, would 
 amount to levying of war against the United States ; but 
 no conspiracy for this object, no enlisting of men to effect 
 it, would be an actual levying of war. In conformity 
 with the principles now laid down, have been the decisions 
 heretofore made by the judges of the United States." 
 
 " The opinions given by Judge Patterson and Judge 
 Iredell, in cases before them, imply an actual assembling 
 of men, though they rather designed to remark on the 
 purpose to which the force was to be applied, than on 
 the nature of the force itself. Their opinions, however, 
 contemplate the actual employment of force." " Judge 
 Chase in the trial of Fries was more explicit. He stated 
 the opinion of the court to be, 'that if a body of people 
 conspire and meditate an insurrection to resist or oppose 
 the execution of any statute of the United States by 
 force, they are only guilty of a high misdemeanor; but 
 if they proceed to carry such intention into execution by 
 force, that they are guilty of the treason of levying war ; 
 and'the quantum of the force employed neither lessens 
 nor increases the crime ; whether by one hundred or one 
 thousand persons is wholly immaterial. The court are 
 of opinion (continued Judge Chase, on that occasion) 
 that a combination or conspiracy to levy war against the
 
 ARGUMENT OF MR. W1CKHAM. 665 
 
 United States, is not treason, unless combined with an 
 attempt to carry such combination or conspiracy into 
 execution ; some actual force or violence must be used 
 in pursuance of such design to levy war, but it is alto- 
 gether immaterial whether the force used is sufficient to 
 effectuate the object ; any force, connected with the in- 
 tention, will constitute the crime of levying war.' ' The 
 opinions of these three judges are stated to be law ; and 
 all three declare some force to be actually necessary. Is 
 it not very plain from all these parts taken together, that 
 wherever the supreme court speak of any body of men 
 assembled for the purpose of effecting by force a treason- 
 able purpose, they mean that the force of which they 
 speak must be actually* used in order to make it treason ? 
 Is not one part of their opinion to be construed with and 
 explained by another ? In construing it, are gentlemen 
 at liberty to take one part and reject another which 
 qualifies it ? 
 
 I should think no other argument would be necessary 
 to show this ; but I will refer to your own opinion on the 
 commitment of Mr. Burr ; you said on that occasion, that 
 " an intention to commit treason is an offense entirely 
 distinct from the actual commission of that crime. War 
 can only be levied by the employment of actual force ; 
 troops must be embodied, men must be assembled in 
 order to levy war." Again you stated, that " to consti- 
 tute this crime, troops must be embodied, men must be 
 actually assembled ; and these are facts which can not 
 remain invisible. Treason may be machinated in secret, 
 but it can be perpetrated only in open day, and in the 
 eye of the world. Testimony of a fact, which in its own 
 nature is so notorious, ought to be unequivocal." 
 
 The act of levying war must therefore be an act of 
 force and of public notoriety exhibited before the world. 
 Compare your own opinion with the picture which the 
 gentleman has chosen to draw, and see how dissimilar 
 they are. 
 
 We are then told of the opinion and admissions of 
 Fries' counsel on his trial in Pennsylvania ; and an eulogism 
 is passed on that counsel (Mr. Lewis) on account of that 
 supposed opinion. The opinion of counsel is no author- 
 ity, however unequivocally expressed. But if we are to
 
 066 TRIAL OF AARON BURR. 
 
 refer to the opinion of counsel, let us refer in like man- 
 ner to that of the counsel for the prosecution. Mr. 
 Ravvle is equally as respectable as Mr. Lewis. In Fries' 
 trial, p. 179, Mr. Rawle conceived himself authorized 
 upon good authority to say, " that levying war did not 
 only consist in open, manifest, and avowed rebellion 
 against the government, with a design of overthrowing 
 the constitution ; but it may consist in assembling to- 
 gether in numbers and by actual force, or by terror, 
 opposing any particular law or laws. There can be no 
 distinction as to the kind or nature of the laws, or the 
 particular object for which the law was passed, since all 
 are alike the acts of the legislature who are sent by the 
 people at large to express their will." 
 
 " Force need not be used to manifest this spirit of re- 
 bellion ; nor is it necessary that the attempt should have 
 been successful, to constitute the crime. The endeavor 
 by intimidation to do the act, whether it be accomplished 
 or not, amounts to treason, provided the object of those 
 concerned in the transaction is of a general nature, and 
 not applied to a special or private purpose." The 
 attempt to effect the purpose by terror is sufficient. I will 
 refer to the case put by the gentleman himself by way 
 of illustration, that if an assemblage of men were to march 
 unarmed into this town for the purpose of attacking the 
 capitol, and in such immense numbers as to render all 
 resistance vain and ineffectual, and no resistance were 
 therefore made, their object would be effected by terror 
 and imaginary alarm. Their numbers, in that case, would 
 supply the want of arms. The only difference is between 
 actual and potential force ; and in that case, there would 
 be potential force sufficient to effect their object. 
 
 In Fries' case, he came forward with an armed multi- 
 tude. He employed force as well as terror, to break 
 prisons, to rescue prisoners, and to oppose the operation 
 of the laws of his country. 
 
 The opinion of Mr. Sitgreaves, the other respectable 
 counsel of the United States, is still more explicit on this 
 subject. In p. 19 of that trial, he says, that " if the ar- 
 rangements are made, and the numbers of armed men 
 actually appear, so as to procure the object which they 
 have in view, by intimidation as well as by actual force,
 
 ARGUMENT OF MR. WICK HAM. 66 7 
 
 that will constitute the offense." In p. 20, he says: " It 
 must be war waged against the United States. This is 
 an important distinction. A large assemblage of people 
 may come together, in whatever numbers, however they 
 may be armed or arrayed, or whatever degree of violence 
 they may commit, yet that alone would not constitute 
 treason ; the treason must be known ; it must be for a 
 public and not a private revenge; it must be avowedly 
 levying war against the United States. If people assem- 
 ble in this hostile manner, only to gratify revenge, or any 
 other purpose independent of war against the United 
 States, it will only amount to a riot ; but if it is an object 
 in which the persons have no particular interest, this con- 
 stitutes the offense of treason." With respect to the 
 definition of Foster, I will not take up the time of the 
 court by detailing it fully, or repeating what may have 
 been already quoted. Suffice it to say, that he considers 
 it a fixed principle, that there must be actual violence or 
 hostility, and that the overt acts must be public acts. 
 In p. 2 II, after mentioning several specific instances of 
 treasonable acts, he adds, that " all risings to effect these 
 innovations of a public and general concern by an armed 
 force, are in construction of law, high treason, within the 
 clause of levying war ; " and he gives one principal rea- 
 son, " that they have a direct tendency to dissolve all 
 the bonds of society and to destroy all property and all 
 government too, by numbers and an armed force." And 
 likewise that " insurrections for redressing national griev- 
 ances," " or the reformation of real or imaginary evils 
 of a public nature, and in which the insurgents have no 
 special interest ; risings to effect these ends by force and 
 numbers are by construction of law within the clause of 
 levying war." In short, all the English precedents show 
 that the overt acts are cases of actual hostility of a public 
 nature. 
 
 Vaughan's case in 5 State Trials, p. 37, may be consi- 
 dered as the strongest on this point. He had a commis- 
 sion from the French king, to cruise in the vessel or barge 
 called the Loyal Glencarty, against the subjects of Eng- 
 land. He commanded this vessel under French colors, 
 and met an English ship of superior force, and struck his 
 colors without a battle or making any resistance. The
 
 668 TRIAL OF AARON BURR. 
 
 court will observe, that in the indictment against Vaughan 
 there were two counts, one for levying war, and the other 
 for adhering to the king's enemies and aiding and assist- 
 ing them. Mr. Phipps, the prisoner's counsel, objected 
 that there was no overt act of war proved against him, 
 because there was no act of hostility. But this objection 
 was overruled, and he was found guilty of adhering to 
 the king's enemies, and aiding and assisting them, and it 
 was determined that actual war must be proved under an 
 indictment for levying war. The opinion of the chief 
 justice was as follows : " When men form themselves into a 
 body, and march rank and file, with weapons offensive and 
 defensive, this is levying war with open force, if the design 
 be public." " When a ship is armed with guns, &c., and 
 doth appear on the coast watching an opportunity to 
 burn the king's ships in the harbor, and their design 
 known, and one goes to them, and aids and assists them, 
 this is an adhering to the king's enemies. Here are two 
 indictments, one for levying war and the other for adher- 
 ing to the king's enemies ; but the adhering to the king's 
 enemies is principally insisted on : and there must be an 
 actual war proved upon the person indicted in the one, 
 yet not to be proved in the other case." The cpurt 
 observed that the prisoner's counsel would make no 
 act to be " aiding and assisting," but fighting, which was 
 wrong ; that they were armed and had surrounded the 
 ship twice, and nothing prevented his making an attack, 
 but the superiority of the ship by which he was taken. 
 They were afraid to proceed on the count which was 
 charged the levying war, because public war and open 
 hostility must be proved to support it ; they went there- 
 fore on the other, for adhering to, and aiding the king's 
 enemies. 
 
 On further consideration, I admit that perhaps the 
 word " public " need not be inserted "in the indictment. 
 In the English precedents, and also in the first indict- 
 ment against John Fries, this word " public " is used ; but 
 I find that in the subsequent indictment against Fries, it is 
 omitted. I should only rely on the general usage being 
 an evidence of the law. 
 
 But what did the gentleman say in defining the " levy- 
 ing of war " ? that there is no necessity for arms, nor
 
 ARGUMENT OF MR. WICK HAM. 669 
 
 the employment of force ! that there is no necessity even 
 for potential force to effect the intended purpose by ter- 
 ror ! that there is no necessity for the act to be public ! 
 that an overt act of treason may be committed without 
 arms, without force, either actual or potential! If this 
 were law, there would be no safety. We know, however, 
 that a man may conceive a criminal intention, but that 
 the law does not punish it, unless carried into execution. 
 But the gentlemen takes away the " locus pcenitentice" 
 Men might be misled from their duty as citizens, and 
 induced to agree to resist the government and levy war, 
 but before they proceeded to action might repent, from 
 prudential or patriotic motives ; but according to the 
 doctrine of the gentlemen on the other side, they could 
 not retract. The intention once formed, though without 
 reflection, and though soon followed, after deliberation, by 
 sincere repentance, would be as severely punishable as the 
 actual execution of the treasonable design. A man who 
 had agreed to join in a treasonable project, but repented 
 and never joined the party, would be punishable as highly 
 as the traitors who actually perpetrated the crime. This 
 doctrine can never be correct. 
 
 He introduces another point to which I slightly ad- 
 verted before. After having taken away every induce- 
 ment to repentance and reformation, he rests the inno- 
 cence or criminality of the accused on their intention-to 
 separate or not, before the accomplishment of their 
 purpose. What would the gentleman call separation ? 
 Perhaps no two individuals have the same idea on this 
 subject. Such an indefinite, vague, indeterminate idea of 
 what would constitute guilt opens a door to constructive 
 treason, and is dangerous in the extreme. This defini- 
 tion fits no case but this case, and must have been inten- 
 ded to fit it ; it is the more alarming, as it may put the 
 safety of any individual in the power of the government ; 
 but I hope it will be disclaimed. It has never been heard 
 of before, and I trust in God it never will be heard of 
 in this country again. 
 
 I will now make some few observations on the testi- 
 mony, from which it will be seen that there was no hos- 
 tility of any kind committed. In the evidence of the 
 first witness, who was examined as to the transactions on
 
 670 TRIAL OF AARON BURR. 
 
 the island (Peter Taylor, the gardener), there is not one 
 expression that gives the remotest idea of a treasonable 
 assemblage. He saw a few men and four or five rifles, 
 which were perfectly innocent; but what is more won- 
 derful, he saw some bullets run ! There is no impropriety 
 in running bullets, if the object be not criminal ; the 
 rifles were of no sort of service without the bullets; but 
 they had a little powder ! Of what use would their bul- 
 lets be without powder ? The quantity of each was so 
 very limited as to answer no other than innocent pur- 
 poses. He saw no military array or parade ; he saw no 
 improper act, nothing that could be justly construed to 
 be criminal or unlawful in their conduct. He says that 
 he saw Mr. Woodbridge in the night down with Blan- 
 nerhassett's party at the landing; but Mr. Woodbridge 
 denies it. What does another of their own witnesses, 
 Mr. Love, say? He says they were frightened at the 
 proclamation ; but he saw no military parade whatever, 
 nothing like hostility ; that they were afraid of the mob 
 who were about to pull down Blannerhassett's house. 
 Has the government a right to pull down houses? 
 
 " But they were prepared to defend themselves." Had 
 they not a right to do so ? As the witness said, if a man 
 struck him a blow on the face, he had a right to return 
 it. Mr. Woodbridge saw no military array or hostility, 
 nothing criminal, turbulent, tumultuous, or disorderly in 
 their conduct ; he saw nothing more than was peaceful, 
 and ordinary, and natural on such an occasion. 
 
 Here Mr. Hay expressed a hope that the court would 
 excuse him for interrupting the gentleman. He asked 
 if it were not absurd to argue on one half of the testi- 
 mony? He declared that they had several other wit- 
 nesses who would prove the character of the acts on the 
 island ; and that the intention of the party was to 
 take possession of New Orleans ; that he never knew a 
 criminal prosecution interrupted in this way ; only one 
 half of the evidence commented on to the court, before 
 the other half was submitted to the jury. 
 
 Here a desultory discussion took place. Mr. Burr 
 and his counsel contended, that they had distinctly under- 
 stood that the counsel for the prosecution had gone 
 through or produced all their testimony relative to what
 
 ARGUMENT OF MR. WICKHAM. 671 
 
 was deemed the overt act, or the transaction on Blanner- 
 hassett's island ; that they had called on them to adduce 
 more evidence on that point if they could ; that they had 
 answered that they had only one or two more witnesses 
 whose evidence was to the same effect as that of the 
 others who had already been examined ; and that as 
 they happened to be then absent, it was clearly under- 
 stood they were at liberty to proceed to state their pro- 
 positions to the court ; and Mr. Burr added, that it was 
 his desire that everything relative to what they called 
 war should be first proved ; that he had permitted many 
 things which were extremely improper to be brought 
 forward, without objecting to them, as he wished every- 
 thing that regarded that point to be proved ; that he 
 urged them to prove an overt act, but that it could not 
 be proved. He desired to avail himself of the opportu- 
 nity of showing the defect of evidence and the futility of 
 the 'prosecution ; and that it was expressly declared by 
 the counsel for the prosecution, that they had examined 
 all their witnesses, except as before stated. 
 
 Mr. Hay insisted that gentlemen were mistaken in 
 their supposition that there was to be no other evidence ; 
 that he had expressly told the court and them, that it 
 was not admitted that there was no other evidence oft 
 this subject ; that they had no right to say that it was 
 admitted, or to assume as a fact that there was no other 
 evidence; that he had other testimony, and wished to 
 prove the connection between those who were on the 
 island, and those who went down to Cumberland river, and 
 were, proceeding down the Mississippi under the com- 
 mand of the accused ; that for the purpose of more clear- 
 ly showing this connection, all the testimony bearing 
 upon the subject should be examined and considered 
 together ; that he could not discern what could warrant 
 such an extraordinary motion as this was, to exclude evi- 
 dence, on a supposition that there was no other testimony 
 on a particular point in the cause. 
 
 Chief Justice. I understood, and it was certainly so 
 expressed, that the testimony relating to the transactions 
 on Blannerhassett's island had been gone through, but 
 that there was other evidence with respect to the inten- 
 tion, to show the character and nature of the assemblage ;
 
 672 TRIAL OF AARON BURR. 
 
 and it is contended on the other side that you have no 
 right to introduce such other evidence. I do not con- 
 ceive the motion to be irregular. So far as it is a per- 
 sonal inconvenience to hear a lengthy discussion, I re- 
 gret it, for the sake of others who are affected by it ; 
 but the court feels it to be a duty which it must patient- 
 ly and cheerfully perform. Every legal proposition 
 which is made the court is bound to listen to, as well as 
 to reflect on and determine according to its best skill and 
 judgment. You mean to connect the transactions on 
 Blannerhassett's island with evidence of extrinsic cir- 
 cumstances drawn from other sources. But I understood 
 you to state most explicitly, that as far as related to the 
 character of the transactions on Blannerhassett's island, 
 you had examined all your witnesses. I do not under- 
 take to say that it is proper or improper to admit this 
 other evidence which is sought to be excluded. The 
 counsel for the defense say, that having completed your 
 evidence as to what happened on the island, you can not 
 connect that testimony against the accused with proof 
 of opinions and intentions, and such extrinsic circum- 
 stances happening out of the district as you desire to 
 adduce. Their arguments may be very unsound, and if 
 you think so, you have a right to show it ; but to say 
 that they have no right to advance them, is more than 
 the court can undertake. 
 
 Mr. Hay said that his object was to show what his judg- 
 ment deemed the impropriety of the course which gen- 
 tlemen had adopted ; that he had not been distinctly un- 
 derstood ; but that as he did not wish to take up the 
 time of the court, he had no objection to their going on 
 with their observations. 
 
 Mr. Wickham then resumed his argument. The coun- 
 sel on the other side having proved every circumstance 
 they could, relative to the overt act, it does not appear 
 on the face of it, that what occurred on the island 
 amouted to an act of " levying war." Their declara- 
 tions relative to the quo animo are irrelevant, and must 
 be confined to the assemblage itself. An intention to 
 commit treason is not treason itself. In supporting the 
 proposition that the act of levying war must be proved 
 to have been committed by the principal before the ac-
 
 ARGUMENT OF MR. WICK HAM. 673 
 
 cessory can be affected by it, I am under the necessity of 
 speaking of the testimony; how can I otherwise do it? 
 
 Woodbridge saw no improper act, no hostility. Being 
 asked what passed between him and Tyler, he answered 
 that Tyler declared that he would not oppose the consti- 
 tuted authorities, but that if attacked by a mob he would 
 not yield to it. He had a right, and every man has a right 
 to resist unlawful aggression. In common with every 
 other citizen, he had a right to stand or fall by the laws 
 of his country. As there were no acts, his intentions 
 can only be judged by his words. None can discern 
 what designs a man has in his bosom. 
 
 Mr. Dana agrees perfectly with Mr. Woodbridge. He 
 passed over that night in his own boat to the island ; he 
 saw nothing hostile or improper. Though the people 
 were in great haste to leave the island, and though most 
 of them were strangers to him, yet they manifested no 
 alarm when he entered the hall where they were. 
 
 Mr. Belknap saw precisely the same things, and states 
 the same facts as Woodbridge and Dana. Yet during 
 all this time, we are told that a most bloody war raged 
 on the island. 
 
 But Mr. Poole was employed by the governor of Ohio 
 to apprehend Blannerhassett. But even his evidence 
 proves nothing like hostility. He thinks that some ot 
 the men had guns. He heard expressions about calling 
 for a boat ; that when a boat was called for from the 
 Ohio side, the answer was, what boat ? and if the reply 
 were, " I's boat," that a boat would be immediately sent 
 off; that otherwise it would not. He thinks the word 
 was " I's boat," or something like it, and that it was a 
 watchword or countersign. He was half a mile from 
 them, and it was a dark night. He therefore might be 
 deceived in his vision or hearing. Tyler's boats were 
 there. It might be a mere private signal among them- 
 selves, which might have been necessary to prevent mis- 
 takes, as they were using great dispatch to leave the is- 
 land, in order to avoid the attack of a mob. 
 
 But they have one more witness, Jacob Allbright. It 
 
 i.s impossible that this man's testimony can be true. 
 
 But the testimony of one witness, however correct, is not 
 
 .sufficient to establish the overt act. They must be two 
 
 i. 43
 
 674 TRIAL OF AARON BURR. 
 
 witnesses for that purpose. But his evidence is contra- 
 dictory and incredible. He proves one act of hostility 
 against General Tupper, whom they did not chose to ex- 
 amine, though attending here to give his evidence. They 
 would have examined him, if they had believed that he 
 would have confirmed Allbright's evidence. Their not 
 doing it, proves that they thought he would have contra- 
 dicted Allbright. He says that Tupper laid his hand on 
 Biannerhassett, in the name of the commonwealth, and 
 that immediately seven or eight muskets were pointed at 
 him. Yet no warrant or authority was shown by him ; 
 and that he had no such authority must be presumed, as 
 he'was from Ohio. For against what state was the trea- 
 son committed ? It was treason against Virginia, if it 
 existed at all. Biannerhassett had a right to resist, if 
 Tupper had no warrant ; and this evidence of his arrest- 
 ing a man is without the production of any authority 
 whatever ; and yet this is called resistance to law. But 
 even if he had a warrant, and had been opposed in at- 
 tempting to serve it, it would not have been treason ; re- 
 sistance to process is not treason, though a great of- 
 fense. 
 
 But he had sworn before that those who levelled their 
 guns at Tupper were not in earnest ; and he now admits 
 that he does not know that they were in earnest ; as 
 " there was no quarrel among them, and no firing after- 
 wards." 
 
 He mentions another circumstance, which, connected 
 with the rest of his evidence, is equally incredible ; that 
 he saw at different times a number of guns equal to the 
 whole number of men. He acknowledges that he did 
 not see the men all with arms at once, and that he did 
 not know the men who had guns, nor could he tell the 
 number of guns ; how then could this man venture on his 
 oath to say that he had not seen the same arms at dif- 
 ferent times, in the hands of different persons? It is 
 obvious, from his own statement, that this might have 
 been the case, and therefore no confidence ought to be 
 put in what he says. If this be an overt act, anything 
 that any government chooses to consider as such may 
 be an overt act. 
 
 But the counsel on the other side seems to think that
 
 ARGUMENT OF MR. WICK HAM. 675 
 
 the doctrine of treason may be extended, because no dan- 
 ger can be apprehended from it in this free country. 
 This argument may be very sound, if compared with his 
 other argument, that a majority of the people are always 
 right. 
 
 In every free country there is more occasion for guard- 
 ing against factions, than in a despotism. It is an evil in 
 the very nature of free governments, as everything good 
 in human institutions has its attendant evil. While it is 
 the effect of political freedom, it has ever been the cause 
 of its extinction. We ought to profit by the experience 
 of other nations, and repress that intolerance and party 
 spirit, which progressively but certainly lead to despotism ; 
 in producing which, the most dangerous and successful 
 engine has always been the doctrine of constructive trea- 
 son. In a despotism there are no factions or civil com- 
 motions. There are no factions in the camp or army of 
 Bonaparte. But in this, as well as in every other free 
 country, parties struggle for power ; the popular endea- 
 voring to crush the unpopular party. Hence the danger 
 of departing from correct principles, which in such a 
 struggle are too often disregarded. I have now gone 
 through every point which I meant to submit to the 
 consideration of the court. The importance of the 
 question is very great, not only as it concerns my client, 
 but every man in this country. I will only observe to 
 the counsel, that, as I have endeavored to support they 
 must oppose my arguments, on abstract principles, which 
 must be tested by reason and truth. These principles 
 must be just and true at all times, and in all places, with- 
 out reference to particular persons or circumstances, and 
 are intimately connected with the public liberty and 
 happiness. If the principles for which I have conten- 
 ded be correct, this prosecution can not succeed ; it 
 appears to my judgment, that if they be disregarded, and 
 the doctrines supported by the gentlemen on the other 
 side prevail, these will be the consequences : 
 
 First. If a man can be indicted as being present, for 
 overt acts committed by others, when he was absent in 
 a different state and district, the constitution of the 
 United States, which was so ably and carefully drawn up 
 in order to secure and perpetuate the freedom of the
 
 6-6 TRIAL OF AARON BURR. 
 
 people of this country, will be a dead letter. A citizen 
 may be seized by military force, dragged from one end 
 of the continent to the other, tried far from his family 
 and friends, where he is a stranger, at a place where he 
 never was,' and among people whom he never saw; nay 
 more, 
 
 Secondly. He is to be tried without any notice in the 
 indictment of the real nature of the charge against him, 
 or where the war was which he is accused of levying. 
 The indictment against him states that he did the act 
 himself, when in truth he was hundreds of miles distant 
 from the scene of action, and the act charged against him 
 was done by others. 
 
 Thirdly. The doctrine of the cruel Jefferies is to be 
 applied against him. He is to be tried for an act done 
 by another, without producing a record of the convic- 
 tion of that other, for whose alleged guilt he is to suffer. 
 
 Fourthly. The law of treason, and the rules concern- 
 ing it, as heretofore universally considered, are totally 
 misunderstood. A new definition of treason is adopted. 
 The levying of war may be secret, without arms, without 
 force, without any overt act. 
 
 All these arguments will apply not to this case only, 
 but to every case that may happen in any part of the 
 United States. These will be the certain consequences 
 of the doctrines contended for by the gentlemen on the 
 other side, if sanctioned by this court. Will they seri- 
 ously contend for doctrines that will expose all the 
 people of this country more to the dangers of construc- 
 tive treason, to greater oppression and hardships, than 
 the people of any other country have ever been subjected 
 to ? Certainly they will not. The records of this trial 
 will be a monument of an attempt to establish principles 
 that must infallibly introduce slavery. The attempt can 
 not succeed. But while I thus speak of the principles 
 themselves, God forbid that I should make the smallest 
 reference to the conduct of the government, or the mo- 
 tives of the gentlemen on the other side. 1 disclaim all 
 personal allusions, which must be without reference to 
 the merits at a)l times, and frequently tend to substitute 
 invective for argument. I believe the government will 
 disclaim all agency in the business, and that if they wish
 
 ARGUMENT OF MR. WICKHAM 677 
 
 the accused to be convicted, still they only wish him to 
 be convicted according to law. 
 
 Will gentlemen advance doctrines which the govern- 
 ment will disclaim ? If, indeed, it were possible that 
 they wished to conduct the prosecution on principles 
 that would destroy the liberties of their country, those 
 which they have advocated would certainly produce that 
 dreadful effect ; for it is obvious they have a direct ten- 
 dency to root out and destroy every principle of free- 
 dom ; but I trust they will never be sanctioned in this 
 country.
 
 I IS 
 
 
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