Part 1

Chapter 13,862 wordsPublic domain

Charlie Howard and the Online Distributed Proofreading Team at http://www.pgdp.net (This file was produced from images generously made available by The Internet Archive)

THE TRIAL OF AARON BURR

JOSEPH P. BRADY

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

NEW YORK THE NEALE PUBLISHING COMPANY 1913

PREFACE

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

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

LIST OF ILLUSTRATIONS

Chief Justice Marshall _Frontispiece_

FACING PAGE Warrant for arrest of Burr 20

Affidavit of Burr for subpœna _duces tecum_ for President Jefferson 40

Subpœna _duces tecum_ for President Jefferson 50

Subpœna _duces tecum_ for President Jefferson (continued) 50

Findings of the Grand and Petit Juries 70

THE TRIAL OF AARON BURR

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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