Part 2

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

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

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

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

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

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

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

“The case is this,” says Colonel Burr: “No man denies the authority of the court, to commit for a crime; but no commitment ought to be made, except on probable cause. This authority is necessary; because policy requires, that there should be some power to bind an accused individual for his personal appearance, until there shall have been sufficient time to obtain witnesses for his trial; but this power ought to be controlled as much as possible.

“The question in the present case, is whether there is probable cause of guilt; and whether time ought to be allowed to collect testimony against me. This time ought generally to be limited; but there is no precise standard on the subject; and much is of course left to the sound discretion of the court. Two months ago, however, you declared that there had been time enough to collect the evidence necessary to commit, on probable cause; and surely, if this argument was good then, it is still better now.

“As soon as a prosecutor has notice of a crime, he generally looks out for witnesses. It is his object to obtain probable cause for committing the accused. Five months ago, a high authority declared that there was a crime; that I was at the head of it; and it mentioned the very place, too, where the crime was in a state of preparation. The principal witness against me, is said to be Mr. Wilkinson. Now, from what period is the time to be computed? If, from the time I was suspected, five months; if, from the time when I was seized, three months; or is it to be only computed from the time when I was committed? So that it is near forty days since the notice must have arrived at New Orleans. But a vessel navigates the coast, from New Orleans to Norfolk, in three weeks. I contend, however, that witnesses ought to be produced, from the very time when the crimes are said to be committed. There is, then, no apology for the delay of the prosecution, as far as it respects the only person for whom an apology is attempted to be made.

“There are other serious objections to my situation. Must I be ready to proceed to trial? True, sir, but then it must be in their own way. Are we then on equal terms here? Certainly not. And again, as to affidavits. The United States can have compulsory process to obtain them; but I have no such advantage. An _ex parte_ evidence, then, is brought before this court, on a motion for commitment. The evidence on one side only is exhibited; but if I had mine also to adduce, it would probably contradict and counteract the evidence for the United States. Well, sir, and these affidavits are put into the newspapers, and they fall into the hands of the grand jury. I have no such means as these, sir; and where then is the equality between the Government and myself.

“The opinion of the court, too, is to be committed against me. Is this no evil?

“A sufficient answer, sir, has been given to the argument about my delay; and its disadvantages to myself have been ably developed. But my counsel have been charged with declamation against the Government of the United States. I certainly, sir, shall not be charged with declamation; but surely it is an established principle, sir, that no government is so high as to be beyond the reach of criticism; and it is more particularly laid down, that this vigilance is more peculiarly necessary, when any government institutes a prosecution: and one reason is, on account of the vast disproportion of means which exists between it and the accused. But, if ever there was a case which justified this vigilance, it is certainly the present one, when the Government has displayed such uncommon activity. If, then, this Government has been so peculiarly active against me, it is not improper to make the assertion here, for the purpose of increasing the circumspection of the court.”

Mr. Burr observed, that he meant by persecution, the harassing of any individual, contrary to the forms of law; and that his case, unfortunately, presented too many instances of this description. He would merely state a few of them. He said that his friends had been everywhere seized by the military authority; a practice truly consonant with European despotisms. He said that persons had been dragged by compulsory process before particular tribunals, and compelled to give testimony against him. His papers, too, had been seized. “And yet, in England,” said he, “where we say they know nothing of liberty, a gentleman, who had been seized and detained two hours, in a back parlour, had obtained damages to the amount of one thousand guineas.” He said that an order had been issued to kill him, as he was descending the Mississippi, and seize his property. And yet, they could only have killed his person, even if he had been formally condemned for treason. He said that even post-offices had been broken open, and robbed of his papers; that, in the Mississippi Territory, even an indictment was about to be laid against the postmaster; that he had always taken this for a felony; but that nothing seemed too extravagant to be forgiven by the amiable morality of this Government. “All this,” said Mr. Burr, “may only prove that my case is a solitary exception from the general rule. The Government may be tender, mild and humane to everybody but me. If so, to be sure it is of little consequence to anybody but myself. But surely I may be excused if I complain a little of such proceedings.”

“Our President,” said Mr. Burr, “is a lawyer and a great one too. He certainly ought to know what it is that constitutes a war. Six months ago, he proclaimed that there was a civil war. And yet, for six months have they been hunting for it, and still cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but nowhere else.”

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

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

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

“First,” he said, “it must be proved that there was an actual war. A war consists wholly in acts, and not in intentions. The acts must be in themselves acts of war; and if they be not so intrinsically, words or intentions cannot make them so. In England, when conspiring the death of the King was treason, the _quo animo_ formed the essence of the offence; but, in America, the national convention has confined treason to the act. We cannot have a constructive war within the meaning of the Constitution. An intention to levy war, is not evidence that a war was levied. Intentions are always mutable and variable; the continuance of guilty intentions is not to be presumed. Secondly, the war must not only have been levied, but Colonel Burr must be proved to have committed an overt act of treason in that war. A treasonable intention to coöperate is no evidence of an actual coöperation. The acts of others, even if in pursuance of his plan, would be no evidence against him. It might not be necessary that he should be present, perhaps; but he must be, at the time of levying the war, coöperating by acts, or, in the language of the Constitution, be committing overt acts. Thirdly, the overt act by the accused, as an actual war, must not only be proved, but it must be proved to have been committed within this district. Fourthly, the overt act must be proved by two witnesses.”

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

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

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

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

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

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

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