Part 3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“VIRGINIA DISTRICT:

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

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

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

HAY.

Attorney of the United States for the Virginia District.

“Witness in behalf of the United States.