Part 4

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

_ENDORSED_:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In conclusion the Chief Justice said:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE END

Transcriber’s Notes

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

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

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

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

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

Page 58: Transcriber corrected several lines of transposed text.

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

End of Project Gutenberg's The Trial of Aaron Burr, by Joseph P. Brady