Chapter II: Part 2

“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.

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.”

_Facing p. 70_
]

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