Joseph P. Brady

“ 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. ”

“ 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. ”

“ The Chief Justice promptly delivered an appropriate charge to the grand jury. He dwelt more particularly upon the definition and nature of treason, and the testimony requisite to prove it. He said in part: “To you by the Constitution and laws of our country is confided the important right of accusing those whose offenses shall have rendered them subject to punishment under the laws of the United States. It is on you that the fundamental principles on which the stability of our political institutions and the safety of individuals most greatly depend. ”

“ 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. ”

“ 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 coöperate44 is no evidence of an actual coöperation. ”

“ 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. ”

“ 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? ”

“ 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 a34 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. ”

“ 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.”
SUBPŒNA DUCES TECUM FOR PRESIDENT JEFFERSON ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Associated with him from the day of Burr’s arrival in Richmond was John Wickham, grandfather of the late General W. C. Wickham and great-grandfather of Hon. Henry T. Wickham, an eminent member of the present bar of Virginia. Mr. Wickham was regarded by many as the ablest lawyer at the Virginia bar. “The qualities,” says Mr. William Wirt in the British Spy, “by which Mr. Wickham strikes the multitude are his ingenuity and his wit. But those who look more closely into the anatomy of his mind, disclose many properties of much higher dignity and importance. ”

“ 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 ”

“ 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 operation87 of motives to which alone they can ascribe that deliberation, is perhaps a frailty incident to human nature ”

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

“ 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. ”

“ 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 with52 a keen and savage thirst for blood ”

“ 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 rumors31 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 ”

“ 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 at56 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 ”

“ 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;32 and the commitment cannot be had unless in consequence of a presentment or bill of indictment found by that body. ”

“ Burr claimed the same right of challenging grand jurors for favor that he had of challenging petit jurors, and was sustained in his position by the Chief Justice. His objection to Giles was that, on occasions in the Senate, he had pronounced his opinion on certain documents sent to that body by President Jefferson attributing to Burr treasonable designs, and upon such information advocating the suspension of the writ of habeas corpus. He stated that he could produce22 evidence, if necessary, of public utterances of Senator Giles confirming these views. ”

“ The counsel for84 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 ”

“ 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 argument36 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 ”

“ 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 and47 war departments. ”

“ Dr. Erick Bollman, an educated German, who had recently distinguished himself by a gallant but unsuccessful attempt to rescue Lafayette from prison in the castle of Olmutz, Austria, and in whom Burr had confided. Jefferson expected Bollman to give testimony that might criminate himself, and during the trial sent through District Attorney Hay a pardon for him, which Bollman indignantly refused to accept. And thither also came Governor Alston of South Carolina, and16 his wife, the beautiful and accomplished Theodosia, the only daughter of Aaron Burr ”