The Enquirer

The Enquirer.

RICHMOND, 10th JUNE.

TRIAL OF AARON BURR.

Circuit Court of the U. States for the fifth circuit and District of Virginia.

Present JOHN MARSHALL, Chief Justice of the U. States,

And Cyrus Griffin, Judge of the District of Virginia.

Wednesday, May 27.

Debate on the order and species of evidence to be introduced, on the motion to commit Aaron Burr for High Treason against the U. S.

(CONCLUDED.)

Mr. Wickham regretted that so much time had been consumed; but hoped that the court would acquit them of any intention to waste it; when any illegal motion was introduced by the opposite council, he felt it as a serious duty due to his client to resist it with firmness: that for his own part he should not forget that he was before the Circuit Court of the U. States, nor should he so far lose his respect for their discernment as to bring forward motions which he believed to be illegal only to waste the time of the court; that he hoped none but legal evidence would be suffered to be introduced; none but competent witnesses to be heard; and that if this rule was not rigidly adhered to, what was to prevent the counsel on the other side from producing any and every kind of evidence that they pleased?

It cannot be supposed said Mr. W. that we are afraid of this affidavit; what is in it, which has not been already known and scattered in every loose-sheet of a newspaper throughout the U. States? It is not that we resist it in point of fact; but on the ground of principle.

We wish two points to be settled; Are affidavits to be read at all on such a motion And at such a crisis of the prosecution as this?

And if so, ought they to be read if the witnesses themselves were present? Would it be right, if they were in the next street or the next county? Would it in fact be right if there was time enough to produce the vive voce testimony itself? Mr. Burr had a right to be confronted with Gen. Wilkinson. He had a right to cross-question and examine him on all the statements which he has made. The government had power to bring him here. Why is he not here? Ought not some satisfactory excuse to be made for him? He is an officer of this government; and the government might have procured his attendance as well by a special order as by a civil process. Has any subpoena been taken out, enquired Mr. W. addressing himself to the Clerk?

The Clerk replied, that no subpoena filled up with Gen. W's name had issued from his office; but that blank subpoenas had been taken out.

Mr. Wickham :--No one knows, sir. There was time enough to have him here. The mail travels from Washington to New-Orleans in 17 days. He might have come; but if he has not, why is not some satisfactory excuse brought forward? We want, sir, to see this gentleman cross-examined. We want to see him confronted with other witnesses. This is one ground, on which we object to the production of this affidavit.

Another ground is, that according to the decision of the Supreme Court of the U. S. this affidavit does not bear upon the present motion.

Mr. Swartwout, who was said to be connected with Col. Burr, was discharged by them because this affidavit did not apply to the charge of treason. Are counsel then to be suffered to produce testimony on any subject that they please?-A third objection is, that gen, Wilkinson does not relate a single act, committed in the district of Virginia;-in Virginia? no nor any where else. The Attorney for the U. S. says, that he will prove the Overt Act hereafter. But, Sir, I repeat it, that the rules of evidence apply not only to the admissibility of evidence but to the order in which it is to be produced. Let them first prove an Overt Act, if they can; and then they are at full liberty to prove the colour of it.

Again, sir, this deposition is not the best evidence which could be produced, and which the laws require. Gen. Wilkinson speaks of a cyphered letter, and of its contents, as well as he can make them out. Now, Sir, where is this Letter; and where is the key to it? Why are they not here? why are they not produced before you? For these reasons, Mr. Wickham hoped that the court would not suffer the affidavit to be read in evidence.

Mr. Hay. We shall not, sir. be carried from our course by speeches, however long or animated they may be.-But, sir, permit me to give those gentlemen a little information. Why talk of the affidavit before you? Do these gentlemen know, that we can positively prove the astonishment, the regret; and the denunciation which escaped from Mr. Burr, when he first heard of the publication of his cyphered letter?-Let them first know what we can prove, before they abandon themselves to their triumph. Gen. Wilkinson's affidavit is the first in the series of our proofs, and it is for this reason that we wish: to commence with it:

Mr. B. Randolph. Sir. we do not know what those gentlemen expect to prove. But we do object to the production of Gen. Wilkinson's affidavit from what is already known: we know it to be perfectly inapplicable to the present question. Sir, this species of evidence is directly in the face of our bill of rights and of the constitution of the U. States. . " In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state -and district wherein the crime shall have been committed, which district shall have been previously ascertained by law : and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him, St." Col. Burr then, ir, has a general constitutional right to be confronted with the witnesses against him.

Let gentlemen Show any exceptions to it, if they can. And what have they done? Why; they have shown here an obsolete, an evaporated affidavit, for which there is no necessity and no law. The law positively declares, that the best evidence is always to be had; that when a witness is attainable, his affidavit is not to be admitted as testimony.-We stand, therefore ir, upon the bill of rights. Gentlemen may, indeed, attempt to evade its provisions, by saying that they can hereafter prove the material act ; but I hope that this-court will never countenance such illegal proceedings.

The Chief Justice stated, that the Supreme Court of the U. States had already decided, that an affidavit might be admitted under certain circumstances ; but they had also determined, that gen. Wilkinson's affidavit did not contain any proof of an overt act : that he was certainly extremely willing to permit the attorney for the U. S. to pursue his own course in the order of drawing out-his evidence, under a full confidence that he would not waste the time of the court by producing any extraneous matter ; but where was the necessity of producing gen. W's affidavit first? If there was no other evidence to prove the overt act j Wilkinson's affidavit goes for nothing: for so the supreme court of the U. S. have already decided ; and by that decision he should have conceived himself bound, even if he had dissented from it. Why then produce this affidavit?

Mr. Hay observed, that there was a great difference between the course prescribed by the court and the one which he would have himself pursued ; and that he seriously believed, if he had been left to himself, he would at least have satisfied the court itself that his own course was the best; that as to General Wilkinson's affidavit, it might even now be confronted with witnesses ; as Messrs. Bollman and Swartwout were present, and would say whether such and such conversations were ever held, as are detailed in this affidavit : that he was now before an examining court, and not before the Petit Jury :.Why then the same strictness of evidence now as would be required on the trial in chief? That he really believed it was the intention of the opposite counsel, by dint of long speeches to attempt to drive him into their course: but that they ought to know he never consulted the counsel opposed to him: and that they would be the last persons in the world, whose opinions he would consult on the present occasion :--that he seriously believed, that the evidence which he possessed, would. beyond the possibility of a doubt, convince the mind of the court, not only of the existence of a traitorous design, but of an overt act: and that all that he asked was the liberty of producing this evidence in the order, which he tho't best.--Is no part of this deposition, then, admissible? not a word?

The Chief Justice observed, he thought no part of it admissible at this time; that gen. Wilkinson's affidavit either contained proof of the treasonable design, which was no proof of the overt act; or it related to conversations, which however strongly they might bear upon those who held them, did not bear upon Col. Burr.*

Mr. Hay asked how the court was to be satisfied of the contents of any paper, before it was read to them. An affidavit might contain both the proof of the overt act, and of a traitorous design. Was such a paper as this to be read under the decision of the court? Or how was the court to know, whether a paper might not contain some proof of the overt act satisfactory to them, unless they had an opportunity of inspecting that paper?

Mr. Wickham. These gentlemen talk of delay; and yet they would produce to this court whole masses of evidence that are perfectly irrelevant to the present question. They declare that they will not pursue our advice; and that we were the last persons whom they would take for counsellors. Sir, we do not ask them. All that we want is, that they would pursue the strict principles of law and evidence. One of the best rules of evidence is the order of evidence. If a man is charged with a crime, must not the deed itself exist, before any testimony is produced as to the intention, with which it is done? I hope that no testimony will be suffered to be introduced, before the overt act itself shall be produced: and I call upon this court to enforce the strict order of evidence.

Mr. Burr observed, that in point of fact it was very immaterial to him whether this affidavit was read or not; that what he particularly wanted, was, that the great principles of evidence should be laid down, which would be equally applicable to this and to all other affidavits. He consented that the court might have this deposition read, if they thought proper.

Mr. Hay. This deposition will prove that it was one of A. Burr's objects to seize upon Mexico : Then if we can prove by some other evidence that this object was connected with an attack upon the U. States ; is not this deposition of material importance in that point of view? If both must be proved, does it make any difference which we begin with? If a conspiracy has been planned, of a misdemeanor and of treason so strongly combined, that they are made to go on together, and the accomplishment of the one facilitates the accomplishment of the other, is it not of material consequence to prove the misdemeanor? I have not myself seen Mr. Taylor or Mr. Allbright, but I am credibly informed that they will prove an armed assemblage of men on Blennerhassett's Island.

The Chief Justice observed, that if there was no fact, or no overt-act of Treason, before the court, the court could have nothing to say to the present motion : that if therefore no fact was proved, the court could not hear the prosecution : that he Should be extremely sorry to waste the time of the court, and to launch into a variety of irrelevant subject, when there was actually no testimony to prove the overt-act itself, and thus to give the court a competent jurisdiction over the case.

Mr. Hay. I am bound, ir, to obey the decision of the court, however much I may lament that decision. I shall certainly acquiesce in their order. If I understand the court--

The Chief Justice said, that he was of opinion, that unless there be a fact to be proved. no testimony ought to be produced. The question before the court was not, whether there had been a treasonable intent, but an overt act. That fact itself must be proved. before there can be any treason or any commitment for treason.

Gen. Wilkinson's affidavit was accordingly put aside.

* * Here follow the other proceedings which we have already journalized : the production of Taylor and Allbright's testimony : and of Dubois' deposition, which last was finally rejected by the court.

* The C. J. observed in a subsequent stage of this business. that an idea had since struck his mind, which he thought it material to state : that he had not recollected that these conversations were said to be held by persons who were said to be authorised by Col. B. and of course that their conversations would bear upon him.
Last proceedings.

Tuesday, June 9th.

The same Judges were present, as yesterday.

The Grand Jury had been adjourned till 10 o'clock. About 9, they all appeared, and their names being called over,

Mr. Hay observed, it might be proper to inform the court, that he had received no further intelligence of gen. Wilkinson, except what was contained in the little scrap of paper in his hand. It was an extract from a Norfolk paper, and he believed the latest which had been published, the gentlemen from that part of the country could say, whether it was so or not : (Mr. Hay here read the following extract. from the "Public Ledger" of the 5th inst.)

This extract only proves, continued Mr. Hay that gen. W. had not left N. Orleans in the early part of May. My information therefore was not altogether correct:' The express whom Mr. Millikin met, had not travelled with the same expedition, nor arrived at N. Orleans as early as I had expected. Perhaps he did not reach that city before the 9th or 10th of May. We have evidence however to prove that a summons had been sent to him. This fact completely shows that he was at N. Orleans. My hopes are therefore stronger, that he has actually received the summons and I have not the smallest doubt that, he will soon arrive here.-The court will well recollect, that from the calculation which I had submitted to them, I concluded that he could not be here before the 14th or 15th.--It is my most anxious wish, for the sake of economy, of expedition, and what is of still greater consequence, the justice due to the country and the accused that this trial should be completed during the present term. Almost all the witnesses are here.

I am sorry to be forced to make so many apologies to the Grand Jury, who have already manifested so much patience ; but I beg them to recollect, the extreme importance of the present trial and that it will perhaps be the last time, that they are placed in this situation.

The Chief Justice presumed that the -mail from Norfolk would not arrive here, until the day after to-morrow.

Mr. Hay said that it had arrived the day before.

Mr. Martin. I have an extract from another Norfolk paper one day later, than the one quoted by the attorney : (Mr. M. here read the following from the "Norfolk Herald" of the 6th instant)

The ship-news in the same paper states, that the Hannah had left New-Orleans 27 days before.

Mr. Hay. If these are different vessels--

Mr. Martin. The same vessel, sir.

Mr. Hay. These vessels may convey some intelligence to Washington respecting general Wilkinson, which may consequently reach ourselves.

Mr. Burr. I hope, sir, it will not be understood, from the observations of my friend (Mr. M.) that I mean to take any part in this business. I Shall certainly not interfere with the Grand Jury in this stage of the affair. The proposition of the gentleman has my cordial concurrence.

.The Chief Justice observed, that if the jury were adjourned till Thursday. some passenger might, perhaps, arrive in the next Norfolk mail, with some intelligence about Gen. W.

Mr. Hay presumed, that the Jury would not probably be wanting before Saturday.-

Mr. Burr hoped that the Jury would be adjourned for as short a time as possible : at all events not longer than Thursday.

Chief Justice. This is Tuesday: The attorney for the U. States cannot probably expect gen. W. before Thursday,if he comes by water.

Mr. Hay knew not how he was to come. If by water he certainly could not be expected before that time : and if by land he would certainly require one day to recover from the fatigue of travelling.

The Chief Justice then observed to the Grand Jury that they were adjourned till Thursday 10 o'clock.

Mr. Burr then addressed the court. There was a proposition which he wished to submit to them.' In the President's communication to Congress, he speaks of a letter and other papers which he had received from Mr. Wilkinson, under date of 21st October. Circumstances had now rendered it material that the whole of-this letter should be produced in court.

And further. It has already appeared to the court in the course of different examinations, that the government have attempted to infer certain intentions on my part from certain transactions. - It becomes necessary, therefore, that these transactions should be accurately stated. It was, therefore, material to show in what circumstances I was placed in. the Mississippi Territory: and of course to obtain certain orders of the army and the navy which were issued respecting me. I have seen the order of the navy in print; and one of the officers of the navy had assured me that this transcript was correct. The instructions in this order were, to destroy my person and my property, in defending the Mississippi. Now I wish, if possible to authenticate this statement ; and it was for this purpose, when I passed through Washington lately, that I addressed myself to Mr. Robert Smith. That gentleman Seemed to admit the propriety of my application. but objected to my course. He informed me that if I would apply to him through one of my counsel, there could be no difficulty in granting the object of my application. I have since applied in this manner to Mr. S. but without success. Hence I feel it necessary to resort to the authority of this court ; to call upon them to issue a Subpoena to the President of the U. S. with a clause requiring him to produce certain papers: or in other words, to issue the Subpoena duces tecum --The attorney for the U. S. will however save the time of this court if he will consent to produce the letter of the 21st Oct. with the accompanying papers, and also authentic orders of the navy and war departments.

Mr. Randolph observed, that he knew not, whether it was necessary for him to support Col. B's motion : that he had been informed by him of his application through a friend to Mr. Smith ; and of Mr. S's refusing to grant the application, unless it were made through one of his counsel : that he had himself, therefore, addressed a letter to Mr. S. informing him of Col. B's statement.To this he had received a letter, which seemed like a personal

See Norfolk herald,
communication to himself, but as he had not requested him to withhold it from Col. Burr, and as it contained information material to him, he had shown it to Col. B. Mr. R. regretted that he had not the letter then about him: but the substance of it was, that the order which had been alluded to was only for the officer to whom it had been addressed, and was to be seen only by him. He added, that he had written in reply to Mr. S. that he never would have applied to him for it but for the two reasons, that it had already appeared in a Natchez Gazette: and that Mr. Van Ness (the friend of Col. B.) had informed him of Mr. S.'s unconditional promise to furnish the order if he was properly applied to for it.

Mr. Burr observed, that to avoid all possible misconception, he thought it proper to state, that Mr. Van Ness had assured him of Mr. Smith's positive and unqualified promise to furnish the answer, if applied for through counsel.

Mr. Hay declared he knew not for what this information could be wanted; to what purpose such evidence could relate, and whether it was to be used on a motion for commitment or on the trial in chief.

Mr. Burr, Mr. Wickham, and Mr. Martin observed that perhaps on both; according as circumstances might require.

Mr. Hay. I suppose this court will not proceed but upon facts. Now a letter of the 21st of October is spoken of; but has this letter been yet identified?--He hoped that the court would not issue the Subpoena duces tecum, until they were satisfied that they had the authority to issue it, and that the information required, was material in the present case.

Mr. Wickham observed, that the present was simply intended as a notice of a motion to be brought before the court; which motion might be discussed either to-day or to-morrow.

Mr. Hay declared that all delay was unnecessary: but he pledged himself, if possible, to obtain the papers which were wanted, and not only those, but every paper, which might be necessary to the elucidation of the case.

Chief Justice observed that all delay was obviously improper, that if the papers were wanted, they ought to be obtained as soon as possible: and not perhaps delay the ulterior stages of the prosecution.

Mr. Hay stated, that he had already received a communication from Mr. Wickham on this subject; and intended to have informed him, that he would write for all the papers which were wanted, (and he had no doubt he should obtain them, if the court judged them material.--The fact was that, he had already in his possession Mr. Randolph's correspondence with Mr. Smith, and the order from the navy department; but in his own opinion, they no more related to the present prosecution, than the first paragraph, of the first page of the acts of Congress.

Chief Justice enquired whether the Natchez Gazette was in court.

Mr Burr. No, sir; but I have already seen the same order in other papers; and have no doubt that almost every person has. At Natchez it was a subject of surprise that such an order had ever found its way into a public print.

Mr. Hay repeated, that if the gentlemen would furnish him with a list of such papers as they wanted, he would attempt to obtain them, if the court thought them material. Of what use were they? Were they too to be laid before the Grand Jury, to distract their attention: and to present under another point of view another subject for their consideration? He had supposed that the mass of matter to be laid before them was large enough already.

Chief Justice observed, that it was impossible to determine their use, without hearing them. He would much rather that the opposite counsels should make an arrangement with each other suitable to them both --and that the court itself was not now disposed to make any arrangement. But if the parties could not come to any agreement, he should then wish to hear some argument on the subject to satisfy him, whether the court had the right to issue a subpoena duces tecum.

Mr. Burr observed, that he had been told it was - the constant practice in this state to issue such Subpoenas upon the application of a party.

Chief Justice had no doubt it was the custom to do it, where there was no great inconvenience to the party summoned; that it seldom occurred: but that he was inclined to think, where great inconveniences would result to the party summoned, that the materiality of his testimony should be fully shown. If papers are to be obtained from a Clerk's office, such a Subpoena may be issued, and though not upon affidavit, yet where there has been good cause shown.

Mr. Martin said. that there would be no inconvenience; as the President might just transmit the papers wanted by the mail.

Mr. Hay observed, that Mr. Martin's remarks preceded any further proceeding; why apply to the court to issue a Subpoena to the President, unless perhaps it was the necessary form of obtaining the papers?

Chief Justice. The reason is that in case of a refusal to send the papers, the officer himself may be present to show cause. This Subpoena is issued only where fears of this sort are entertained.

Mr. Hay said, that no application had yet been made to the Secretary of state for gen. W's letter; nor to the department of war for its order.

Mr. Martin. If one department refuses, we may presume that the others will.

Mr. Burr. If the gentleman grants our demand, he may propose any alteration in its form that he pleases.

Mr. Randolph. If any arrangement can be made to obtain these papers, we would rather that it should be a voluntary act on the part of the government.

Mr. Hay. I will attempt to obtain these papers--any, in fact that gentlemen may want, if the court will but say, they are material.

Mr. Wickham: Col. B's counsel know little of the importance of these papers but from himself: and from that they are fully persuaded of their great importance. The attorney for the U. S. says, that so far as his personal exertions will go, he will attempt to obtain them and firmly believes that his application will be successful. But, sir, at Washington they may entertain very different views from himself: under such circumstances, it is better to encounter the delay of three or four days to obtain the authority of this court, than trust to an expedient which may be unavailing. But I see no necessity for any such delay; as the order may at once issue by consent of parties. As to the order from the Navy Department, a copy may be sufficient; the original is already gone out. As to Wilkinson's letter, we wish to see it itself here: and surely it may be trusted in the hands of the Attorney for the U. S.

Mr. Hay. It seems then that copies of papers from the government of the United States will not be received. They are not to be trusted.--After such an observation, sir, I retract every thing that I have promised. Let gentlemen, sir, take their own course.--Here some warm, desultory conversation took place at the bar, when Mr. Wickham observed, that as the unfortunate expression fell from him: he thought it proper to explain. He had intended no insinuation against the fairness of the government: that the distinction he had drawn between an original and a copy simply resulted from his anxiety to obtain the highest possible degree of evidence; hence he preferred the original to the copy: that if Wilkinson was here it would be necessary to meet him with his own letter; perhaps in no other way.

Mr Hay. That explanation removes the difficulty.

Mr. Wickham. We wish to confront him with his own letter. -Mr. Hay. Perhaps they may not be able to remove the original, as it is already filed in the department of state.-Mr. Martin. We are ready to go on with the discussion:-Mr. Wickham. - The President's message mentioned, that this was a letter to himself.- Mr. Hay. I hope the court will remember that remark. The letter these gentlemen then want is addressed to Thomas Jefferson. Have they a right to demand any but public letters?-Mr. Martin. The President's message said, it was addressed to him as President of the U. States.--Mr. Hay. If it be a public letter, it is of course deposited in the department of state. I have no objection, since this insinuation has been removed, to repeat my promise to apply for these papers, if the court thinks them material; and when the business arrives at the proper stage, they may then be produced. I hope that no more time will be wasted in these preliminary stages; and that such arrangements may be adopted as will prevent this useless consumption of time and of bread.

Mr. Randolph had no reason to believe, that there had been more delay on his side, than on the other; that if time was to be consumed at all, more would be employed in removing greater difficulties than had already been done; that he however only hinted at this now.-He declared with Mr. Wickham his perfect concurrence in this measure.

Mr. Botts. Unanimously so, I am sure. .Sir, I cannot sit down, and hear complaints so unnecessarily repeated about the waste of time. 'Tis time, Sir, to be done with them; 'tis time that we should enjoy something like the liberty of speech. Mr. Hay makes, I think, about a dozen times as many speeches as any other gentleman: and each speech longer than those of other persons; and yet we cannot open our mouths, without his sounding loudly his complaints to the ears of this Hall.--On this case of unequalled magnitude, shall we not be suffered to declare our opinions; without this unnecessary complaint about the consumption of the court's time? We feel the magnitude of our duties, and we shall firmly discharge them, in spite of Mr. Hay. It is obvious to you, Sir, and to every body, that the delay is not with us.--If, Sir, you call for an argument, we are ready to proceed.' But if you are satisfied--

Chief Justice. If the attorney for the-United States is satisfied that this court has a right to issue the subpoena Duces Tecum, I-Mr. Hay. I am not, sir.

Chief Justice. I am not prepared to give an opinion on this point; and therefore I must call for an argument.

Mr. Hay. When I said that there had been a great consumption of time, I certainly did not mean to insinuate, that they only consumed it. I have certainly had my full proportion. I thought however that my proposition would have saved some time; and I am still willing to repeat my promise.

Mr. Randolph. That the court may understand us, I will read to them the form of the Subpoena which we wish to obtain. (Here Mr. R. read the sketch before him.) Mr. Botts. We will be under the direction of the court, whether we shall proceed in the argument to-day or to-morrow.-Chief Justice. Unquestionably, there must be an argument, if the attorney for the United States disputes the authority of the court.

Mr. Hay. Whatever other gentlemen may think on this subject, I have not the least doubt that these papers will be produced: because Mr. Robert Smith has voluntarily furnished me with the order of the Navy Department. But although I may procure these papers, let it be distinctly understood, that I shall object to their being unnecessarily produced.

Mr. Botts. It will take 4 days at least to interchange letters between this city and Washington, and 2 or 3 days to copy the papers. So that 6 days will be totally lost to us: In the mean time, 50 or 40 witnesses; and 16 Grand Jurymen (they might perhaps require them) would be detained here; and after all, the attorney's application to the government might be unavailing.

Mr Hay. Since then gentlemen, sir, will press this subject; I ask no more than that they will waive this discussion till to-morrow.

The court was then adjourned till to-morrow, 11 o'clock.

There can be no question, if Gen. Wilkinson received his summons in due time; and is not detained by other public and more important considerations; that he will deserve to be cashiered for not attending the Trial: It is in fact a manifest disobedience to the orders of his superior officer.

It is one presumption for believing that Gen. Wilkinson will attend: that Gov. Claiborne has been expected at least two or three weeks by his friends in Virginia: to spend the summer. He has not arrived. The presumption is, that he is waiting for Gen. W.