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TRIAL OF COLON’LL BURR.
J'r.ui.RAL Coußtf—hn imiznd, Tumrluv, Srfit.29.
MO TION 1 JK COMMIT Mi NT.
EVIDENCE OF (X .. WILKINSON.
Cr\\X INC V.D.
I thin'; ! did mention to :Ucm tlie propriety
r>f going ii tli-; iii i cos private ciiizens, to elude
the vi uar.oc of Burr’s spies, many of whom
“ere in New-Orlcans, and would give him
tioitce of then departure lion, (hat place. It
was also prudent .0 send them in that matiiier,
that the jealousy ol the Spaniards, through
v.iiotc tenitoiics they hud to pass, might not be
exci'rd.
They were sent privately, for the surer ss of
<hc enterptize depended upon it. Mi. link/mm.
Did yoti give them w:itten or oral instructions?
v, Both. Q. Have von copiisofthe written
instructions ? A. Not here. Q. Will you lin -
nsh copies ? [Mr. 11 . y objected to the pro
tin don of those orders H>- said that they had
11 right to impeach Tie credibility of the witness,
but not to compel him to disclose the orders
given to those under his command.J Q Were
those orders to seize colonel Butr wherever
they could find him ? A They were sent on
that service expressly. 1 tliink the orders were
conlincd to Natchez; information having been
icccivcd tliat colonel Burr had taken up his
quarters there. (}. Were there any orders to
seize him even in court ? A. I cannot say, hut
presume there were not. Q- W ere any private
soldiers sent to this service ? A No. Q Were
any soldiers sent to licit Jones’s gtin-boais ?
.A. Infantry wcie furnished to supply the place
ol marines in all the gun-boats. Q. Were any
inslrue ions suit by you, that the men in lieut.
Jones's gun-boats should act ? A 1 gave lieut.
Jones no orders ; as he was not under my com
mand. Q Was commodore Shaw considered
under your authority ? A. He was rather con-
Bideicd co-operating with me ; but he had a
discretion of his own Q. Was there a rccom-
Tiitmu.tion to commodore Shaw to give direc
tions to liculenal Jol.es to take any measures
to apprehend colonel Bun ? A. I think the :
orders rct|tiii eij him to do so. Q What ortlci s I
were given forth:: disposal of colonel Burr ? A. ‘
I’hc orders were, that he should he pul on boaid 1
a vessel and sent by the way ol New-Orleans to
the city of Washington. Q Were these or- I
tiers written? A. I belie,e tliey were. Q
What orders have you from die government,
or did you do it on yom own authority ? [(ien
eral Wilkinson took time till to-morrow to con
sider the subject and examine his papers.]) Q.
When you were at Ncw-Orleans, were no: Id
le-s, addressed *0 other persons, frequently
r'lght to you fro 1 the post-office; by whose
ciders were they delivered to you; were they
opened, and with what view? [Mr. Hay llio’t
that they had no right to ask such a ques
tion. It light he important between the U.
St ites and general Wilkinson But it does not
appear to be proper to interrogate him as to his
Conduct any where, unless it has some bearing
on the cause ; nor can a witness he asked any
question, the answering of which might sub
ject him to a prosecution. If we had intro
duced evidence on th.it point, they had a right
to cross-ex.l.nine him. Mr. Wi khtim. We may
suppose, without impeaching the credit of gen
eral Wilkinson, that he will give as favorable
an account of his conduct, as any man standing
tn nis situation may he disposed to do (ienei
iil Wilkinson has detailed a number of facts to
account fortnc conduct of < oloncl Burr; he has
taken very strong ground. We wish to shew
tlt.it the general has the strongest possible mo
tives to eliminate colonel Burr. We weie
permitted to ask him about sending officers in
disguise to seize colonel Burr: we wish now
to prove some other seizures. This evidence
lias a direct reference to the case of col. Biiit
II general Wilkinson took all these incasivcs.
Jt will surely have a tendency to weaken his
testimony. Mr. Martin. We mean to shew
that general Wilkinson is identified wi.h the
government; and the government hud declar
ed they would justify him. We have . wit
ness to prove the express declarations of hs
sec retary at war, that general Wilkinson stood
low with the government, till his energetic
measures at New-Orlcans had raised him i
the estimation of the president. They can only
justify his acts by shewing an impropriety in
the conduct of colonel Burr. The more we
shew that the constitution has been trampled
e i and the lights of the citizens invaded, the
more they will endeavor to shew the impro
priety of the conduct of colonel Bun in order
to Mr. Hay. Mr. Martin has avow
ed the motives of colonel Burr’s counsel to be.
to identify general Wilkjnsi n wilt the gov
ernment. Admitting that general Dearborn
had made the declarations ascribed to him ;
•admitting, that the president had formed tli it
opinion of general Wilkinson, how cut his an
tjwer to the question propounded, have any
bearing on this case ? Suppose general Wii
kinspn should say, that in consequence of the
expected arrival of colonel Burr, the agitated
state of the country, and a know ledge that he
was surrounded by the accomplices and parti
i .tis of Buit in New-Orlcans, he had taken let
ters from the post-office (and he would only
have done what he ought) how tonld it affect
the present case ? It is manifest that the an
swer of general Wilkinson must leave the ques
tion between the United states and colonel Burr
exactly where it was before. Mr. Wickham
W hen these questions were asked Mr. urrav
before, they were thought proper, and he was
even cross-examined bv the counsel for the
prosecution. The gentlemen had ascribed to
colonel Burr improper acts. Now, to impeach
general Wilkinson’s credibility, vc shew that
lie has been gt ctv7oLf.t iftA f*. bf nht m*
tcicstcd to shew the conauct of colonel Burr to
be improper, in oidei to justify his own ? Air.
hiker. Suppose, says Mi. Ilay, this de lac ,lion
of general Dearborn to be ti uc ; uppose that
general Wilkinson did not deserve to amid high
in tlie conlidence of the government; would it
not have any bearing on the cause, would it not
leave the question between the United States
and col. Bun- exactly where it was belore iAt
one time the counsel on the other tide seem
willing to give the geneiul up. -vow they
stand ioiwaickas the champions ol the vvoitliy
general. Suppose it be proved, that he has
llnust his hand, or ui.eaed others to doit,
into the post-office and pillaged ictleis.—
Suppose it be proved that he has made era
suk s m ictieis and then sworn that translations
ct them were true copies, which were as much
like the originals as any other thing ; arid that
he has sworn to this, that and the other, whe
ther true or luise, will not ail these tilings tit
led his credibility ? Mr. Wickham said that it
was a question entirely ior the consideration ot
general Wilkinson himself. If be thought
proper to answer the question, it was not trie
business of the prosecution to lntei sere. Tlie
Chiel Justice alter mentioning some rcmaiks
on the nature ot ihc question, absolved, that
general Wilkinson was not bound to answer
any question that might criminate himself.
Some observations were made as to the extent
of the opinion of the court. Air. Wirt suppo
sed, from die decision of the court in the case
ot Wyliic, that general Wilkinson could nol
be bound to answer die question. Mr. YV ick
ham thought directly die reverse
Mr. Wi.kham to general Wilkin tart. You
have heard die opinion oi the court. Were or
were noi letters addressed n>other-persons fre
quently sent from the post office to you; by
whose orders, and were they opened, and with
what view i Can you answer tint question \yith
oui criminating youisell ? A 1 shall not an
swer that question. Mr. Wukhum. YVereoi
ders sent to sop and examine travellers ( A
I'hcte were. 1 hese weie the joint orders ol
governor Claiborne and myself. At that lime
colonel Burr was daily expected at Natchez
witli zuoo men. and 1 wished to cat oil all com
munication between that place and Ncw-Ur
leaus, in order to prevent bin. from receiving
information from his adherents, and to gain
time lor strengthening our defence. The im
pel ions circumstances which justified thismea
suic, I will relate. A general panic had seized
the friends of government in New-Orleans.
[Here general vY ilkinson was interrupted by
me lOunsei ol colonel Burr, who objected to hi's
slating the motives which governed him. Air.
W irt sud, ilia; it die witness were called on to
accuse lumseif of arbitrary acts, he ought to ex
plain the motive with which those ads were
committed. Mr. Wickham said it was then
wish to goon with the cause, without being in
len uptcd with the explanation of tire witness ;
and after they had gone through, the counsel
for the prosecution might ask for any further
explanation But it was well known that the
proceedings ol each day are published ; and it
is important to the teclings oi the witness, that
nc should state tue grounds on which he pro
ceeded. Mi. Martin, i tic proceedings have
hei etoforc. been published without regard to tlie
feelings ol cotonei Bun.] ir. I. tckliam to gen.
II ilkinson. \\ neu did general Adair arrive in
ew-l>rleaoa ? On die 14th of January
Mi’ W ‘irkn.nn. Has your conduct in seizing
Adair, Ogden, Sw.u tvvout and others, been ap
proved or disapproved by the government ?
Have you received any communications from
die go'-ernineiu on ih.-.t subject? Mr. Hay.
It has been the constant etlori ol the counsel on
the o'he i side to niemiiy general Wilkinson
with the government. We have heat'd of the
plundering ot post-oflices, violating oaths, and
prostrating private rights. Now it is asked il
the govern icni approved of these acts. Is i.
decorous is it proper to pursue this course :
1 hey may usg questions lo implicate general
Wilkinson; but is it propel to endeavour to
cast an imputation upon the government ? 1
.eel no solicitude on the subject ; for when all
the circumstances a:e considered, and the real
situation of that country understood, tho’ 1 win
not say that the measures were strictly lawful,
yet 1 will say the exigencies of the times called
hii them ; and'hat the person who held the
high and responsible situation of general Wilk
inson, was bound to pursue the course which he
did. General Wilkinson still letains the com
mand of the artny. II the gentlemen wish to
infer from that circumstance, that the govern
ment approved ol his conduct, let them do so.
Mr. IVickham. It is not our object to criminate
the government, but to obtain the truth. We
hope that general Wilkinson will not sav that
his conduct has been approved by the govern
ment. Is this a state secret ?—'i’he Chid Jus
tice said that he should be sor-y to require an
answer which would state the opinions of the
government. He was rorry that an objection
hud been made to answering the question. Mr.
Hty said, he hedeved that the government
knew i othing about it, and rttherthan it should
he supposed that the administration directed
measures which they were unwilling to avow ;
—let them goon. He was willing that tlity
should go on ; and instead of making this all
enquiry into the conduct of Burr and his accom
plices, let it lie solely, as it seemed to be, an
enquiry into the conduct of the government j
Mr. \\ ickhatu repeated the same question to
general Wilkinson, whether his conduct, in
seizing general Adair, Ogden, Swartwout and
othet s, had been approved or disapproved by
the government, and whether he had received
any communication from the government on
the subject ? Ceneral Wilkinson said he had
no objection to answering the question except
so far as the answty might be a dhs
ffcsure of tvhat mlgf.t be deemed private in
structions, lathe first instance, said general
Wilkinson, I acted on my ovvy responsibility.
I have said that 1 was left six months without
ot dot s, ilut 1 seized no man under the orders
of die president.
Thursday, October 1.
Gen. Wilkinson was alrout to explain more
fully some ot the interrogatories put to him at
his last examination—when he was interrupted
by Mr. \Vickhunt, who declared that he fell no
disposition to interfere with the explanations of
the witness, but was vet y anxious to go on with
the cause. With respect to the motives with
which any act was (’one, he knew nothing and
cared nothing. ‘1 lie Chief Jt lice declared
tliui general \\ ilkinson had a right to explain
any interrogatories ; and again repeated the
substance of the opinion which lie had before
given. General \\ ilkinson proceeded—i have
been asked whe her in October 1806. I did not
expect immediate hostilities with the bpan
i.utls ? I was required to account lor the cause
of the sudden change of position of the Spanish
army? I was interrogated as to the conven
tion wi h the Spanish command t t, and with
peculiar delicacy I was asked rv her any mo
ney was received as a condition ? ..Iso whether
I tiad not posted guards on the hi /ways about
New-Oi leans to interrupt travcllei v ? To these
interrogatories, quite unexpected I made such
replies as I was then enabled \o uo from me
mory. By referring to my papers, they will
shew that 1 did expect a war with Spain so ear
ly as September 1806. (Here the general re
fer) ed to an extract of his letter of the Bth of
September, and his letter of the 4th of October
1806, to the Secretary at War, which were read
—see notes’ M. ,\.) On my advance to taka
the command of the barrier post, l passed Fort
Adams on the 12th of September. There I
found two letters from colonel Cushing* detail
ing his correspondence with the Spanish com
mander. I was then asked fora eopv oftnc
convention. lam now about to do that lor
which my country and gentlemen of my p, b
tession may perhaps condemn me. But under
the charges and insinuations by which my cha
racter bus been assailed, I flatter mysell, ,hat
shoitid I be guilty of any impropriety, the cir
cumstances m which 1 an- placed will excuse
me.—llcte are ail the papers relative to that
convention. (General Wiikinson produced a
number of letters, containing the correspon
dence between him anil theJdpanisli command
ants about the time the troops of that nadon re
ciossetl the Sabine. Mr. Martin said, tt.ev
wished to have the papers, and hoped the court
would have no objection. The Chief Justice
observed, that he had no objection, but wished
it to be distinctly understood, that he would not
coerce the production of any paper which re
luted to a negotiation between this country and
any foreign government.
Mr. Martin said, that would depend upon
circumstances. lie held it a sacred principle
that il the government thought proper to pro
secute a citizen, they were bound to produce
every paper which might be necessary for his
defence, or to give up the prosecution. Mr.
Hay thought it would ire improper to read the
papers ; because they related to a negociation
with a foreign government, and because they
itatl no relation to the subject before the court.
General \\ ilkinson had, indeed, from the insi
nuations which had been made, been induced
to produce those papei3 ; but it was evidently
done with a considerable degree of embarrass
ment ; and would not justify the reading of
them, if it were otherwise improper. Mr.
Wickham. I have asked for the convention
with the Spanish commandant, but am told
that it is a state secret. I concur with Mr.
Martin, that when an individual,is prosecuted
by the government, no state secrets should pre
vent the production of every paper necessary
for his delencc. General Wilkinson said he
wished it to be understood that these were very
imperfect translations of t lie letters from the ori
ginal Spanish, and therefore, that he could not
deliver them but under the stipulation that they
should be accurately translated before publica
tion ; as he had discovered governor Cordero
and governor Harrara to be officers of polished
education, from his orrespondence with them.
He had made this stipulation as a duty which
military men owe to one another throughout
the world. These letters contain the conven
tion ; a convention without an article. [ The
Chief Justice said that he would not compel
the production of the convention unless its bear
ing on the case be shewn. Mr. Martin. We
have a right to it—l hope it will be noted that
wc have made a solemn demand of these pa
pers.] General Wilkinson proceeded. The
next question which was asked was, whether
1 had not made private communications to lieu
tenant Jones. I have said that 1 gave no or
ders to lieutenant Jones ; but if I had, here
are documents to shew, if not a justification of
my conduct in all the measures I presumed,
at least an extenuation. [Here general Wil
kinson presented several papers shewing the
agitated state of New-Orleans, and the dangers
with which it was threatened. They were not
read. See notes, O. P. Q R.] Mr. Wickham
to general Wilkn'.son. Do you recollect the
last question I put to you ? Has your conduct
in seizing Swartwoot, Bellman, Ogden and
Adair, been approved or disapproved by the
government; and have you received any com
munications from the government on this sub
ject ? General Wilkinson said he must refer
to his honor to know whether he was bound to
answer that question. [The Chief justice de
clared that it might be answered under the re -
trictions already laid down General It -
kin son. I can say that three of those pi . son ;.
perhaps four, were seized on mv own respon
sibility, without ati v orders from the govern
ment, Mr. Wickham, Which three ?A.
tollman, Swartwout, Cgtier., and perhaps
Adair. Mr. liukham. iluu you any orders
then, or afterwards to seize them ; hail jou
any orders with respect to tl.e seizure ot colo
nel Buir by military force ? A. No ; not at
that time. Q. Had you any afterwards i Ge
neral Wtlkinson. That is a question of vety
great delicacy with me. (Addtessing the
judge) can a question be fairly put and a an
swer coerced which may destroy a man’s hon
or ? [Mr. Wickham said there was no rule of
law which pretented a witness from giving an
answer unless it subjected him to a criminal
prosecution. Merc sympathies were no cause
of refusal. How ever unpleasant these ques
tions might be to general Wilkinson, it would
be a shameful dereliction ol duly in the counsel
of colonel burr not to put them. He saiu that
lie had not experienced any sympathies to
wards his client.] General Wilkinton to the
Judge. Is a trial before a court martial similar
to a criminal prosecution ? I might be subjec
ted 10 military punishment, to as severe pun
ishment as could be inflicted by a civil tribunal,
for revealing my orders, l ire Chief Justice
said that lie was not sure that general Wilkin*
soli could be required to answer that question.
[Mr. Wickham contended that there could be
no articles of war which could punish a man
for disclosing what he is called upon to declare
in a court of justice. The court had a right to
require the disclosure, and would enforce its
own authority. Mr. M‘Rae contended that
w hen the answer required would lead to the
discovery of a fact w liich might subject a man
to punishment, it was always deemed a good
reason to withhold it. He understood the an
swer which might be given by geneial W il
kinson to be of this nature. The question was
calculated to extract from him a fact, the dis*
clo .m'e of which might tend to subject him to
punishficM. He could not say what would be
done before a military tribunal ; but it was
possible that lie might be punished if he should
answer in a particular way. Suppose he should
say that the government did not authorise him
to seizs the persons of Burr and his accompli
ces ; did that he acted upon lbs own responsi
bility ; or suppose lie should 1 e acting under
the authority of government, but upon examin
ing his powers, should find that he had trans
cended them ; would not a disclosure of this
fact civ mate him, and subject him to prose*
culir n? The Chief Justice said that th r ques
tion dkl not lead to the fact of seizing those
persons, but to the authority with which it was
done. If general Wilkinson had con : itted
the act with authority, be must shew his
decs. Mr. -Wickham said he did nor believe
that any thing which general Wilkinson could
say would be legal evidence in the cause It
was not that kind of evidence which was ad
missible in prosecutions of this nature. Bi.t it
was importantrto know what orders the go
vernment had given, and whether he had ex-,
ceecied those orders. Mr. Martin. We wish*
to know the conduct and character of the go
vernment on this occasion. We wish to know
whether any, and what orders were given by
the government. Is there to be one rule, as to
the prosecution, who wish to uike the life of a
man away, and another rule as to the man whose
life they seek to take ? Mr. Hay had no objec
tion to an answer from general Wilkinson as
to the conduct of the government throughout.
He said that Mr. Martin had disclosed his real
object to be, to try the government and not the
accused. Will this ascertain the innocence or
guilt of colonel Burr ? The object evidently
was to arraign the government before the bar
of the public; but he was perfectly satisfied
that when the conduct of the government
should be kno ■ n, the people of the United
States would think that the government had
done exactly what it ought to have der.e. Mr.
Wickham. In commenting on the evidence we
sh til endeavor toshew that a number of witnes
ses have been brought forward by the govern
ment who have taken a most decided part in the
prosecutton; and that their real object has been
to render themselves acceptable to the govern
ment.
General Wilkinson. I had an order Itom the
government. Mr. Wickham, from what de
partment? A. From the administration. Q.
From whom? A. From Mr. Jefferson Q.
Have you any written order? A. I have among
my papers, but I will net produce it. I had
rather go to jail. Mr. IFiekham demanded
the production of the order; but said, that if
general W ilkinson requited time to consider
of the consequences of a refusal, he hajl no
objection to allowing it to him. General* MV/.
kina on (addressed the judge, you are, from pro
fessional experience, mot e competent to decide
on the propriety of revealing my orders, than I
possibly can be. Ihe letter which conveys the
particular order alluded to, may embrace a
variety of other matter, many parts of which it
would be highly criminal in me to divulge.
I conceive I should forfeit my honor and the
confidence of all military men, if I were to re
veal my correspondence with the government,
without the command of my superior. (Mr.
Hay had no doubt but the order was in strict
conformity with law; but if there be piivate
and confidential communications in the letter,
it would not be required of general Wilkinson
to produce it. Chief Jus ice. If the otdet bo
mingled with other things, private and te nfi.
■ dcntial, the court will not require its ptoriitc*
I tlon.) Mr. , Wickham to general Wilkinson.
’ Did you, by letter or otherwise, request .un
person not of the army to seize colonel Butr,
1 and put him on board a vessel * A. I gave In
structions to a gentleman who is now here,
Silas Dinsmore, esq. and who is not of the flr
mv. Q. Did you give such orders u>.
others ? A. 1 recollect Dr. Carmichael ■ but
no other person exrept the officers ofthear*
my. q. Do you recoiled expressing to a;t^