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VOL. IV. No. 206]
Three dollars per annum.) PUBLISHED BY GEO: F. RANDOLPH, NORTH BROAD-STREET. (Half in advance •
TRIAL of COLONEL BURR.
FEDERAL COURT.
Wednesday, June 10.
An uncommonly animated and elo
quent discussion commenced on the
subject of Col. Burr’s motion for a writ
of subfuena duces tecum, to summon the
President of the United States to pro
duce as evidence of the original letter
of Gen. Wilkinson (dated the 21st clay
of October, 1806 and referred to in his
message to Congress in January last;)
together with copies of the orders which
were issued by his directions to the
naval and military officers of the Unit
" ed States, commanding them to sup
press the conspiracy imputed to Aaron
Burr.
Mi. Huy contended that a prelimi
nary question ought to he decided ;
whether in the, situation in which Col.
Burr now stands, before any bill of in
dictment ha 6 been found against him,
he could, as a matter of right, move
lor any subpoenas for witnesses in his
favor. He stated that he had written
to the President, requesting him to
send on the documents which were
wanted; and he doubted not they would
be furnished. But as the gentlemen
on the other side insisted on the sub
poena duces tecum as a process to
which they had a right , and founded
their motion on a supposition that the
President would refuse those docu
ments he would, examine the founda
tion of'ttoetaight for which they con
tended-
Tire court consented that the previ
ous question should be first discussed.
Mr/Jiay^o pened the debate, and en
deavored to demonstrate that the mo
tion made by Col. Burr was prema
ture. He laid down this broad propo
sition that no person accused lias a
right to subpoenas until he is on his tri
al, that is, Until the grancPjury have
found a bill ot indictment against him.
In order to show the prematurity of
the motion, he asked, if the President
was actually summoned and attended,
what could be done with his evidence ?
It could not be used unless the trial
should come on ; unless the bills of in
dictment should be found true bills..
Mr. Wickham on the other side, in
sisted that the motion was only made
through a spirit of accommodation, for
the clerk was bound to issue the sub
poena at the request of Col. Burr. — He
declared that this was the first time he
had ever known the doctrine advanced,
that a person accused was not entitled
to subpoenas for his witnesses.
Mr. Bolts read an act of Congress
which proves the right of a person ac
cused as well as of a person indicted to
have subpoenas.
The court seemed inclined to decide
the point against Mr. Hay; but desir
ed it to be reserved as a part of the ar
gument on the main question, in the
opinion of the court on which the pre
vious question would be involved; and
directed Col. Burr’s counsel to com
mence their argument in support of
their motion for a subpoena duces te
cu-Vn to the President of the United
States.
Mr. Martin delivered a very animat
ed harangue. It consisted in a great
measure of impassioned declamation
on the wrongs which he alleged Col.
Burr had sustained, intermingled with
sarcastick insinuations against Gen.
Wilkinson and the President of the
United States.
With respect ’td Wilkinson’s letter
to the President, he said it was wanted
to confront him in case he should be
introduced as a witness, and to show
that he had given contradictory state
ments at different times concerning
Burr’s transactions : that the affi
davit filed !>y Col. Burr in support of
his motion was sufficient together with
the opinion of his counsel, that the let
ter was material to authorize him to
demand its production. As to the or
ders which the President had issued ;
he' admitted that they might have ap
plied for copies of those official copies,
and that every citizen had a right to
demand them without applying for a
writ of subpoena duces tecum; but that
the Secretary of the Navy (he presum-
AUGUSTA, GEORGIA.
ed by the President’s directions,) had j
refused those for which he had been *
applied to, and the other Secretaries
would probably act in the same man
ner. The process desired was there
fore necessary to obtain them.—The
object for which they were wanting he
candidly stated to be to show that those
orders were illegal, unconstitutional, ar
bitrary and oppressive ; that Col. Burr
had a right to resist them ; and that the
armed assemblage of men under his com
mand, (if such an assemblage ever exist
ed) was only for purposes of self defence
and resistance to oppression !
Mr. Martin farther stated that the
opposition of the counsel for the U.
States to this motion would leave an
impression on the publick mind that
the President would be sorry if Col.
Burr should prove to be innocent, be
cause he had in his address to congress,
prejudged and declared him guilty ; that
he had denounced him as a traitor, and
let loose against him the bloodhounds of
persecution, and hunted him into the
toils ; that the President had himself oc
casioned all the clamour against him,
and ought not to be permitted to with
hold any papers which might vindicate
a citizen whose life was in danger ; that,
if he did withhold them, and Col. Burr
should be condemned) he would be a
murderer, and so recorded in the regis
ter above.
He sfcid that he doubted Whether the
testiqMpy of Gen. Wilkinson would be
cornaw; that he had already violated
his oath to support the constitution, and
was interested to establish the guilt of
Burr to excuse himself. It was there
fore peculiarly necessary to confront
him with bis letter.
Mr. Martin, also observed that any
inconvenience which might attend the
production of these papers ought to be
disregarded ; because the law g.tve Col.
Burr a right to demand them. But in
fact, there would be no inconvenience.
—They did not want the personal atten
dance of the President: he might com
ply with the subpoena by sending the
original letter, and the copies required.
Mr. Botts next spoke, and was follow
ed iby Mr. Wirt on Wednesday, by
Messrs, Hay and Randolph on Thurs
day, and by Mr. Martin again on Fri
day.
MM
SATURbAV, June 13th.
Mr. Burr thought it proper to men
tion, that his counsel had understood,
that a supplemental charge had been
written by the court: that it had been
put into the hands of the Attorney of
the United States, and that it was to be
shown to his own counsel, before it was
delivered. From the want of time,
however, or from some other cause, it
had not yet been submitted to his coun
sel. The court had yesterday request
ed a copy of his propositions, that they
might judge of their application ; and
if satisfied on that point, that they
might give additional instructions to
the jury. His counsel had complied
with the request: and though it was
not possible for the court at first to
have perceived whether a supplemen
tal charge was necessary, yet it had
now appeared from the whole course
of the argument, that each of his pro
positions would come before the grand
jury. If the court was satisfied on the
law, they would of certainty instruct
the jury on such points as seemed in
evitably to come before them : But if
they had any doubts on the law, they
would certainly require an argument;
and that he was then ready to demon
strate the truth of each of the proposi
tions which he had submitted. He
should make no remarks on the con
sumption of time, of which gentlemen
made so many complaints ; he should
only observe, that three weeks ago he
was ready to argue these points. But
he was even willing to limit the time to
be employed upon the present argu
ment; even to a certain number of min
utes ; he was even willing to argue the
points in the way of notes submitted to
the court.
- Chief Justice stated that he had drawn
i up a supplemental charge, which he
: had submitted to the attorney for the
• U. S.; with a request that it should
—-a-- ■ m „„ fl-, -1— — 1
j also be put into the hands of col. li's
counsel; that Mr. Hay had however
informed him in the conversation which
he had just had with him, that he had
been too much occupied himself, to in
spect tlie charge with attention, and
deliver it to the opposite counsel; hut
another reason was that there was one
point in the charge which he did not
fully approve. He should not there
fore deliver his charge at present; and
should reserve it until Monday. In the
mean time col. B’s counsel would have
an opportunity of inspecting it; —and
an argument might be held on the
points which had produced an objecti
on from the attorney for the United
States.
Mr. E. Randolph. Is it the wish of
the court that tlie argument should he
carried on orally or in writing ?
C. Justice. lam willing to hear the
re marks on both sides in writing.
Mr. tiny objected to this method
from the excessive labor which it would
impose upon them either way.—The
Chief Justice declared that it was per
fectly indifferent to him. Mr. Alartin
assured the court that it Was perfectly
convenient to him to argue the point
either orally or in wiling Mr. Wick
ham stated, ( that the Attorney for tin-
U. S. wished to ohji cl to certain pro
positions which Col. B. had submitted
to the court; that he was ready to go
into this discussion immediately ; that
the Attorney for the U. b. preferred an
argument orally before the court to
one in writing ; and that this was in
fact, the very course which col. Burr’s
counsel had first recommended. Mr.
W. hoped that tins supplemental charge
would be given to the jury, before the
witnesses were sent up; that the coun
sel for tlie prosecution preferred the
contrary, hut certainly the most impro
per course;
The Chief Justice observed that the
court would also have wished that the
charge should have been delivered, be
fore the witnesses Were sent up: but
that it was almost indifferent to him,
whether the testimony w r as submitted
to the grand jury before or after the
delivery of the charge; that it was of
ten the custom for the petit jury itself
to hear the testimony before the law
was expounded; and the same practice
might extend to the grand jury ; for
it was extremely easy for them, after
they had heard the testimony to apply
the instructions of the court and distin
guish those parts which were admissi
ble from those that were not so. It
was not for instance absolutely neces
sary for them to know, previous to the
delivery of tlie charge, that two witnes
ses were necessary to prove the overt
act even before a grand jury. When
the charge had been delivered ; that
principle would apply to the testimony
which they had actually heard : and
though it was desirablt that the charge
should precede the testimony, yet it
was not so essential as to interrupt the
proceedings.
The discussion of this question was
at length waved ; when the Chief Jus
tice delivered his opinion on tlie motion
to issue a subpoena Duces Tecum direct
ed to the P. U. S.
When tlie Chief Justice had con
cluded his opinion, Mr. M‘Rae addres
sed the court to the following effect: I
hope, sir, that I have misunderstood an
expression, which has just fallen from
your honor; but the opinions of those
gentlemen, who are near me, complete
ly confirm my own conceptions. Your
honor lias declared, if 1 mistake not,
that “ if tlie present prosecution termi
nates as is wished, on the part of the
United Slates." I hope, sir, that no
thing has appeared in my conduct, no
thing in the conduct of the gentlemen
who are associated with me on the pre
sent occasion, and nothing in the con
duct of the government, to produce
such a conviction in the breast of the
court. Permit me, sir, to assure this
court, if we feel any sentiment all, that
it is one of a very different description.
The impression which has been thus
conveyed by the couvt, that we not on
ly wished to have A. Burr accused, but
that we wished to convict him, is com
pleatly abhorrent to our feelings. We
SATURDAY, JULY 4, 1807.
**■'-*■' - n j—
trust that it has rather accidentally fall
en from the pen of your honor, than
that it is your deliberate opinion. We
wish for nothing, sir, but a fair and
competent investigation of this case.
It is far from our wishes, that A. Burr
should be convicted but upon the most
satisfactory evidence. And let me as
sure this court, that nothing would
more severely Wound my feelings, than
if you or il any other man should sup
pose it possible that 1 lyysclf or the:
gentlemen with whom I am associat
ed, or the government which we have
the honor to represent, should at all
events desire tlie conviction of the pri-
I sotler.
The Chief Justice rep’ied, that it
was hot his intention to insinuate that
the Attornies for the prosecution or
that the administration, had ever wish*
' ed the conviction of col. B. w hether he
was guilty or innocent; that his asser
tion was this: gentlemen had so often
and so uniformly asserted that Col. B.
was guilty, and they had so often re
pealed it before the testimony was per
ceived on which that guilt could alone
be substantiated, that it appeared to
him probable, that they were* not indif
ferent on the subject. 9
Mr. Hay asked whether he might
not send tip the witnesses to the grand
jury ? Mr. Burr then pressed upon
the court the necessity of giving the
supplemental charge ; tbi t it would be •
ol considerable benefit in instructing
the jury to stbe'rate jyhat was proper
(hi the- tvidc-nfe from whTtvns t fit pro*
1 per: that if the charge \f is not deUvi-r
--ed for several ddj's, jury might in
the mean time lit r.ceirit g wry f.dse
impressions l ; and that their hiind might
he so completely involved in these im
pressions, that it wouftf be impossible
for them to sip.yte them from their
decisions, even „Ryr the d livery of lire
charge. He epnrcfvtcl that tf.e-’couit
ought either to piVYuit the witnesses
from going to the grand jury, or to de
liver iis supplemental charge The
Chief Justice replied that on Monday
morning lie would deliver the charge,
if all the necessary preliminary points
could be settled.
Mr. Hay then requested the clerk to
swear, four of the witnesses. Thomas
Truxton, Win. Raton, Benjamin Stod
dei t and Stephen Decatur were accord
ingly sworn and conducted to the jury-
Vuottv.
Mi. Burr hoped that the cnUrt would
immediately take up the supplemental
charge to the jury. What was the ob
jection which the attorney for the U. S.
has submitted to your honor, and on
which you seemed to entertain some
doubts ?
Chief Justice. It is, whether the sta
tute of Edward VI. was now in force in
this country. Mr. Randolph. We are
ready on that point sir.
The Clerk then proceeded tt> call
four other w itnesses to the Book ; but
when Erick Hoffman appeared, Mr.
Hay addressed the court to the follow
ing effect:
Before Mr. Bollmati is sworn, I must
inform the court of a particular, and
not immaterial circumstance. He, sir*
has made a full communication to the
government, of the plans, the designs,
and views of A. Burr. As these com*
munications might criminate Dr. Bell
man before the grand jury, the Presi
dent ot the U. S. has communicated t®
me this pardon (holding it In his hand)
which I have already offered to Dr. B.
He received it in a very hesitating man
ner ; and I think informed me that he
knew not whether he should or should
not accept it. lie took. it from me
however, as he informed n e for the
purpose of taking advice of counsel-
He returned it in the same hesitating
manner: lie would neither positively
accept nor refuse it. My own opinion
is that Dr. B. cannot under the’se cir
cumstances possibly criminate hittiself. ,
This pardon will compleatly exonerat g
him from all the penalties of the lav
I believe his evidence to he extreme im
material. In the presence of this Cot ,rt
I offer this pardon to him, and if he re
fuses, I shall deposit it with the Cl c rk
for his use.—-Will you, sir, (addr