The enquirer (Richmond, Va.), 1807-06-15 00:00:00

Some important mistakes having occurred in the making up of a part of the proceedings, in the last Enquirer, we deem it due to the Counsel on both sides, to publish a correct copy of those proceedings. The mistake was not discovered, until one fourth of the last impression was struck off. This supplement will consequently be put into the hands of every Subscriber who received an incorrect copy of the last paper.
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.
Debate on the motion for a Subpoena Duces Tecum.
WEDNESDAY, June 10th.
Mr. Wickham would not enquire, whether it was the object of the gentlemen to have or to obtain time; though probably the last; as gentlemen seemed very solicitous to send on a messenger to Washington to obtain instructions directing them how to act; but if the saving of time was an object with the court, the course which he recommended was best calculated to obtain it. It was the shortest way to resort at once to that expedient, which must be at last employed, if the expectations of the attorney for the U. States, should turn out to be fallacious, and his application at Washington should prove to be unavailing. The clerk himself, if called upon for subpoenas, must issue them absolutely. It was the practice; and it was the law; but instead of applying to the clerk, they deemed it necessary in a case of such importance, to make their application directly to the court. They were more willing too to prefer this course; as they did not with the presence of the President; but only of certain papers; and it was not therefore their wish to obtain a common subpoena for his person, but a subpoena Duces Tecum for those papers.
This is the first time I have heard, since the Declaration of American Independence, that an accused man is not to obtain witnesses in his behalf. What has the gentleman himself done? Are there not witnesses present, whom he has summoned; under the authority of this court and at his own special instance? And will he at last admit, that there is to be no kind of equality between the accused and the prosecution; and that we are to remain here perfectly mute and bound hand and foot, to wait the decision of his own witnesses?
But at what time are we to be entitled to these privileges? At the period of Col. Burr's transportation? That is a most unwarrantable proceeding; there is no such force recognized by the constitution; and therefore there could be nothing in that constitution to give us the right of founding any judicial proceeding on such a step. But, Sir, such an illegal transaction entitles us to fill more, it entitles us to the protection of every citizen in the country; as well as of this court. Suppose that Col. Burr was now put on his examination; would he not have a right to examine any witnesses, who were beyond the bar; and of course to subpoena every man, who would be brought before you during the term of examination? This practice is every day pursued by magistrates. Why not in the present case?
It has been said, that there is nothing in this country to justify such an application; that there are no precedents. But I will quote, Sir, another trial, which was familiar in its proceedings, and similar, I trust, in its results. I refer to the cases of Smith and Ogden before the Circuit Court of New-York. Subpoenas were actually taken out, before the Trial, for Messrs. Madison and Dearborn: and even the expenses of their travelling were tendered to them. But the proceedings did not even stop here. For a motion for an attachment was made before the court, founded upon the proof of serving these Subpoenas; and the proof of offered compensation. The argument at length closed on this motion for attachment. But no man doubted the right of the court to issue Subpoenas. The only question was, whether at that time an attachment ought to issue. The court was unanimous about the right of Subpoenas; but on the attachment, they were divided; Judge Patterson being for it; and Judge Talmadge against it.
We are however asked, Sir, for what purpose do we wish to procure this evidence? It is at their option to say, whether bills shall be laid before the G. Jury or not. Granted, Sir, it is in the power of the attorney for the U. S. to send up his bills or not. But should these bills be found true, and the trial come on, may we not be ruled to trial, in absentia; and without the aid of our witnesses? But what was done the other day, may be hereafter repeated. Witnesses were introduced on behalf of the U. S. and others perhaps would have been; on the motion for a commitment. This motion is for the present only suspended. But if that be the case; may not the testimony now required be relevant to our defence? The attorney for the U. S. triumphantly declares, that we must do as he pleases; and that we know not what he intends to do. That is true, Sir; but may not we too do something? May not Col. Burr move for his discharge? As he is to remain here until the court pleases to discharge him, may he not move for his recognizance to be discharged? Have we no right also to all the means, which are necessary for the fair administration of justice?
"No time is stipulated for the return of the subpoena." This is a great difficulty indeed! It will be admitted, then, that the court has a right to issue a subpoena; and yet because there happens to be no particular provision about the day, this right must be necessarily null. But, Sir, is this objection really justified by practice? Has not the court a right to fix a day for the return of process of this sort; according to their own convenience; or the convenience of parties?
But why have we not applied for these documents sooner? Yes; Sir, it is asked of us, why we have not made this application sooner; and yet even now does the gentleman wish to delay it. He declared that we have made it too soon; and yet he now declares that we have made it too late. Now; it cannot be both; if it be too late, it certainly cannot be too soon.
We have heard some remarks upon Col. Burr's privileges; and among others, upon the four Counsellors who are to defend him. But what kind of an argument is this? If we turn to the Laws of Congress, we shall find there is one attorney for the U. S. appropriated to each district; And yet there are no less than three counsellors employed on the present occasion. No doubt there is a law providing for the payment of the two others out of the treasury; but with what propriety can these gentlemen complain of my client making such arrangements, as may suit his convenience or his interest? But what are all these remarks
to the Subpoena Duces Tecum? Sir, it is useless to multiply arguments on this subject. It is a settled rule; since the antient times of King John; since the formation of Magna Charta itself, that the accused has a right to Subpoena witnesses; & not only to any other form, but to Subpoena Duces Tecum, under such modifications as the court may please to prescribe.
Mr. Martin read an extract from the case of Smith and Ogden in New-York, about the issuing of an attachment. Mr. Hay asserted that this extract did not prove the position contended; that there was no case of a subpoena's having been issued, before the finding of an indictment; that if the clerk had ever issued them, it was a mere gratuitous act; and that he challenged the experienced gentleman from Maryland, to cite a single instance of an application to a court for subpoenas, before the finding of the bills.
Mr. Martin replied, that if there were no precedents on this very point, it was because this objection never was made before; and he hoped never would be made again.
Here a deftful conversation ensued; when Mr. Hay observed, that gentlemen seemed to believe that the present course pursued by the prosecution was dictated by a wish to suppress the evidence; that he conjured the gentlemen to remember, that he had voluntarily applied for the papers which they wanted; and had no doubt of obtaining them; and that he made these remarks to guard any human being from the suspicion that there was any indisposition to refuse the papers; that he should exert himself with not less zeal to obtain the evidence that was wanted for Col. Burr, than that which might be produced against him.
The Chief Justice observed, that he would not at present deliver any decided opinion upon the point, though he was disposed to believe, that the accused had a right to apply for subpoenas. He cited the case of a man, who had been some time before brought before him and condemned for counterfeiting bank notes; in this case the prisoner had attempted to delay the trial by pretending that he had witnesses in Baltimore; which plea had been rejected by the court, principally on the ground that he had not before summoned those witnesses. The Chief Justice however observed that he should not decide this question at present; but reserve it for future decision: In the mean time, the counsel might proceed with the other part of the argument.
Some conversation here ensued between Mr. Botts and Mr. Hay, on the interpretation of an act of Congress, in which the term "accused" was employed. Mr. Martin then rose to support the propriety of granting this particular subpoena.
He laid down as a general principle, in all civil or criminal cases, that every man had a right to process to establish his rights or his innocence. McNally's Evidence, Vol. 1. p. 255. Does there exist a single case in the British authorities in opposition to this doctrine? Surely these gentlemen do not intend to represent the president as a kind of sovereign; or as a king of G. Britain: He is no more than a servant of the people. But even the British king may be called upon to give testimony to his people. It is true he is not obliged to be subpoenaed; and to appear in a court of justice; but his testimony under his sign manual is received as authentic evidence.
Chief Justice. The counsel on the opposite side admit, that the President may be subpoenaed.
Mr. Martin. They have surely never admitted it before. However I am happy that it is now admitted; as it will spare me a part of my argument. I will proceed then to the others.
The next question is, whether the President can be summoned to attend with certain papers. One of them we want is an original letter from Gen. W. of the 21th October, and received by the President on the 27th of November. This letter (as appears by Col. Burr's affidavit) is considered by him as necessary to his defence; and his counsel so far as they understand the subject are of the same opinion. The other papers are copies of official orders by the navy and war departments. It may be said, Sir, that if application were made to those departments, Col. B. had a right to the papers: for we had supposed, that every citizen was entitled to such copies of official papers as are material to him. And I have never heard of but one instance where they were refused; and this was most certainly under presidential influence.
Mr. Randolph here enumerated the particulars of his own correspondence with Mr. R. Smith, Secretary of the navy.
Mr. Martin proceeded to the following effect:—I have asserted, that Col. Burr was entitled to a copy of these orders. We intended to show that these orders were contrary to the constitution and the laws, and that they entitled Col. Burr to the right of resistance. We intended to show, that by this particular order his property and his person were to be destroyed; yes, by these tyrannical orders the life and property of an innocent man were to be exposed to destruction. We did not expect these originals themselves; because they were gone out. But we did apply for copies; & were refused under Presidential instance. In New-York, on the farcical Trials of Ogden and Smith, the officers of the government, screened themselves from attending, under the sanction of the President's name. Perhaps the same farce may be repeated here; and it is for this reason that we apply directly to the P. of the U. S. Whether it would have been best to have applied to the secretaries of state, of the navy and war; I care not. All that we want, is, the copies of some papers; and the original of another.
This is a peculiar case, Sir. The President has undertaken to prejudice my client by declaring that 'of his guilt there can be no doubt. He has assumed to himself the knowledge of the supreme being himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country, which has rewarded him. He has let slip the dogs of war; the hell-hounds of persecution; to hunt down my friend. And would this President of the U. S. who has reaped all this absurd clamour, pretend to keep back the papers which are wanted for this trial; where life itself 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 for his defence. And whoever withholds this information, is substantially a murderer, and is to be recorded in the registers of Heaven—Can it
then be presumed, that the President would be sorry to have Col. Burr's innocence proved? No. It is impossible. Would the P. of the U. S. give his enemies (for enemies he has like other great and good men) would he give them the proud opportunity of saying that col. B. is the victim of anger, jealousy, and hatred? Will he not act with all possible candour: When told that certain papers are material to our defence, will not be proud to say to us "Sir, you may have them; I will grant you every possible advantage." Had this been done, the attorney for the U. States and perhaps the Executive, never would have said that these papers are no more material to us than the first paragraph of the laws of Congress. These gentlemen forget, that it is not their province to decide, whether the evidence is material to us or not. It is for the court to say, whether it bears upon the case; and whether it is to go before the Petit Jury, or to come before themselves, if the motion to commit for treason be continued.
They seem to think, that we are not even to be trusted with these papers. But why do they attribute motives to Col. B's counsel, which they would themselves disdain? Why not as much honour to ourselves, as to the President of the U. S. himself?
It may be suggested, that this is a private and confidential letter from Gen. W. to the President. It was so said, indeed, yesterday. But if the President were here himself, the court would have a right to demand, whether in confidential conversations Gen. W. had not given very different statements, from those which he might here produce? What, Sir, if Gen. W. had reposed as much confidence; if he had instilled as much poison into the ear of the President, as Satan himself breathed into the ear of Eve; the President would have been still responsible to a court of Justice. The law recognizes none of this kind of confidence. 2 Atkins 524, from which it appears that no man is privileged to withhold secrets.—11 St. T. Dutches of Kingston's case; there a physician entreated of the court to excuse him; but even his professional confidence would not screen him. Lord Barrington conjured them to excuse his giving in testimony, what had been disclosed to him in all the confidence of private friendship. All his solicitations were disregarded.—McNally, page 280, which declares that there can be no secrets, but those which are confided to counsellors and attorneys.
Now let us suppose, that this information was conveyed to him by a letter; nay, by a private and confidential letter. Could we not have the President produced here; could we not examine him, whether he had ever received such a letter?
But perhaps we shall be told, that this would be making too free with high characters; that we call the honour of Gen. W. into question; and that it is not less than treason to suppose it possible, that Gen. W. is not as pure as an Angel. But, Sir, will it be forgotten, that this man has already broken the constitution to support his violent measures; that he has already ground down the civil authorities into dust; and subjected all around him to a military despotism? It is possible to believe, that such a man may not swerve from the strict line of decorum? To show the ease with which one man may be destroyed by another man or by a faction; and with the same unfeeling indifference as a philosopher sees rats struggling in an air-pump; I will read a quotation from Tucker's Blackstone.
Mr. M. produced several instances, that even the originals of recorded papers may be brought before a court of justice.
Respecting copies of the navy orders for destroying the property and person of Col. B. it is very material to possess them. It may be necessary to show, that these acts, which the prosecutors are pleased to deem treasonable, were in fact nothing but justifiable means for defending his own rights.
(To be Continued.)
Latest Proceedings. The court have been occupied during the three last days, on the motion to obtain a Subpoena Duces Tecum, addressed to the President of the U. S.
We have detailed a part of the argument that was maintained on Wednesday on this subject. Mr. Martin was followed by Messrs. McCrae, Botts, Wirt and Wickham.
On Thursday the Grand Jury were adjourned over till Saturday: And the argument was resumed by Mr. Hay, who was succeeded by Mr. Randolph.
On Friday, the argument was continued by Mr. Martin and closed by Mr. Burr. The court have not yet given their decision, on this interesting point. Mr. Burr observed that as Gen. Wilkinson might now be expected in a short time, before the court, it was desirable to obtain a prompt decision.
On the conclusion of this argument, Mr. Burr addressed the court: he observed that this was perhaps the most proper time for renewing the motion, which he had some time ago made to the court, about giving more specific instructions to the Grand Jury, on certain points of evidence. These points he had reduced to writing in the form of abstract propositions, which he would take the liberty of reading to the court:
The following is a list of those propositions with the authorities cited to support them.
1. That the G. Jury cannot consistently with their oath find a Bill except on such testimony as would justify a petit Jury to find the prisoner guilty.
Foster 232 Sec. 8 3d Institute 25—2d Institute 384—Dalton 519—Judge Wilsons Works, Vol. 2d. 364—T. W. Williams Justice 3d. Vol. printed 1794—3d. State T. 419, 420 and Sir John Hawle's observations, 4 S. T. 183—4th Black. 302 to 306—2d Hale Chap. 8 Page 61—Wilsons Edition with Wilsons note—2d Hale Chap. 22 page 157 with Wilsons note—2d Hall Chap. 22 page 169 with Wilsons note Enomos Dici. 2d Sec. 39 page 124—5—6—State T. page 3—Foster, page 232 Sec. 8.
2. That no testimony or witness ought to go to the Grand Jury but what are legal and competent to support the charge about which the enquiry is made.
Danby's case, Leech 443 Chap. 187—Dodds case Leach 59 Chap. 77—Commonwealth of Virginia vs Hopkins, Warles and Daws before the G. Court at Williamsburg.
3. That the G. Jury cannot return a Bill for Treason for levying war against the U. S. unless they have two witnesses who swear to the overt act of the Treason laid in the indictment; both which witnesses are believed by them.
East's Crown Law Chap. 2d Sec. 64. That both must be believed. 3d State Trials page 55.
4. That there must be two witnesses to the Grand Jury of each overt act, follows also as a consequence from the former position, that they must have such testimony as would be requisite for the Petit Jury.
5. That the Grand Jury cannot find a Bill for Treason in consequence of any confessions made though proved by two witnesses.
Foster 241—3. 4 Black. Constitution of the U. S. Article 3d. Sec. 3—Graydon Dyett 11—Judge Iredells charge—Fries's Trial 171—172—East 96—97.
6. That as the Grand Jury only hear evidence on the part of the state, if upon that evidence they entertain a doubt of the truth of the charge, they ought not to find the Bill, as the presumption is ever in favor of innocence. 18. McNally 2 to 6.
7. No act of a third person can be given in evidence against the accused to prove him guilty of Treason, or of a misdemeanor under the law of 5th June 1794, unless that act is proved to have been committed by the advice, command, direction, or instigation of the accused, if done in his absence or if done in his presence unless it be proved that the accused was aiding or assisting.
An act shall bind a person connected with the A. & G. but the declaration shall not bind him because no part of the act.
McNally 615 to 616.
8. The declarations of others cannot be given in evidence on the present enquiry to support the charge of Treason or of a misdemeanor under the act of Congress 15th June 1794 unless it be proven that the accused was present and assented thereto.
East 96—in case of conspiracy confessions good against him who makes them but not against others. Peake B. Confess. Peake 7 Hearsey—Kelyng 18th McNally 40—41, Confessions of one cannot be read against others.
3d State Trial 574. A relation of what had been done no evidence. McNally 616.
Declarations of others is not evidence. 4 State Trial 192—196.
6 State Trials 218 in the presence of others, they acquiescing. McNally 621.
Mr. Hay opposed this proceeding. He contended, that the court had no right to give specific instructions to the Grand Jury, after they had been once generally charged by the court; that such a course was contrary to all law and all precedent, that not a single instance could be quoted to support it; and that there were cogent & in this instance particular reasons, why criminal prosecutions should be suffered to progress without these interruptions. He further contended, that the Chief Justice had anticipated such a situation; and that the language in his charge clearly indicated his expectation that bills would be laid before the Grand Jury on the ground of Treason; and that under this expectation, the Chief Justice had dilated on the nature of Treason, and given all the information which he thought material: that there was no reason at all, why A. Burr should enjoy greater privileges than any other man; why he should rake up all the old, noisy, and absurd doctrines of antiquity & have them enlisted in his service; & that he stood on the very same ground as any other man; that perhaps all the propositions on Mr. Burr's list would not be waiting at all; or if there should be any necessity for them, that these questions might be discussed as they successively arose; that these discussions would necessarily consume much of his own time as well as the time of the court, which might probably be devoted to more useful purposes: and after all, the Grand Jury might refuse to hear any instructions, and in that case, how could they be controuled by the court? If the Grand Jury determined to pay no regard to it, of what avail would be the recommendation of the court (for it was in fact no more?) And if they were to find according to their own opinions, and in the old way, how could the court know of this variation? And how could they rectify it?
Mr. Botts replied. He stated that the gentleman had demanded precedents; and yet it was but the other day when that very gentleman had enquired, why we so constantly resorted to precedents; and why we did not sometimes consult the principles of common sense: that the G. J. were not that lawless mob, which the gentleman had seemed to represent them; & that they would not certainly act against the law, when it was properly expounded to them by the head of the court; that although the Chief Justice's charge was extremely able, yet it was impossible that it could be so comprehensive as it might now be made, from the information which has since occurred; and that the very necessity of giving any charge at all, shewed the propriety of perfecting it; that it was not col. B's desire to consume much time, as it was his most earnest wish to end at once the bonds of recognizance and the public prejudice, which surrounded him: and that they were even willing to limit their share of the discussion to a particular time.
The Chief Justice said, that it was usual and the best course for the court to charge the Jury generally, at the commencement of the term, and to give their opinion on incidental points as they arose, when the Grand Jury, themselves, should apply to them for information; that it was manifestly improper to commit the opinion of the court on points, which might come before them, to be decided on the trial in chief; that he had generally confined his charges to a few general points, without launching into many details; one reason was, that some of the detailed points might never arise during the session of the Grand Jury, and any instruction on them, would of course, be unnecessary; another was, that some of these points might be extremely difficult to be decided, and would require an argument of Counsel; because there was no Judge or man, who would not often find the folly of meditations of his closet very much assisted by the discussions of others: that he would have had no difficulty, however, in expanding his charge, if he had been particularly requested to do it, or if he could have anticipated any necessity for it, and that he would have no difficulty in giving his opinion at this time on certain points, on which he could obtain a discussion by the counsel, provided he did not, thereby commit his opinion, on the trial in chief.
Mr. Burr, then requested him to inspect the list of propositions, which he had prepared; he might then determine which of those points would admit of the delivery of his opinion; and which would not.
This list is now in the possession of the court: and here the business rests for the present.