xt7k9882k173 https://exploreuk.uky.edu/dips/xt7k9882k173/data/mets.xml Burr, Aaron, 1756-1836 1808  books b9297348b94v22009 English Hopkins and Earle, Fry and Kammerer, printers : Philadelphia, Pa. Contact the Special Collections Research Center for information regarding rights and use of this collection. Burr Conspiracy, 1805-1807. Reports of the trials of Colonel Aaron Burr, (late vice president of the United States,) for treason, and for a misdemeanor, in preparing the means of a military expedition against Mexico, a territory of the King of Spain, with whom the United States were at peace. In the Circuit Court of the United States, held at the city of Richmond, in the district of Virginia, in the summer term of the year 1807. To which is added, an appendix, containing the arguments and evidence in support and defence of the motion afterwards made by the counsel for the United States, to commit A. Burr, H. Blannerhassett [!] and I. Smith to be sent for trial to the state of Kentucky, for treason or misdemeanor, alleged to be committed there. Taken in short hand by David Robertson. text Reports of the trials of Colonel Aaron Burr, (late vice president of the United States,) for treason, and for a misdemeanor, in preparing the means of a military expedition against Mexico, a territory of the King of Spain, with whom the United States were at peace. In the Circuit Court of the United States, held at the city of Richmond, in the district of Virginia, in the summer term of the year 1807. To which is added, an appendix, containing the arguments and evidence in support and defence of the motion afterwards made by the counsel for the United States, to commit A. Burr, H. Blannerhassett [!] and I. Smith to be sent for trial to the state of Kentucky, for treason or misdemeanor, alleged to be committed there. Taken in short hand by David Robertson. 1808 2009 true xt7k9882k173 section xt7k9882k173 

If thou art borrowed by a (riend Right welcome shall he be

To read, to study-not to lend, But to return to me.

Not that imparted knowledge doth Diminish learning's store;

But books, 1 find, when often lent, Return to me no more.

Go, then, my book, for friendship's sake,

Instruct, amuse--and be A treasure to my friend; then make A quick return to me.





and for


In preparing the means of a Military Expedition against Mexico, a territory of the King of Spain, with whom the United States were at peace.

IN the


Held at the City of Richmond, in the district of Virginia, in the Summer Term of the year 1807.





in  support and  defence of the motion afterwards made BY the counsel for the united states,


A. Burr, H. Blannerhassett and I. Smith,




ALLEGED TO BE COMMITTED THERE. taken in short hand


counsellor at law. IN TWO VOLUMES.....VOL. II.






Af TER Mr. Wickham closed his argument, oil Friday the 21st day of August, 1807, Mr. Hay stated, that he wished to examine the other witnesses, by whom he expected to prqve an overt act.

Israel Miller was then sworn.

Question by Mr. Hay   Were you on the island, Mr. Miller, with Blannerhassett and his party at the time charged in the indictment, the 10th of December last?

Answer. I arrived on the island between the 7th and 10th of December last, in company with colonel Tyler, who had four boats.

Question by the same. How many men had he with him? Answer. About thirtyrtwo men-Question by the same. What proportion of arms had they?

Answer. Five rifles and about three or four pairs of pistols are all that I know of. I joined them at Beaver and went down with them to Blannerhassett's island, and there I saw one blunderbuss, two pairs of pistols and one fusee. I do not know that there were any more.

Question by colonel Burr.   How many bullets did yo.u see run?

Answer. I only saw one man run bullets.

Purley Howe was then sworn.

Mr. Hay. Will you be pleased to say what you know of thr .party on the^island, their arms and conduct? Vol. II. ' A 
   Anstoer. I was not on the island during their stay on it. I was applied to, by Mr. Blannerhassett to make about forty boat-poles. On the evening of the 10th day of December, I went to the landing (on the Ohio side) to deliver them, being called upon to do so, and Blannerhassett sent his flat to receive them. In this flat were two sentinels, being two young men, each of them armed with a rifle.

Mr. Hay. State what you know of their arms on the island.

Mr. Howe^ I flung the poles down the bank and offered them assistance, but they said they had men enough. One of my neighbours, Mr. Allan Wood, wished to go over in the flat; biit they refused to take him, saying, they had orders not to let any person go with them from the Ohio side.

Question by Mr. Hay. Did you see any arms but the two rifles?

Answer. None but those in the hands of these two young men. One of them laid down his rifle in the bow of the flat, and stowed away the poles as they were handed in; while the other sat on the bow and held his rifle across his thighs, I saw men on the island for three or four days, who were said to be Tyler's or Blannerhassett's men.

Question by Mr. Mac Rae__Did you see those two men

who were guards leave the boats?

Answer. I did not: they staid there constantly.

Question by Mr. Mac Rae__Did you know these men?

Were they not all strangers to you except Peter Taylor?

Answer. They were.

Question by Mr. Burr to Mr. Miller. Did you see general Tupper there?

Answer. I did not see him, but I understood that he was there.

( Question by the same.   Did you see any disturbance live re?

Answer. No.

Question by the same. Were you with the boats alj the time?

Answer. I was.

Mr. Wirt.   Did you join this party there or come with them? 

Answer. I came from Beaver with them.

Mr. Edmund Randolph then addressed the court to the. following effect:

May it please your Honour,

I might be satisfied with what has been said by Mr. Wickham yesterday and to-day, as sufficient to open and fully explain the grounds of our application to the court; but on this occasion, my duty as counsel is fortified by my duty as a citizen, to combat and, if possible, refute the pernicious doctrines of constructive treason, which are attempted to be supported by the gentlemen on the other side.

The evidence brings us fairly to four points, which I shall submit, in the form of questions, to the consideration of the court.

First. Whether there can be treason in levying war without the employment of force.

Secondly. Whether, under the constitution of the United States, a person, who it is admitted would be an accessory in felony, can be considered as a principal in treason in levying war.

Thirdly. Whether, under the farm of this indictment, charging colonel Burr with having done the act personally, any evidence of a derivative or accessorial agency can be admitted.

Fourthly. And if such evidence of a derivative or accessor rial treason were to be admitted, under this indictment, whether the real principal ought not to be first convicted.

First. I contend, that there can be no treason without the exercise of actual force.

We make no dereliction of the plea of innocence, which the law presumes as a safeguard to life. The counsel would fail in their duty to their country, as good citizens, if they were to waive this defence, which is so strongly connected with the public safety. This high ground of presumptive innocence, which the law has granted to us, should be defended for the public safety, and for the purpose of fixing and preserving those great principles, without which it cannot exist.

The law of treason should be clearly understood, and the regulations and rules concerning it well ascertained; for, as Montesquieu has justly observed, if the doctrine of treason be indeterminate in any country, hpwever free its form of government, it is sufficient to make it degenerate into tyranny. There is no reason to believe that it would be otherwise in our country, as Mr. Hay would persuade us, (though I believe its government the best on earth) for I am told by the framers of the constitution, that they have prevented that very evil from hap. 
   pefiing by fixing precise terms in that instrument; that they have bound down the legislature by special words descriptive of treason, and erected a barrier beyond which they cannot depart by any construction, and thus prescribed limits, from their jealousy of man even clothed with legislative honours. Every man takes a personal interest in the affairs of his country, and is alarmed at the name of treason. Of this we find a confirmation in. the declaration of Mr. Jefferson, that colonel Burr was guilty. That declaration excited the utmost alarm throughout the country. This appears still more fully confirmed by the examination of the persons summoned as grand and petit jurors. From the examination of those who are to sit on this occasion, and those who were selected for that purpose but excluded, it is manifest that the prejudices excited by this alarm have almost overwhelmed the whole country. If it were necessary to go into a full examination of this subject, it would appear from a general scope of the history of the world, that if the doctrine of treason be not kept within precise limits, but be left vague and undefined, it gives the triumphant party the means of subjecting and destroying the other; means which may be too readily and eagerly employed.

If the law of treason ought not to be left unfixed or uncertain, there ought to be no treason in levying war, without the employment of force; for if force be dispensed with, it will be extremely uncertain and dependent on the will of the government. It was intimated the other day by the gentlemen on the other side, that we had a definition of treason in levying war given by the supreme court, in the case of Bollman and Swart-wout; and that it consisted in inlisting and assembling men, without the exertion of any force.

I should yield to the decided and still acknowledged good sense of the judiciary; because that corps is, in my estimation, the palladium of individual safety. I should do so with the greater cheerfulness because those who compose it are individuals who are studious to avoid, averse to repeat and never unwilling to recant error.

Sir, may I be indulged with one remark, which may perhaps seem too strong: I should be deceived for more than twenty years with respect to him who delivered that opinion, if he would hazard a stain on the sword of justice by such a construction' of the law of treason as has been given by the gentleman on the other side. Yes sir, I do say, that this cannot be the language and sentiment of the supreme court. For, first, the point was not discussed, nor necessary to be discussed; and what was said concerning it, was therefore extrajudicial,. 

What were BoHman and Swartwout charged with? They were charged with treason generally; but it was well ascertained, that there was no evidence of actual force in levying war, and therefore it was unnecessary to pay any attention to that subject. The decision on this point, if there were any such, was extrajudicial; for whatever it determined, on every thing not submitted to its decision, was so pro hac vice. But what if it had been so decided? Would it be contended that we must adhere to it? Uniformity of rules is sometimes attempted to be preserved in civil matters; and experience has proved that provided the law be established in matters of property, it is immaterial what it is, as rules of property are mostly mere creatures of society; but when we come to speak of human rights, of questions affecting the principles of civil liberty, no judge will be opposed to reconsider the subject merely because he has once given an opinion on it. A precedent hastily adopted may produce the most destructive consequences. A just theory ought to be sought in order to make government a protector, not a Moloch. The manes and family of one unrighteously condemned ought not to be appeased by the sacrifice of another. Even in regard to civil matters, in mere questions of property, our court of appeals does not only not bind itself by one decision, but even permits its subordinate tribunals to reexamine points in which there has been but a single decision. If it were otherwise, especially in criminal cases, error would beget error, and one wave of injustice would succeed another, till our land should be overwhelmed and unfit for the habitation of human libertv. But if the language of the supreme court were ever so explicit and invperious,*but now found to be incorrect, as applied to this case, how are you to proceed? Aware that you are a subordinate tribunal, and that there exists that relation between you and the supreme court, which public utility requires, you would wish to conform to the principles of its decisions: but what species of subordination is required? Surely not a sanguinary one. I do not believe that there is a subordinate court in the United States, that, if once impressed that a wrong sentence was given against the accused, would not see in a moment that in conforming to it, it would lie made an instrument of injustice against its own conscience. What are you to do? I know not. I do not, I dare not ask you to rebel nor prescribe what you should do; but let us pray Heaven to stay the arm of the destroying angel. Sir, I contend that with regard to that decision, it ought not to affect the question now before the court:  for elementary principles drawn from one case, so as to influence another, depend upon similitude of facts; and if drawn from one case, the most per- 

feet similitude ought to be shewn. Will gentlemen examine the case of Bollman and Swartwout and compare it with the case of colonel Burr? Is there any resemblance between them? It is indispensable that general expressions in that or any other opinion be taken with reference to the particular facts and questions then under consideration. What precedent is ever drawn from a dissimilar case? It was contended in Bollman and Swartwout, that there was no military force, or military assemblage, and therefore it was unnecessary to inquire whether force were indispensable to the consummation of treason. The court finding no probable cause of fact, without mischief to Bollman and Swartwout, extended its positions beyond the degree commensurate with the case: but I deny that it extended them as far as the counsel for the prosecution insist. It did not intend to write a treatise on the subject. It had no assistance from the bar. The principle now under consideration was not discussed. No authorities were adduced from other cases, to lead the decision of that case: and what difference is there between the supreme court and inferior courts, but this, that in the rriore elevated parts of the atmosphere, the rays which proceed from the sun of justice should come to us with less refraction?

Secondly. The opinion of the supreme court, as it is understood by the gentlemen on the other side, is inconsistent with itself; because it refers for support to the opinions of judges Patterson, Iredell and Chase, and the latter's more particularly. This opinion of die supreme court declares that " in conformitv to the principles now laid down, have been the decisions heretofore made by the judges of the United States. The opinions given by judges Patterson and Iredell, in cases before them, imply an actual assembling of men, though they rather designed to remark on the purpose to which the force was to be applied, than on the nature of the force itself. Their opinions, however, contemplate the actual employment of force? How can the opinions of judges Iredell and Patterson support the declaration, that a mere assemblage of men, without actual force, shall constitute treason, when they " contemplate the actual employment of force?"

But the opinion of the supreme court refers more particularly to that of judge Chase. " Judge Chase, in the trial of Fries, was more explicit. He stated the opinion of the court