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looking at the indictment, can answer in these words, ore tenus.
Col. Carrington, one of the Jury. It was understood as a full verdict of acquittal.
Mr. Parker, another of the Jury. If I am sent back, I certain.. ly shall give the same verdict as is now returned, and in the same words. We all know that the verdict was not etrictly con. sistent with the usual form, but as this was more satisfactory to us, so we have returned it, and I cannot agree to alter it,
Mr. Burr. I shall insist that the verdict shall be given in such a way as is prescribed by law, and no otherwise. The Jury must alter it, to bring it within the forms of law; they may write whatever they please upon any other paper, but let it not be made a matter of record. I pray that they may have the privilege of altering it; or, if not, that the words may be erased from the indictment.
Mr. Hay mentioned a circumstance in which some words were written on an indictment in addition to the bare verdict. The Jury insisted upon their continuance, in opposition to the arguments of counscl; and the Court directed that a general verdict should be entered on the record.
The Court decided that the words should remain on the indictment, and that the general verdict of not guilty," should be entered on the record. If the Jury insisted upon their verdict retaining the form in which they had inserted it, the Court could not reject it.
Proclamation was then made by the Clerk, but Mr. Burr observed, that he should not move for his dicharge until to
Mr. Hay informed the Court that the counsel for the United States had not determined on the course which they should pursue-whether to proceed to the trial of Aaron Burr on the indictment for misdemeanor ; or whether they should now move the Court to commit him for trial in Kentucky, in which State an overt act is said to have been committed, (at the mouth of Cumberland.) It was necessary to take time to consult on that subject.
Jonathan Daylon (against whom a bill for treason committed on Blannerhusset's island was returited by the Grand Jury; and also another for misdemeanor at the same place) appeared in Court An affidavit was exhibited to prove that he was not at the island at the time charged in the indietment: a nolle prosequi was eutered on the indictment for treason; and he was held to bail with two surețies in 10,000 dollars; to appear from time to time to answer the indictment for misdemeanor if it should be called up.
WEDNESDAY September .. Mr. Hay. I have examined the opinion of the Court, Sir, and I am desirous of conducting myself in conformity to it: but I wish to know whether my understanding of it is correct or not. According to my construction of that opinion, it amounts to this.no that the evidence of the transactions on Blannerhasset's island does not come up to what is denominated levying war against the United States. I consider that opinion as settled; and, if so, it
(5) is not necessary to go on with the prosecutions against Blannerkasset and Smith, upon the indictments as they now stand. I shall not encounter the opinion of the Court, nor press upon a Sury what the Court says does not amount to levying war. I shall therefore consider it necessarily my duty to euter a noile prosequi on each indictment for treason, as it will be improper for them to go through a trial here and elsewhere, under these circumstances. I presume an application, for their being sent to the place where they did commit the overt act will be correct.
Chief Justice. Undoubtedly the Court intended to decide, in that opinion, that the particular acts proved to have been committed on Blannerhasset's island, did not amount to the overt/ act of levying war: but the Court did not intend that the opinion should apply to the facts in any particular case: they only wished to give such a statement of the law as to enable the Jury to apply the proper facts proven, and it was then the province of the Jury to say whether the treason had been committed or not.
Mr. Hay. That being the case, Sir, I consider it my duty to regulate my conduct in conformity with it. I shall therefore move the Court to commit them (Blannerbasset and Smith) and also the person who now stands before the Court (Burr) in order that they should be tried in that place where the crime can be established and proved on them. I move that Mr. Blannerhasset and Mr. Smith be brought into Court, and that the whole evidence may be gone into, as the facts will affect them all.
The Court agreed that they should be brought up.
Mr. Burr. Before the court make any order upon the subject, I beg it to be observed, that it is proper a distinct motion should be made against each individual : at least, that the motion against me may
be taken up separately; for otherwise a confusion must necessarily be produced; the testimony against one may be said to be testimony against another, and thus one will be charged with what may be called another man's crimes. Again. I wish also, that there should be a specification of the place to which these charges are meant to be applied, that I may have the better opportunity of meeting the testimony.
Mr. Hay. I do not know that I am bound to afford this speci. fication, but I am willing to do it as far as I am able. I have not been very minute in the examination of witnesses : but I am told that there was such an assemblage of men at the mouth of the Cumberland, as, by their numbers and theiracts would constitute an overt act of levying war. That all along down the river Ohio and the Mississippi, their forces, their military array, and warlike position were kept up, and that their numbers and accoutrements were gradually increasing till the time of their utter dispersion. It also appears that Mr. Burr was there with them, and that he was the very soul of the expedition. It will be the province of the Court, after the evidence is examined, to say whether he has committed the overt act or not, and whether such proof shall be produced as to justify their being sent to Kentucky, if the crime was committed there, or wherever the crime was committed. I confess, Sir, that I make this motion with great reluctance : but from the evidence which has come to my view, it is a course which my conscience has printed out as a
very proper one, and one which I am bound to make, having a proper regard to the opinion of the Court.
I understand, Sir, the form of the motion is objected to, and that Mr. Burr thinks he ought not to be blended with the other two; but certainly there can be no difficulty in separating the testimony in such a way as to distinguish each man's acts, and to appropriate them to him solely. The propriety of examining the cases at once is obvious: if the motions are made separate, the evidence must have to be three times given, which will occasion immense delay. It is apprehended that it will be attended with confusion; but this is not likely ; for however chaotic and mixed the testimony will be, the Court can make the proper application to the several persons, and the trouble and difficulty will be less than if there is a separate examination. I have chosen this as the most expedient way; I may, however, be mistaken. I believe that the evidence given respecting one will bear much about the same on the others, because they were all sent; all engaged at the same time, and having all the same object in view. Col. Burr was at the mouth of Cumberland where he was joined by Blannerhasset and Smith, and they all departed down towards their destination together. If it be the pleasure of the Court to require distinct motions, I shall submit.
Mr. Burr. There will be no occasion of repeating the evidence three times, nor perhaps at all, because, the same évidence after the case is gone through in the motion on one, can be taken out, so far as it might apply, to another, and be applied by the Court. There may be much of the evidence that might bear upon the other gentlemen which might not at all bear upon me, and vice versa. It certainly would be more clear and easy to examine separately.
Mr. Botts. If I understand Mr. Hay aright, his proposition extends to no less than this: that he should have the whole range of the river presented to the Court, to support his prosecution, and no less than three persons to be the subject of the same motion ? Now, Sir, if there is no law, no precedent to be found, to regulate the Court, yet it certainly is the duty of the Court to enquire whether the cases are analagous; and, upon investigation, I am confident, that it will appear obvious, that they do materially differ. They differ both upon legal ground, and upon the ground of evidence. If the case should be brought forward, in the distinct acts of the individuals, each will know to what charges he has to answer ; but, if they are combined, I thinkthe evidence itself will subject Mr. Hay to ridicule, even to the acknowledgement of himself; because, instead of an overt act of treason, in levying war, it will be discovered to be a covert act of peace. Added to this, it is a fact, that there are separate Counsel concerned in the severel cases; and the examination ought to assume the same shape as any regular prosecution. The unity of the assemblage has not been made to appear ; and a number of collateral objects will present themselves. Applying this principle, Sir, what would the Court say to the prosecution “You must charge each one specifically : the cases cannot be united without the consent of all."
Mr. Wickham. Col. Burr has been tried for treason against the United States, and a Jury have given a verdict of Not Guilty. He is consequently entitled to his discharge, although he has not yet moved for it. But there are still indictments pending against the other gentlemen. The charge against him has been falsified by the verdict of a Jury ; and he is to be considered as an innocent man.
He has not complained loudly, to be sure, of the situation in which he finds hijnselt placed but it must be obvious, that he would not feel himself in a pleasant situation, when a motion is made to embrace him with the other gentlemen. The eircumstance of his being found not guilty, varies the case immensely.
Again. There are different counsel employed. There is learned counsel employed for Mr. Smith, who, has not yet appeared, and who, for ought we know, may take a very different ground from what we have taken for Col. Burr. Added to this, is the differept circumstances of the cases : the whole length of Ohio, and other extent, amounting to fifteen hundreil miles, is embraced by the prosecutor, as the scene of action ; at a part of which, it has been proved, one of the parties was not present. If any person is charged with a high crime, such as treason, or felony, the prosecutor is always obliged to specity some place, as well as time, where and when the crime is al. leged to have been committed ; and the combination of persons dilterently situated, cannot be admitted.
Chief Justice. With respect to any distinction, which is produced by a verdict of not guilty ; that is a question of law, and not of fact, and consequently cannot blend the cases, because that verdict only extended to one of the persons: it is, so far, unimportant whether the facts are blended or not, because that distinction can, at any period of the examination, be discussed: Upon the question of a general charge, I conceive the law to be, that any specific charge might be made against any individual ; or he might be charged generally, and if a crime shall be found against him within the United States, he may be committed by the examining Judge ; and it is, afterwards, the duty of the district Judge to remove him for trial to the place, where it shall appear
the crime was committed. With respect to the question of examining into the three cases at once, or distinctly, depends upon the analogy of the cases themselves; and of the applicancy of the testimony to each case. It may, in some circumstances be proper, and is sometimes done : for instance, the Grand Jury, often find a joint bill; but I do not know that more than one has ever been tried under one indictment, without their own consent. [Mr. Randolph-never.] I rather suppose not. In every case of examination, the testimony must be applied to the person charged, otherwise he cannot be at fected by it, let its weight be what it might. It would be a wanton waste of time to repeat the same testimony; and, if all the persons accused are in Court at the time of its relation, I can see no possible disadvantage either one can sustain, for the whole being gone through in relation to the three ; but the Court would i-acur disadvantage by a repetition of the same evidence.
Col. Burr said there could be no doubt but that there could not
be a joint trial without consent of parties.
The Chirf Justice mentioned a difficulty which he did not know how the Court could get over. Col. Burr was now in custody of the marshal, and bound to answer an indictment for a misdemean. or. He did not know how he could be taken out of that custody and sent to a foreign jurisdiction for trial of another offence,
Ms. Hay. I shall make the motion to the Court, and leave it to the Court to decide.
Chief Justice said he did not know how he could do it.
up on to decide, and the difficulty presents itself, I will remove it. I do not expect to untie the knot, but I can cut it.
Mr. Wickham contended, that the difficulty should be removed in the first instance. Col. Burr was now in custody.
Mr. Hay observed, that it was obvious the question did not occur till the Court was called upon to transmit the accused. Then the difficulty will present itself, and rot before.
Mr. Botts said, the subject presented two questions, one to commit, and the other to transmit to a foreign Court.
Which was the most regular, in the order of proceedings ? Surely the commitment. Suppose Col Burr had been in custody, and bound to answer in another Court-Could this Court act upon him till he was discharged from his prosecution there?
Mr. Wirt. When the motion comes on, we shall be able to answer to the gentleman's observations.
Chi•f Justice. The motion is, he being already committed, and in custody, to charge him with the crime of an high misde
Mr. Hay. It appears to me, Sir, that it is your province to commit; but if there is a removal called for, according to the act of Congress, it is the duty of the district Judge to transmit to any other place, where the crime might have been committed, upon a motion made to that effect. If he should decide that he cannot transmit the prisoner, circumstanced as he is, we are prepared to argue upon it.
Mr. Wickham. The process is to arrest Col. Burr. He is here in Court. The motion is made to commit, when he is already committed, and in custody; and whilst he stands here, charged with a crime, he cannot be removed. Suppose he is acquitted in the place where he is sent to, is he to be discharged ? No, Sir : he is to be sent back to Virginia, to be tried for the charge yet remaining:
As to the district Judge, I do not know that he has any directions whatever : it is for this Court to judge: this is the prior jurisdiction ; the motion is made to commit; he is committed ; and here he stands, amenable to the charge. The Court have jurisdiction over the offence. It might be nothing to the government to keep a man here, who has, at their pleasure, been detained, month after month ; and forced to travel from the Mississippi Territory to this place; because it was, perhaps, thought the fitest place to try him. I will not say, that such a length of imprisonment, a journey of twelve hundred miles, or the verdict of a Jury, could be a death to Col. Burr : but I will say that it would be death to any gentleman, whom the government