CHAP. V.]

ACQUITTAL-TRIAL FOR MISDEMEANOR.

215

those overt acts, as laid in the indictment, were proved to the satisfaction of the court. The court pronounced its opinion August 31st, sustaining the motion and submitting the case at that stage to the jury. This amounted in effect to a direction to acquit the prisoner on that charge.

The jury retired, and in a few minutes returned with the following verdict: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty." Burr and his counsel objected to the verdict as unusual and irregular, and the former moved that the court "either send back the jury to alter it or correct it itself." Mr. Parker, one of the jury, said: "if he were to be sent back he would find the same verdict; that they all knew that it was not in the usual form; but it was more satisfactory to the jury as they found it; and that he would not agree to alter it." The court decided the verdict should remain as found, and that an entry should be made on the record of "not guilty."

After much discussion, the prisoner was discharged from the indictment for treason and put on trial for a misdemeanor. The subpoena duces tecum to the President was issued, and the Attorney of the United States acknowledged its service. He produced the portion of Wilkinson's letter to the President (of November 6th, 1806), which he did not regard as confidential and improper to be disclosed, stating that "the President had devolved on him the exercise of that discretion which constitutionally belonged to himself."

That Mr. Hay exercised the discretion confided to him in no contumacious spirit, and that there was no desire on his part to withhold anything in the letter which could be of benefit to the prisoner, appeared from the fact that he offered, prior to the service of the subpoena, to allow three of Burr's counsel-Wickham, Randolph, and Botts-to examine Wilkinson's letters to the Government. He said, "he would depend on their candor and integrity to make no improper disclosure; and if there should be any difference of opinion as to what were confidential passages, the court should decide." Martin immediately "objected to this as a secret tribunal." He declared "the counsel had a right to hear them publicly without their consent." "

Robertson's Report, vol. ii. p. 501.

1

2 Ib. p. 502.

Mr. Hay stated more than once that the passages he desired to withhold were those containing the opinions given confidentially by Wilkinson to the Government in respect to individuals in the western country and in New Orleans, which had no connection with the question before the court, and the publication of which would seriously embroil Wilkinson with those persons. He said those opinions may have been changed, and very probably had been changed, since writing the letters.' The Chief Justice himself said, "he thought that neither the Government nor court ought to make such use of General Wilkinson's confidential letters as to embroil him with the world."

After the subpoena had been served, Hay again accompanied his refusal to publicly exhibit the entire letter, by an offer to submit it to the inspection of Mr. Wickham, or to submit it to the court and to be controlled by the judgment of the latter. This compromise was pertinaciously refused by the defence; and another storm of vituperation was poured upon the Government for an attempt to set up an odions "State secrecy."

The motive of Burr's counsel was apparent. The court was committed on the legal question; and it must undoubtedly enforce obedience to its process or grant a motion already made by the defence, that this case should stand continued [postponed] until this [Wilkinson's] letter should be produced and deposited with the clerk."

66

3

Judge Marshall said, "that in no case of this kind would a court be required to proceed against the President as against an ordinary individual; the objections to such a course were so strong and obvious that all must acknowledge them;" and he ordered that the letter be publicly produced or that the case be "continued." But he said, if thought proper, the court would order no copy of the letter to be taken for public exhibition—that no use be made of it but what was necessarily attached to the case, and if "necessary to debate it in public, those who took notes might be directed not to insert any part of the arguments on that subject.".

How far these restraints would be likely to protect Wilkinson practically from the effects of the disclosure, will be readily estimated. But that officer voluntarily consented to the exhi

1 Robertson's Rep., vol. ii. pp. 501, 510.

2 Ib. p. 501.

We have observed no intimation from the Chief Justice in respect to the nature of the "objections."

CHAP. V.]

BURR'S ACQUITTAL AND FLIGHT.

217

bition of his letter, and the trial proceeded. We have not space to continue even this imperfect outline. The attorney of the United States considered most of the testimony he had obtained excluded by a subsequent ruling of the Chief Justice, and he moved that the jury be discharged. The court decided this could not be done, except by mutual consent. The jury, therefore, brought in a verdict of "not guilty." The Chief Justice (October 20th) declined to order Burr's commitment elsewhere on the charge of treason, but ordered him committed for trial in Ohio for a misdemeanor. Bail was accepted for his appearance in the sum of three thousand dollars. Burr forfeited his recognizances, and fled to England.

During the progress of the last trial, the President addressed several letters in relation to the case to the United States Attorney. He instructed him (September 4th) to allow none of the witnesses to be paid or permitted to depart, until their testimony had been taken down in writing, either as delivered in court, or in the presence of any of Burr's counsel, who might choose to attend to cross-examine; and he added: "These whole proceedings will be laid before Congress, that they may decide whether the defect has been in the evidence of guilt, or in the law, or in the application of the law, and that they may provide the proper remedy for the past and the future." This letter contains reflections on the motives of the court, but not as pointed as some already given.

It has been claimed that the President interfered improperly in these trials, and that he exhibited an indecorous eagerness for the conviction of the prisoner. An inspection of his correspondence with Hay will show that he had very little to do with the actual management of the cases. His letters principally pertained to testimony which he was asked or required to furnish, and to his own official rights involved in questions entertained by the court. In short, out of, as well as in court, the President appears more in the light of a defendant than an assailant. We have given an instance where the constant and insulting invectives of a lawyer provoked a disposition in him to probe the motives of such malignity; but it appears only as a passing suggestion-nothing came of it. It is true, he reflected severely on the conduct of Judge Marshall. We have uniformly seen that he never spared that gentleman's motives

on any occasion where political questions or consequences were to be affected by his judicial or other official action. But this was a private account between themselves. His imputations were not sent to the court or made public. They produced no effect.

While the President was held up in the court-room as a tyrant thirsting for innocent blood, and, by implication, as a wretch instigating perjury to attain his object—while the court was as coolly and authoritatively listening to arguments concerning, and passing upon, the constitutional right of the chief magistrate of the United States to the custody of his own executive papers,' and deciding the question whether he should be arrested for contempt, as if he was some subordinate officer of the court that chief magistrate neither sent nor authorized any commumunication to the court lacking in the decency and respect which was due from the head of one department of the Government to another. He in no way publicly challenged its authority, except to give notice that he should not suffer his department or person to be violated; and we have seen no intimation that this determination was made known to the court in a manner which was considered offensive.

Again, in the capital of a State, four-fifths of whose people and prominent citizens were friends of the Administration, Burr's sympathizers were literally allowed to have their own way, when out of the court-room. At aristocratic "dinner parties," at hotels, on the corners of the streets, in the knots about the court-house, the voices were overwhelmingly in his favor. An intimation that these influences would be likely to bear improperly on the minds of the jury, that the ends of public justice were in danger of being defeated by this "outside pressure," would, in a few hours, have sent twice as many important men into Richmond as that city contained, to roll back this tide of manufactured sympathy. But to the last, Burr was the admired and caressed lion of the town. This does not look much like Government interference.

A lively illustration of the prevailing spirit, and of the President's private feelings, is presented by the following anecdote. Major Gibbons was United States Collector of the port of Rich

Which, by the Constitution, Congress are not authorized to see except at the Presi dent's discretion.

CHAP. V.]

PRESIDENT'S ALLEGED INTERFERENCE.

219

mond. He was a man of character, and was seamed with Revolutionary scars; but he was a warm Federalist, and so openly sympathized with Burr that he threw open his house for the constant reception of his friends during the trial. The President was solicited to remove Gibbons. He declined, and was further pressed, until he settled the point by saying jocularly but peremptorily: "Remove the Major! I would sooner divide my last hoe-cake with him."

In discussing Mr. Jefferson's conduct on Burr's trial, it has appeared to be the impression of some candid persons that the Executive cannot properly take any steps whatever in the way of collecting or arranging the testimony for the Government on such an occasion-in a word, take any step directly intended to increase, the chances of the prisoner's conviction. This is clearly a mistaken view. It is the constitutional duty of the President to see the laws faithfully executed. It is his business to collect the proofs of conspiracy. The Attorney-General, whose duty it is to prosecute, is his appointee, a part of his Cabinet, his representative. The alleged impropriety of the President's personal interference, rests on the fact that it may bias his mind if called upon to exercise his prerogative of pardoning after conviction. Yet the direct prosecutor, the Attorney-General, gives a vote or voice in the Cabinet whether such pardon shall be granted. In a former administration we have seen a different Cabinet officer marching in person against violators of the law, so that he might be called upon to advise in regard to pardoning men whom he had recently faced in battle; or the chief who had permitted him thus to march, might be called upon to exercise that prerogative in regard to men whose hands were red with the blood of his friend and subordinate, slain in upholding the laws. Even the judge who is to try, may, without either a legal or moral disqualification for the latter duty, believe the prisoner guilty, and may earnestly desire his conviction if guilty. It only needs that he be willing to give him a perfectly fair trial, and to act purely and strictly according to law and evidence.

The President interfered in Burr's trial neither indecorously, nor more than was to be expected in the absence ⚫ of the Attorney-General; and his letters to Hay and others in

1

1 This officer was detained at home by the illness of one of his family.