Mr. Wickham complained because the gentlemen on the other side had not given them notice of their intended motion. “We come into this discussion completely off our guard, completely unprepared.” “The fact is this,” replied Mr. Hay, “Mr. Wilkinson is known to be a material witness in this prosecution; his arrival in Virginia, might be announced in this city, before he himself reached it. I do not intend to say what effect it might produce upon Colonel Burr’s mind; but certainly Colonel Burr would be able to effect his escape, merely upon paying the recognizance of his present bail. My only object then was to keep his person safe, until we could have investigated the charge of treason; and I really did not know but that if Colonel Burr had been previously apprised of my motion he might have attempted to avoid it. But I did not promise to make the communication to the opposite counsel, because it might have defeated the very end for which it was intended.”
Mr. Wickham observed, “that the present motion was unprecedented in a system of criminal jurisprudence, which was upwards of one hundred years old.” Continuing, Mr. Wickham said: “What, sir, is the tendency of this application? What is the motion? I have no doubt, the gentlemen mean to act correctly—I wish to cast no imputation; but the counsel and the court well know that there are a set of busy people (not I hope employed by the Government) who, thinking to do right, are laboring to ruin the reputation of my client. I do not charge the Government with this attempt; but the thing is actually done. Attempts have been made. The press from one end of the continent to the other, has been enlisted on their side to excite prejudice against Colonel Burr. Prejudice? Yes, they have influenced the public opinion by such representations, and by persons not passing between the prisoner and his country, but by ex parte evidence and mutilated statements. Ought not this court to bar the door as much as possible, against such misrepresentation? to shut out every effort to excite further prejudice, until the case is decided by a sworn jury? Not by the floating rumors of the day, but by the evidence of sworn witnesses?”
In reply to Mr. Botts and Mr. Wickham, Mr. Wirt for the first time addressed the court:
“Where is the crime,” said Mr. Wirt, “of considering Aaron Burr a subject to the ordinary operation of the human passions? Towards any other man, it seems, the attorney would have been justified in using precautions against alarms and escapes; it is only improper when applied to this man. Really, sir, I recollect nothing in the history of his deportment which renders it so very incredible, that Aaron Burr would fly from a prosecution. But at all events, the attorney is bound to act on general principles, and to take care that justice be had against every person accused, by whatever name he may be called, or by whatever previous reputation he may be distinguished. This motion, however, it seems, is not legal at this time, because there is a grand jury in session. The amount of the position is, that though it may be generally true, that the court possesses the power to hear and commit, yet, if there be a grand jury, the power of the court is suspended; and the commitment cannot be had unless in consequence of a presentment or bill of indictment found by that body. The general power of the court being admitted, those who rely on this exception, should support it by authority; and, therefore, the loud call for precedents, which we have heard from the other side come improperly from that quarter. We ground this motion in the general power of the court to commit: let those who say that this general power is destroyed by the presence of a grand jury show one precedent to countenance this original and extraordinary motion. I believe, sir, I may safely affirm, that not a single reported case or dictum can be found, which has the most distant bearing towards such an idea. Sir, no such dictum or case ought to exist. It would be unreasonable and destructive of the principles of justice.
“But, sir, we are told, that the investigation is calculated to keep alive the public prejudice; and we hear great complaints about these public prejudices. The country is represented as being filled with misrepresentations and calumnies against Aaron Burr; the public indignation, it is said, is already sufficiently excited. This argument is also inapplicable to our right to make this motion; it does not affect the legality of our procedure. Sir, if Aaron Burr be innocent instead of resisting this motion, he ought to hail it with triumph and exultation. What is it that we propose to introduce? Not the rumors that are floating through the world, nor the bulk of the multitude, nor the speculations of newspapers, but the evidence of facts. We propose, that the whole evidence exculpatory as well as accusative, shall come before you; instead of exciting, this is the true mode of correcting, prejudices. The world, which it is said has been misled and influenced by falsehood, will now hear the truth. Let the truth come out, let us know how much of what we have heard is false, how much of it is true; how much of what we feel is prejudice, how much of it is justified by fact. Whoever before heard of such an apprehension as that which is professed on the other side? Prejudice excited by evidence! Evidence, sir, is the great corrector of prejudice. Why then does Aaron Burr shrink from it? It is strange to me that a man, who complains so much of being, without cause, illegally seized and transported by a military officer, should be afraid to confront the evidence; evidence can be promotive only of truth. I repeat it then, sir, why does he shrink from the evidence? The gentlemen on the other side can give the answer. On our part we are ready to produce that evidence.
“The gentleman assures us, that no imputation is meant against the Government. Oh no, sir; Colonel Burr indeed has been oppressed, has been persecuted; but far be it from the gentleman to charge the Government with it. Colonel Burr indeed has been harassed by a military tyrant, who is ‘the instrument of the Government bound to blind obedience’; but the gentleman could not by any means be understood as intending to insinuate aught to the prejudice of the Government. The gentleman is understood, sir; his object is correctly understood. He would divert the public attention from Aaron Burr and point it to another quarter. He would, too, if he could, shift the popular displeasure, which he has spoken of, from Aaron Burr to another quarter. These remarks were not intended for your ear, sir; they were intended for the people who surround us; they can have no effect upon the mind of the court. I am too well acquainted with the dignity, the firmness, the illumination of this bench, to apprehend any such consequence. But the gentlemen would balance the account of popular prejudices; they would convert the judicial inquiry into a political question; they would make it a question between Thomas Jefferson and Aaron Burr. The purpose is well understood, sir; but it shall not be served. I will not degrade the administration of this country by entering on their defence. Besides, sir, this is not our business; at present we have an account to settle, not between Aaron Burr and Thomas Jefferson, but between Aaron Burr and the laws of his country. Let us finish his trial first. The administration, too, will be tried before their country; before the world. They, sir, I believe, will never shrink, either from the evidence or the verdict.”
Mr. Hay then delivered an elaborate argument in support of his motion and was followed by Mr. Randolph. Colonel Burr concluded the debate in a ten minutes’ speech.
“The case is this,” says Colonel Burr: “No man denies the authority of the court, to commit for a crime; but no commitment ought to be made, except on probable cause. This authority is necessary; because policy requires, that there should be some power to bind an accused individual for his personal appearance, until there shall have been sufficient time to obtain witnesses for his trial; but this power ought to be controlled as much as possible.
“The question in the present case, is whether there is probable cause of guilt; and whether time ought to be allowed to collect testimony against me. This time ought generally to be limited; but there is no precise standard on the subject; and much is of course left to the sound discretion of the court. Two months ago, however, you declared that there had been time enough to collect the evidence necessary to commit, on probable cause; and surely, if this argument was good then, it is still better now.
“As soon as a prosecutor has notice of a crime, he generally looks out for witnesses. It is his object to obtain probable cause for committing the accused. Five months ago, a high authority declared that there was a crime; that I was at the head of it; and it mentioned the very place, too, where the crime was in a state of preparation. The principal witness against me, is said to be Mr. Wilkinson. Now, from what period is the time to be computed? If, from the time I was suspected, five months; if, from the time when I was seized, three months; or is it to be only computed from the time when I was committed? So that it is near forty days since the notice must have arrived at New Orleans. But a vessel navigates the coast, from New Orleans to Norfolk, in three weeks. I contend, however, that witnesses ought to be produced, from the very time when the crimes are said to be committed. There is, then, no apology for the delay of the prosecution, as far as it respects the only person for whom an apology is attempted to be made.