“There are other serious objections to my situation. Must I be ready to proceed to trial? True, sir, but then it must be in their own way. Are we then on equal terms here? Certainly not. And again, as to affidavits. The United States can have compulsory process to obtain them; but I have no such advantage. An ex parte evidence, then, is brought before this court, on a motion for commitment. The evidence on one side only is exhibited; but if I had mine also to adduce, it would probably contradict and counteract the evidence for the United States. Well, sir, and these affidavits are put into the newspapers, and they fall into the hands of the grand jury. I have no such means as these, sir; and where then is the equality between the Government and myself.
“The opinion of the court, too, is to be committed against me. Is this no evil?
“A sufficient answer, sir, has been given to the argument about my delay; and its disadvantages to myself have been ably developed. But my counsel have been charged with declamation against the Government of the United States. I certainly, sir, shall not be charged with declamation; but surely it is an established principle, sir, that no government is so high as to be beyond the reach of criticism; and it is more particularly laid down, that this vigilance is more peculiarly necessary, when any government institutes a prosecution: and one reason is, on account of the vast disproportion of means which exists between it and the accused. But, if ever there was a case which justified this vigilance, it is certainly the present one, when the Government has displayed such uncommon activity. If, then, this Government has been so peculiarly active against me, it is not improper to make the assertion here, for the purpose of increasing the circumspection of the court.”
Mr. Burr observed, that he meant by persecution, the harassing of any individual, contrary to the forms of law; and that his case, unfortunately, presented too many instances of this description. He would merely state a few of them. He said that his friends had been everywhere seized by the military authority; a practice truly consonant with European despotisms. He said that persons had been dragged by compulsory process before particular tribunals, and compelled to give testimony against him. His papers, too, had been seized. “And yet, in England,” said he, “where we say they know nothing of liberty, a gentleman, who had been seized and detained two hours, in a back parlour, had obtained damages to the amount of one thousand guineas.” He said that an order had been issued to kill him, as he was descending the Mississippi, and seize his property. And yet, they could only have killed his person, even if he had been formally condemned for treason. He said that even post-offices had been broken open, and robbed of his papers; that, in the Mississippi Territory, even an indictment was about to be laid against the postmaster; that he had always taken this for a felony; but that nothing seemed too extravagant to be forgiven by the amiable morality of this Government. “All this,” said Mr. Burr, “may only prove that my case is a solitary exception from the general rule. The Government may be tender, mild and humane to everybody but me. If so, to be sure it is of little consequence to anybody but myself. But surely I may be excused if I complain a little of such proceedings.”
AFFIDAVIT OF BURR FOR SUBPŒNA DUCES TECUM FOR PRESIDENT JEFFERSON
Facing p. 40
“Our President,” said Mr. Burr, “is a lawyer and a great one too. He certainly ought to know what it is that constitutes a war. Six months ago, he proclaimed that there was a civil war. And yet, for six months have they been hunting for it, and still cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but nowhere else.”
The next day the court in a written opinion held that the motion was a proper one at this stage of the proceedings, and the attorney for the United States was permitted to open his testimony; but in doing so, the Chief Justice expressed his regrets that the result of the motion “may be publications unfavorable to the justice and to the right decision of the case.” Counsel were impressed with this observation of the court, and an attempt was made to reach an agreement whereby a public disclosure of the evidence at this time might be avoided. It was proposed by counsel for the United States that Colonel Burr’s recognizance be made sufficiently large to insure his appearance to answer the charge of high treason against the United States, but on the following day this proposition was rejected by Colonel Burr. Mr. Hay then proceeded with some reluctance to the examination of witnesses in support of his motion to commit Burr, as “he felt the full force of the objections to a disclosure of the evidence, and the necessity of the court declaring its opinion before the case was laid before the jury.”
The attorney for the United States first sought to read the deposition of General Wilkinson, which precipitated the question of the order in which the testimony was to be introduced and its admissibility. The Supreme Court had already decided in the case of Swartout and Bollman that the deposition of Wilkinson might be admitted in evidence under certain circumstances, but that it did not contain any proof of an overt act. The Chief Justice observed that no evidence certainly had any bearing upon the present case unless the overt act be proved, but he would permit the attorney for the United States to pursue his own course as to the order of introducing his testimony.