A lengthy argument here ensued, in which Mr. Botts took a conspicuous part. In a most lucid manner he defined the crime of high treason under the Constitution of the United States, and applied it to the issue before the court.
“First,” he said, “it must be proved that there was an actual war. A war consists wholly in acts, and not in intentions. The acts must be in themselves acts of war; and if they be not so intrinsically, words or intentions cannot make them so. In England, when conspiring the death of the King was treason, the quo animo formed the essence of the offence; but, in America, the national convention has confined treason to the act. We cannot have a constructive war within the meaning of the Constitution. An intention to levy war, is not evidence that a war was levied. Intentions are always mutable and variable; the continuance of guilty intentions is not to be presumed. Secondly, the war must not only have been levied, but Colonel Burr must be proved to have committed an overt act of treason in that war. A treasonable intention to coöperate is no evidence of an actual coöperation. The acts of others, even if in pursuance of his plan, would be no evidence against him. It might not be necessary that he should be present, perhaps; but he must be, at the time of levying the war, coöperating by acts, or, in the language of the Constitution, be committing overt acts. Thirdly, the overt act by the accused, as an actual war, must not only be proved, but it must be proved to have been committed within this district. Fourthly, the overt act must be proved by two witnesses.”
The Chief Justice declared this view of the law to be correct, and General Wilkinson’s deposition was accordingly put aside.
Mr. Hay realized the utter futility of his efforts to commit Burr on the charge of treason at this stage of the case, and readily consented to Burr’s proposition to double the amount of his bond to answer the charge of a misdemeanor. Luther Martin, who appeared for the first time, became one of his sureties. He declared in open court that he was happy to have this opportunity to give a public proof of his confidence in the honor of Colonel Burr, and of his belief in his innocence.
General Wilkinson had not as yet put in his appearance, and much impatience was manifested because of the inconvenience he had caused. The grand jury were therefore adjourned from day to day until the second day of June, when they were adjourned until the 9th, on which last named day he was expected to arrive.
The court met accordingly on the 9th, and after the names of the grand jury had been called and explanations offered as to the continued absence of General Wilkinson, Colonel Burr moved the court to issue a subpœna duces tecum addressed to the President of the United States, requiring him to produce certain papers, and on the following day he presented to the court an affidavit, drawn up and sworn to by himself in open court in support of his motion. In this affidavit he sets forth that he has great reason to believe, that a letter from General Wilkinson to the President of the United States, dated October 21st, 1806, as mentioned in the President’s message of the 22nd January, 1807, to both Houses of Congress, together with the documents accompanying the said letter, and copy of the answer of said Thomas Jefferson, or of anyone by his authority, to the said letter, may be material in his defence in the prosecution against him. And further that he has reason to believe, the military and naval orders given by the president of the United States, through the departments of war and of the navy, to the officers of the army and navy, at or near New Orleans stations, touching or concerning the said Burr, or his property, will also be material in his defense; and that he had made a personal request for copies of these papers during a recent visit to Washington, and had been refused.
Mr. Martin in support of the propriety of granting this particular subpœna laid down as a general principle, in all civil or criminal cases, that every man had a right by process to establish his rights or his innocence. He asserted that one of the papers necessary to the defense is the original letter from General Wilkinson described in Burr’s affidavit. The other papers are copies of official orders by the navy and war departments. He had supposed that every citizen was entitled to such copies of official papers as are material to him, and he had never heard of but one instance where they were refused, and this was under presidential influence.
“We intend to show,” says Mr. Martin, “that, by this particular order, his property and his person were to be destroyed; yes, by these tyrannical orders, the life and property of an innocent man were to be exposed to destruction. We did not expect these originals themselves. But we did apply for copies; and were refused under presidential influence. In New York, in the farcical trials of Ogden and Smith, the officers of the Government screened themselves from attending, under the sanction of the President’s name. Perhaps the same farce may be repeated here; and it is for this reason that we applied directly to the President of the United States. Whether it would have been best to have applied to the Secretaries of State, of the Navy and War, I cannot say. All that we want is the copies of some papers, and the original of another. This is a peculiar case, sir. The President has undertaken to prejudge this trial by declaring, that, ‘of his guilt there can be no doubt.’ He has assumed to himself the knowledge of the Supreme Being himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country, which has rewarded him. He has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all of this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life is at stake? It is a sacred principle, that in all such cases, the accused has a right to all the evidence which is necessary to his defense. And whoever withholds, wilfully, information that would save the life of a person, charged with a capital offence, is substantially a murderer, and so recorded in the registry of Heaven.”
SUBPŒNA DUCES TECUM FOR PRESIDENT JEFFERSON