THE EXAMINATION

OF

COLONEL AARON BURR.

RICHMOND, MONDAY, March 30th, 1807.

COLONEL AARON BURR, who had been arrested on the Tombigbee river, in the Mississippi Territory, on the 19th day of February last, and brought to this city under a military escort on Thursday evening the 26th instant, remained under guard until this day, when he was delivered over to the civil authority, by virtue of a warrant issued by the chief justice of the United States, grounded on the charges of a high misdemeanor, in setting on foot and preparing, within the territories of the United States, a military expedition, to be carried on from thence against the dominions of the king of Spain, with whom the United States then were and still are at peace; and also of treason against the United States.

Between the hours of twelve and one o'clock, major Scott, the marshal of the district of Virginia, attended by two of his deputies, waited on colonel Burr, at his lodgings at the Eagle Tavern, and, after informing him in the most respectful manner, of the nature and object of his visit, conducted him through an awfully silent and attentive assemblage of citizens to a retired room in the house, where he was brought before chief justice Marshall for examination. The counsel and a witness for the United States, the counsel for the prisoner, the marshal and his deputies, and a few friends invited by the counsel of colonel Burr, were alone admitted.

This mode of proceeding occasioned some degree of dissatisfaction among the citizens; but the following statement of facts, which we are authorised to say is correct, will readily account for it. When the attorney for the district applied to the chief justice for a warrant, some conversation ensued on the manner of examination. Mr. Marshall observed that it was indifferent to him whether it was held at the capitol or at the Eagle Tavern. Mr. Hay objected to the latter, that no room was sufficiently large to receive the crowd that would attend, which VOL. I. A

would be a source of considerable inconvenience. Mr. Marshall observed, that this difficulty could be obviated by having the examination in private. To which Mr. Hay assented, on the condition, that if there were a discussion by counsel, they should adjourn to the capitol.

The evidence introduced on this occasion consisted of a copy of the record in the case of Bollman and Swartwout in the supreme court of the United States, (containing the affidavits of general Eaton, general Wilkinson, and others); and also of the verbal testimony of major Perkins, the gentleman by whom colonel Burr was apprehended; the substance of which we are authorised to assert, is correctly as follows: On the night of the 18th or 19th of February last, he was at Washington courthouse. At about 11 o'clock, as he was standing at the door of the house occupied by the sheriff, he observed two men coming down the road. The moon afforded him light enough to enable him to see objects at some distance. The foremost man, who was thirty or forty yards before his companion, and who turned out to be colonel Burr, passed near the door without stopping or speaking. Burr's companion stopped and inquired the way to major Hinson's: the way was pointed out, but Perkins informed him that the major was from home, and that, in consequence of a late rise in the waters, he would experience some difficulty in getting there that night; the stranger, however, went on. Perkins, struck with this midnight journey, the silence of the person who had first passed, the unwillingness of the travellers to stop at a public place, where they and their horses might have been accommodated, and their determination to continue their route to Hinson's, after information was given that he was from home, communicated to the sheriff his suspicion, that these men must be under the influence of some extraordinary motive. Possibly they might be robbers, or perhaps one of them was Burr endeavouring to effect his escape. He had been informed that Burr had left Natchez. Impressed by these suspicions, he urged the sheriff, who had gone to bed, to rise and go with him to Hinson's. After some time the sheriff agreed to accompany him, and they went to Hinson's, where they found both the travellers. Burr, who had been in the kitchen to warm himself, soon came into the room where his companion and Perkins were. He spoke very little, and did not seem willing to be observed. Perkins eyed him attentively, but never got a full view of his face. He discerned that Burr once glanced his eye at him, apparently with a view to ascertain whether Perkins was observing him; but withdrew it immediately. The latter had heard Mr. Burr's eyes mentioned as being remarkably keen, and this glance from him strengthened his suspi

cions. He determined immediately to take measures for apprehending him. He accordingly left the place, after men tioning in a careless manner the way he meant to take. The way he indicated was opposite to the course he thought Burr would pursue. After getting beyond the reach of observation, he took the road to Fort Stoddart, and obtained the aid of the commandant and four soldiers. The circumstances of the arrest have been already stated to the public.

Perkins further said, that, while they were on their way to Washington, at Chester Town or courthouse, in the back part of South-Carolina, Mr. Burr, observing a small collection of people, got off his horse, went into the company, asked for a magistrate, and complained of being under an illegal arrest and military guard. Perkins, however, soon reinstated him on his horse, and directed the guard to proceed. The people manifested no disposition to interfere.

After the evidence was gone through, Mr. Hay submitted to the chief justice a motion in writing for the commitment of the prisoner on the two charges above mentioned. A discussion was then agreed, on both sides, to be necessary; and, in pursuance of the arrangement previously made, Mr. Hay moved for an adjournment to the capitol, to which the counsel of colonel Burr readily assented. Colonel Burr was then admitted to bail in the sum of five thousand dollars for his appearance on the following day at ten o'clock.

TUESDAY, 31st March, 1807.-Present, John Marshall, chief justice of the United States. Counsel for the prosecution, Cæsar A. Rodney, attorney general for the United States; George Hay, attorney of the United States for the district of Virginia. Counsel for colonel Burr, Edmund Randolph, esquire, John Wickham, esquire.

At ten o'clock, the chief justice was seated on the bench, and the court room crowded with citizens. Colonel Burr arrived at half past ten o'clock, and apologised for the delay, declaring that he had misapprehended the hour at which he was bound to appear.

On the suggestion of the counsel, that it would be impossible to accommodate the spectators in the court room, the chief justice adjourned to the hall of the house of delegates.

Mr. HAY, the attorney for the United States, for the district of Virginia, moved, that the prisoner should be committed in order to take his trial upon two charges, exhibited against him on the part of the United States: 1st, For a high misdemeanor, in setting on foot, within the United States, a military

expedition against the dominions of the king of Spain, a foreign prince, with whom the United States, at the time of the offence, were, and still are, at peace. 2d, For treason in assembling an armed force, with a design to seize the city of NewOrleans, to revolutionize the territory attached to it, and to separate the western from the Atlantic states.

He stated the first offence to be a violation of the fifth section of an act of congress, passed on the 5th of June, 1794, intitled, "an act in addition to the act for the punishment of certain crimes against the United States," continued for limited periods by several succeeding laws, and continued without limitation by an act passed in 1799. The said section provides, "that if any person shall. within the territory or juris"diction of the United States, begin or set on foot, or provide "or prepare the means for any military expedition or enter"prize, to be carried on from thence against the territories or "dominions of any foreign prince or state, with whom the "United States are at peace, every person so offending shall, upon conviction, be adjudged guilty of a high misdemeanor, "and shall suffer fine and imprisonment, at the discretion of "the court in which the conviction shall be had, so as that "such fine shall not exceed three thousand dollars, nor the "term of imprisonment be more than three years." He supported this charge by the letter of the prisoner addressed to general Wilkinson, and insisted that it showed probable cause to suspect him of having committed this offence; nay, that he had actually committed it, and that this construction of the letter was deliberately adopted by the supreme court of the United States; that the intention of the prisoner to commit these offences was perfectly clear from the evidence.

But, secondly, he insisted, that there was probable cause to suspect, that the prisoner had committed an act of treason; that he intended to take possession of New-Orleans, make it the seat of his dominion, and the capital of his empire; and that this charge was proved by the affidavits exhibited in the cases of Bollman and Swartwout, and he referred to the opinion of the supreme court in those cases, as supporting the doctrine for which he contended, that there was just ground of suspicion against him. He went minutely into an examination of the evidence, to show that he was correct, and among other circumstances mentioned his flight from justice.

Mr. WICKHAM, in behalf of the prisoner, contended, that there was no evidence of treason committed by colonel Burr; that there was nothing like an overt act, or probable ground to believe him guilty of such an offence; that the letter in cypher to general Wilkinson was not delivered by Mr. Burr, nor

proved to be written by him; that a comparison of the handwriting was inadmissible evidence; that if it were written by him, the contents of it might be mistaken, and general Wilkinson acknowledged that it could not be fully interpreted; that the definition of treason was clearly marked out by the consti tution itself, and could not be mistaken. He contested the propriety and effect of the evidence relied on by the attorney for the United States, and insisted, that if any thing could be inferred from it, an invasion of the territories of the king of Spain, a power with which we were in an intermediate state between war and peace, was by far the most probable; that if his intention were to attack the Spanish settlements, it was not only innocent, but meritorious; that there were strong circumstances at that time to justify the expectation of a war with Spain; and he appealed to the message of the president of the United States, at the opening of the session of congress, to prove the provocations on the part of Spain, and the probability of such an event; that if we remained at peace with that power, still colonel Burr might very innocently contemplate some individual enterprize, and the president recommended strong settlements beyond the Mississippi; that as to what was deemed a flight, he only exercised a right in endeavouring to escape from military despotism. He concluded, that there was not a shadow of evidence to support the charge of treason; and as to the other, the evidence was trivial; but if deemed sufficient to put him on his trial, it was a bailable offence; and as, unfortunately for colonel Burr, he was brought to the place where he had fewer friends or acquaintances, than in almost any other part of the United States, it would be cruelty in counsel to insist on his giving bail in a considerable sum.

Mr. RANDOLPH enforced the same principles in behalf of the accused. He denied that there was any evidence to support either of the charges; that, though long conversant with criminal jurisprudence, he never before heard of a conjecture of an overt act of treason attempted to be proved from a supposed intention! which was as inconsistent with law and justice as with charity. But whatever the intention might have been, the law required, that a criminal act must be proved, to support a prosecution; that the government, who had caused him to be brought such a great distance from his friends and the scene of intelligence, ought not to avail itself thereof to oppress him; that as treason was of all crimes the most heinous, it required the strongest evidence to support it; whereas here there was no proof except what was vague, weak, and unsatisfactory; that he had not fled from justice, but from military oppression, (which he had a right to resist) after he had been acquitted in