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5 Am. Law. 526 (1897)
The Trial of Aaron Burr for Treason

handle is hein.journals/amlyr5 and id is 530 raw text is: 526 THE AMERICA.A LAWYER. he been a candidate for any other office it would not be contended by any one that the publications in question would afford ground for any other legal action than an action for libel in the regular course of law; but the claim is that because he was a judge, and was holding court at that time, such unfavorable criticism of his past actions may be summarily punished by the judge himself as for contempt. Truly, it must be a grievous and weighty ne- cessity which will justify so arbitrary a proceeding, whereby a candidate for office becomes the accuser, judge and jury, and may within a few hours summarily punish his critics by imprisonment. The result of such a doc- trine is that all unfavorable criticism of a sitting judge's. past official action can be stopped by the judge himself, or, if not stopped, can be punished by immediate im- prisonment. If there be any more effective way to gag the press and subvert freedom of speech we 'do not know Where to find it. Under such a rule the merits of a sit- ting judge may be rehearsed, but as. to his demerits there must be profound silence. In our judgment no such divinity as this 'doth hedge about' a judge; cer- tainly not' when he is a candidate for public office. * * * But another claim was made by the counsel who so ably represented Judge Bailey in this court . which requires some attention. It appears by the return that immediately upon the service of the alternative writ upon -him Judge Bailey announced that he would pro- ceed no further with the pending proceedings, and that they were stayed. After making this announcement, however, the judge at once stated that a new contempt. had been committed by Ashbaugh and Doolittle in the immediate presence of the court by the filing of their sworn return or affidavit in response to the original order to show cause, stating that the charges in the newspaper articles were true; that this contempt was independent of the alleged contempt by.publication, and was not in- cluded within the inhibition of the writ, and that he would at once punish them for this contempt. Thereupon the judge proceeded to at once adjudge them guilty of this new contempt and sentenced 'them to imprisonment therefor. We are unable to agree with this contention. If, as we have held, the original publication was not con- tempt, and the attempt to punish it as such was in excess of the jurisdiction of the court, then certainly the de- fendants had a right when summoned into court. to allege its truth. They were forced, if they were in any degree honorable men and not mere slanderers, to ailege the truth of the publication. Any other course would dem- onstrate their pusillanimity. It cannot be endured that a court, by unauthorized sunmary proceedings, should wring from a man such a declaration and then abandon the original proceedings and punish this forced decla- ration as contempt. lIE TRIAL OF AARON BURR FOR TREASON Address of William Wirt Henry of Richmond, President of the Virginia State Bar Association, Delivered August 3, 1897. Gentlemen of the Virginia State Bar Association: Perhaps no member of this association would have ap- preciated more highly the honor conferred by the election as its president than myself. From my early boyhood I desired to become a -lawyer. My profession has been my life's work, and my earnest endeavor has been to render myself, both in acquirement and conduct, a worthy member of our most honorable calling.- To be honored by my brethren is therefore to me an honor, indeed. And this honor is greatly enhanced in value when I consider the personnel of this association and the distinguished jurists who have preceded me as its presid- Ing officers. Indeed, when we consider the high character which has always been borne by the Virginia bar, the genius and acquirements which have distinguished so many of its members, we may justly be proud of the past; while we should feel, in view of that past, the greatest responsibility of the present and the greater obligation toward those who are to succeed us. And In performing the duties incumbent upon us we cannot too often seek inspiration from the examples of those who have made the pages of our history glorious. In- deed, it is the special duty of our association to keep green their memories. Thoughts like these have determined me, in the address it becomes my duty to make on this occasion, to direct your at- tention for a brief period to a great case, which ninety years ago brought the Richmond bar prominently before the conti- nent, and won for it the. distinction of being the equal of any, if not the ablest, bar in the United States; a case in which our greatest, judge presided over the trial of a man great in intellect and position, indicted for the greatest of all crimes by the most distinguished Grand Jury that was ever impan- nelled, and in which both the prosecution and defense included ,ome of the foremost advocates of the day. The case I have selected is the trial of Aaron Burr for treason, in the year 1807, before the United States Circuit Court at Richmond. Before entering upon his trial, let me recall some of the prominent events in the life of Aaron Burr. If there be any truth in the claim that talents are hereditary, Aaron Burr was entitled to the great talents he possessed by right of inheri- tance. His father, a Presbyterian divine, was a man of extra- ordinary intellect, of great learning and of commanding elo- quence. Selected,as the second president of Princeton Col- lege, he for nine years directed its affairs, laying the foundation of that great school of learning. The beautiful and gifted daughter of the great Jonathan Edwards was the mother of Burr. But if moral qualities, like physical and mental char- acteristcs, are likewise hereditary, Aaron Burr exhibited a notable exception to the rule. His parents were both deeply pious, but both died while he was a youth, and he early- de- veloped an alarming tendency toward irreligion as regards faith, and immorality in regard to conduct. In truth, he de- liberately discarded St. Paul as a model in manners and con- duct, and selected as his model the polished and immoral Lord Chesterfield. In doing this he turned his back on the sincere piety and uprightness of his parents, and under the exterior of a polished gentleman he concealed the depraved morals of a Rochester. The early development of young Burr was phenomenal. At the age of thirteen he entered Princeton, for which he was prepared at eleven, but was refused on account of his age; and at sixteen he graduated with the highest honors of the Institu- tion. His reputation as the most brilliant student ever edu- cated at the college remained until it was equaled, If not eclipsed, by a son of Judge Roger A. Pryor, Theodorick Pryor, whose early death deprived his country of a genius of the first order. Soon after leaving college young Burr volunteered in the Continental army besieging Boston, and was In the fatal ex- pedition against Canada. In the assault on Quebec he greatly distinguished himself as aid to the ill-fated Montgomery, and he refused to leave the field with his retreating comrades till he had secured the body of his stalwart commander, which, though small of stature, he bore upon his shoulders beyond the reach of the British. His cool and imperturbable conduct In action won for him great applause; and, on his return from Canada, Washington gave him a position on his staff. But that admirable judge of men soon discovered that Burr was lacking in the moral principles which lay at the foundation of all good character, and the two men parted with feelings of aversion, never changed in after life-Washington regarding Burr as thoroughly unprincipled, and Burr despising Wash- ington and ever underrating his services to his country. The bravery and genius of Burr, however, brought him pro- motion in the army, and as commander of a regiment he showed himself an accomplished soldier. At the end of the war he did not lay aside Its arts, but carried them into his chosen profession-the law-and, indeed, Into every walk of life. He strove for victory In every enterprise, and he hesi- tated not at any means which was necessary to accomplish his -ends. The destruction of those who stood in his way was his object, and any artifice to effect this he deemed meritorious. At the close, of the Revolution Burr married happily, and settled in the city of New York as a lawyer; and very soon he and Alexanoer Hamilton were recognized as leaders of the bar. But his restless spirit was not satisfied with the triumphs of his profession. He entered the arena of politics. In this his rise was so rapid as to be without precedent. In 1783 he was elected to the Legislature of New York; in 1789 was made Attorney General of the State; in 1791 was elected a Senator of the United States; in 1792 was nominated for the Supreme Court of the State, which he declined; in 1800 he was voted for as President of the United States, receiving the same number of votes as Mr. Jefferson. The election was, thereupon, thrown Into the House of Representatives, where, after a prolonged struggle, Jefferson was elected President; and, as the Constitu- tion then provided, Burr, who received the next highest vote, became Vice-President. In that high office he conducted him- self with distinguished ability. During his term the impeach- ment of Judge Chase was tried in the Senate, and his bonduct as presiding officer was said to be worthy of all praise. But before his term expired he was guilty of an act which proved to be his ruin. Both at the bar and In politics Burr and Ham- ilton had been opponents and rivals for years. Hamilton had been imprudent in expressing to his friends and others his. low estimate of Burr's 'moral character, and some one had been still more imprudent in putting Hamilton's opinion of Burr in a newspaper. Burr, on seeing the publication, addressed a let-

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