United States v. Burr

25 F. Cas. 41, 1807 U.S. App. LEXIS 494

Opinion

MARSHALL, Chief Justice.

The motion now under consideration was heard at this time, because it was alleged to be founded on a fact which might affect the justice of the' case in which the court is about to be engaged, and because, while the bills were depending before the grand jury, the court might, without impeding the progress of the business, examine into the complaint which has been made. The motion is to attach General Wilkinson for a contempt of this court, by obstructing the fair course of justice, with regard to a prosecution depending before it. In support of this charge has been offered the testimony of Mr. Knox, who states a conversation between General Wilkinson and himself, previous to his being served with a subpoena, the object of which was to extract from him whatever information he might possess, respecting the expedition which was the subject of inquiry in this court; and who states also, that he was after-wards summoned before Judge Hall, who examined him upon interrogatories, and committed him to gaol, whence he was taken by order of the deputy marshal, who was a military as well as civil officer, and put on board the Revenge, in which General Wilkinson sailed, for the purpose of being brought from New Orleans to Richmond.

That unfair practices towards a witness who was to give testimony in this court, or oppression under color of its process, although those practices and that oppression were acted in another district, would be punishable in the mode now suggested, provided the person who had acted therein came within the jurisdiction of the court, is a position which the court is not disposed to controvert; but it is also believed that this mode of punishment ought not to be adopted, unless the deviation from law could be clearly attached to the person against whom the motion was made, and unless the deviation were intentional, or unless the course of judicial proceeding were or might be so affected by it as to make a punishment in this mode obviously conducive to a fair and correct administration of justice. The conversation which took place between General Wilkinson and the witness, on the arrival of the latter in New Orleans, was manifestly held with the intention of drawing from him any information which he might possess relative to the expedition which was then the subject of inquiry. In this intention there was nothing unlawful. Government, and those who rep-' resent it, may justifiably and laudably use means to obtain voluntary communications, provided those means be not such as might tempt the person making them to give an i improper coloring to his representations, which might afterwards adhere to them when repeated in court. The address stated to have been employed, the condescension and regard with which the witness was treated, are not said by himself to have been accompanied with any indications of a desire to draw from him more than the truth. The offer of money, if with a view to corrupt, could not be too severely reprehended. It is certainly a dangerous species of communication between' those who are searching for testimony, and the person from whom it is expected. But in this case the court cannot contemplate the offer as being made with immoral views. The witness had a right to demand from those he was expected to serve a small sum of money, sufficient to subsist him on his return to his home. He was asked whether, on receiving this sum, his objections to giving testimony would be removed. This was certainly a delicate question, but it might be asked without improper motives. and it was pressed no further. This is not shown to be an attempt to contaminate the source of justice, and a consequent contempt of the court in which it is administered.

The imprisonment of Mr. Knox, and the order for conveying him from New Orleans to Richmond, were the acts of Judge Hall. Whether his proceedings were legal or illegal, they are not shown to have been influenced by General Wilkinson, and this court cannot presume such to have beeu the fact; General Wilkinson, therefore, is not responsible for them. They were founded, it is true, on an affidavit made by him; but there was no impropriety in making this affidavit, and it remained with the judge to decide what the law would authorize in the case. All the subsequent proceedings were directed by the civil authority. The. agents who executed the orders of the judge were indeed military men, who most probably would not have disobeyed the commander-in-chief; but that officer is not responsible, in this way, for having failed to interpose his authority, in order to prevent the execution of the orders of the judge, even if those orders ought not to have been given.

Upon a full view of the subject, the case appears to have been this: General Wilkinson was desirous that the testimony of the witness should be obtained; and aware of the accusations which had before been brought against him for the use he had made of the military power, he was desirous of obtaining the testimony by lawful means, and therefore referred the subject to a judge of the territory, under whose orders all subsequent proceedings were ■ taken. Whether the judge did or did not transcend the limits prescribed by law, those ministerial officers who obeyed his orders cannot be supposed to have acted with a knowledge that he had mistaken his power. Should it be admitted that this would be no defence for them in an action to obtain compensation for the injury, yet it furnishes sufficient evidence that no contempt was intended to this court by General Wilkinson, that he has not been guilty of any intentional abuse of its process, or of any oppression in the manner of executing it.

It is said that Captain Gaines, the gentleman whom the marshal appointed as his deputy for' this particular purpose, had not taken the oath of office, and was therefore not legally qualified to act in that character. However correct this observation may be in itself, it does not appear to the court to justify an attachment against General Wilkinson. The person who sees in the possession of another a commission as deputy marshal, and sees that others are acting under that commission, ought not to be subjected to a process of contempt for having made no inquiries respecting the oath which the law requires to be taken.

The attachment will not be awarded, because General Wilkinson cannot be considered as having controlled or influenced the conduct of the civil magistrate, and because in this transaction his intention appears to have been not to violate the laws. In such a case, where an attachment does not seem to be absolutely required by the justice due to the particular individual against whom the prosecution is depending, the court is more inclined to leave the parties to the ordinary course of law, than to employ the extraordinary powers which are given for the purpose of preserving the administration of justice in that purity which ought to be so universally desired.