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Title: Shout Treason
       The Trial of Aaron Burr

Author: Francis Foulke Beirne

Release Date: December 3, 2017 [EBook #56121]

Language: English

Character set encoding: UTF-8

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Transcriber’s Note

Table of Contents added by Transcriber


CONTENTS

  Acknowledgements             vi
  Prologue                      3
  Chapter I                     7
  Chapter II                   18
  Chapter III                  30
  Chapter IV                   45
  Chapter V                    54
  Chapter VI                   62
  Chapter VII                  76
  Chapter VIII                 88
  Chapter IX                  104
  Chapter X                   120
  Chapter XI                  131
  Chapter XII                 144
  Chapter XIII                154
  Chapter XIV                 167
  Chapter XV                  190
  Chapter XVI                 202
  Chapter XVII                216
  Chapter XVIII               233
  Chapter XIX                 245
  Chapter XX                  264
  Chapter XXI                 276
  Bibliography                286
  Index                       289




[Illustration: AARON BURR

_From an original drawing from nature, by Saint-Mémin_]




  SHOUT
  TREASON

  _The Trial of
  Aaron Burr_

  by Francis F. Beirne

  HASTINGS HOUSE · PUBLISHERS
  _NEW YORK_




  COPYRIGHT © 1959 by HASTINGS HOUSE, PUBLISHERS, INC.

  All rights reserved. No part of this book
  may be reproduced without
  written permission of the publisher.

  Published simultaneously in Canada by
  S. J. Reginald Saunders, Publishers, Toronto 2B.

  Library of Congress Catalog Card Number: 59-13552

  _Printed in the United States of America_




_Acknowledgments_


The story of Aaron Burr has been treated exhaustively by many writers
in many ways. Oddly enough, aside from the stenographic report of the
proceedings and a small volume which appeared nearly a century ago,
there seems to have been no work dealing alone with the subject of
Burr’s trial in Richmond, Virginia, in the spring and summer of 1807,
on charges of treason against the United States and high misdemeanor.
Yet this marked the climax of Burr’s public career and the presence of
a former Vice-President of the United States as the accused, charged
with such serious crimes, of the Chief Justice of the United States on
the bench, and of distinguished leaders of the bar represented both in
the prosecution and defense made this the most dramatic case in the
history of American jurisprudence.

It is true there is likely to be no better account of the trial than
that of Albert J. Beveridge, on whom this author has leaned heavily
in feeling his way through legal technicalities and to whom he makes
grateful acknowledgment. This scholarly treatment, however, is buried
in the middle of Senator Beveridge’s life of John Marshall where
it cannot attract the attention it deserves from a larger audience
both because of the trial’s historical importance and its human and
spectacular qualities. It was with the idea of reaching the general
reader that this work, striving for historical accuracy but relieved of
confusing technicalities, was undertaken.

For valuable assistance in its preparation thanks are due the staffs of
the Virginia Historical Society and the Valentine Museum, of Richmond;
of the Enoch Pratt Free Library, the Peabody Library and the Maryland
Historical Society, of Baltimore; and of the manuscript room of the
Library of Congress. I am indebted to my wife, Rosamond Randall Beirne,
for her patience and encouragement over the years the work was in
progress and for the many hours of research she devoted to it; and
to my sister, Lisa Beirne Leake, who made available her library rich
in material on old Richmond. Mention should be made of the courtesy
of Mr. John S. Stanley, former president of the Maryland State Bar
Association, and of Mr. Douglas H. Gordon, also of that Association, in
providing copies of their papers respectively on Luther Martin and John
Marshall; and of Mr. Henry G. Alsberg, chief editor of Hastings House,
for revealing notes on General Wilkinson.

For answering specific questions thanks are due Judge Brockenbrough
Lamb, of the Chancery Court of Richmond, Mr. Arthur W. Machen Jr.,
of the Maryland Bar, and Mr. Walkley E. Johnson, Clerk of the United
States Court for the Eastern District of Virginia. The last named
gentlemen, however, did not see the manuscript and are not responsible
for any technical errors that may appear in it.

            FRANCIS F. BEIRNE




SHOUT TREASON

_The Trial of Aaron Burr_




_Prologue_


In his _Critical and Historical Essays_ Lord Macaulay has left to
posterity a vivid account of the opening of the impeachment proceedings
against Warren Hastings, late Governor-General of India, before the
House of Lords, for high crimes and misdemeanors allegedly committed
during his incumbency.

The event took place on February 13, 1788. The scene was Westminster
Hall, London, where thirty kings had been crowned and where Charles I
faced his accusers. Macaulay tells us that the avenues were lined with
grenadiers and kept clear by cavalry, for a great throng had assembled
to view the spectacle.

Some 170 Lords, robed in gold and ermine, and marshaled by heralds
under Garter King-at-Arms, marched in solemn order from their House
to the tribunal. In the procession also were the judges in their
vestments of state. Bringing up the rear were the Duke of Norfolk, the
Earl Marshal, the brothers and sons of King George III, and, last of
all, the Prince of Wales, “conspicuous for his fine person and noble
bearing.”

The gray walls of the ancient building, says Macaulay, were hung
with scarlet. Benches draped in red were provided for the Peers, and
benches draped in green for the Commons. Seated in the galleries were
the Queen, surrounded by the “fair-haired daughters of Brunswick,” the
ambassadors and ministers of great countries, and such distinguished
personages as Mrs. Siddons, the actress and beauty, Sir Joshua
Reynolds, the artist, Georgiana Duchess of Devonshire, and other women
of brilliance and fashion.

There, too, were the Managers, the great orators of the day--Edmund
Burke, Charles James Fox, Richard Brinsley Sheridan, William Windham,
and Charles Earl Grey. They were to conduct the prosecution.

There, too, in all his injured dignity was the man who was responsible
for this glamorous exhibition of justice. Nearly eight years were to
pass before the tedious performance came to a close and Warren Hastings
went forth a free and vindicated man.

Meanwhile the world looked on at the drama. Not the least interested
spectators were members of the bench and bar of the new nation across
the sea. It had lately won its independence, but none the less,
especially where the law was concerned, it clung to the tradition of
its mother country.

Our ancestors brought English law with them when they founded the
American colonies. During the colonial period those young men who could
afford it journeyed to London to study the law at the Inns of Court.
No revolution of a few years’ duration could sever this stout line of
descent. No greater compliment could be paid an American lawyer than
to remark that he was capable of holding his own with the best in the
spirited forensic encounters in Westminster.

It was only natural that our American bar, reveling in the Hastings
episode, should yearn to put on a similar show. It was inevitable that
an opportunity would arrive.

It first presented itself in the case of Samuel Chase, a justice of
the Supreme Court of the United States and an ardent and outspoken
Federalist who did not hesitate to express his low opinion of Thomas
Jefferson’s Republican administration even from the bench. The
Republican leaders in Congress took up the challenge. In eight articles
members of the House compressed all the complaints of his conduct that
had been made since his appointment eight years before and laid the
charges before the Senate of the United States.

On February 4, 1805, the Senate, sitting as a Court of Impeachments,
convened to hear the case. Mark the influence of the trial of Warren
Hastings. The Senate Chamber was remodeled for the occasion. In the
center of the scene was the chair of the President of the Court--in
this case the Vice-President of the United States. To his right and
left were two rows of benches with desks, the whole covered with
crimson cloth, like those of the Lords in the trial of Warren Hastings.
These were for the thirty-four senators who were to sit in judgment.
Facing them were three rows of benches arranged in tiers and covered
with green cloth, as had been those of the Commons. These were for
members of the House of Representatives. On either side of the chair
of the presiding officer were inclosures covered with blue cloth;
respectively for the Managers, who were to prosecute the case, and for
the lawyers of the defense. Present, too, were the Chief Justice and
the associate justices of the Supreme Court.

The young Republic, alas, could produce no peers in gold and ermine.
There were no brothers and sons of a ruling monarch, nor an heir
apparent conspicuous for his fine person and noble bearing. Nor could
the raw and straggling community that then went under the name of
Washington present the same array of genius and fashion as London. But
it did the best it could with the raw material it had. In the Senate
Chamber a temporary gallery had been erected. Here were boxes provided
with comfortable seats from which ladies dressed in the height of
fashion followed the proceedings.

Who was responsible for this elaborate and colorful setting,
so obviously imitating the spectacle of a few years earlier at
Westminster? Senator Plumer, of New Hampshire, records that all the
arrangements were in the hands of the Vice-President who also presided
over the trial. And that Vice-President was Aaron Burr. One might have
guessed that no other American statesman boasted the same dramatic
instinct. Nor was the stage set without his awareness that he was to
play a leading part on it. And he played it well. From at least one
none-too-friendly critic he provoked the comment that: “He conducted
with the dignity and impartiality of an angel, but with the rigor of a
devil.” Burr was greatly pleased with that remark and quoted it in a
letter to his daughter, Theodosia.

Through February the arguments were heard. Then on March 1 the Senate
voted on the charges. The Republicans could not muster enough votes
to convict and Vice-President Burr closed the proceedings with the
pronouncement that Samuel Chase, Esquire, stood acquitted of all the
articles exhibited by the House of Representatives against him.

The impeachment of Chase was the prelude to another legal spectacle
soon to follow. Once more the leaders of the American bar were to have
an opportunity to emulate their English brethren. As Burr, half-angel
and half-devil, presided while Samuel Chase awaited his fate at the
hands of the United States Senate, did he have an inkling that in the
next cause célèbre he would appear not as presiding officer, but in the
role of the accused?

This time the leaders at the bar were to have as the subject of their
contention not a mere associate justice of the Supreme Court but a
former Vice-President of the United States. The charge against him was
to be not just incompetence in office, but the high crime of treason.
An effort was to be made to show that Burr, who had been honored by his
countrymen with the second highest elective office in the land, had
responded to that generosity by doing his best to split the nation in
half while it was still struggling for survival.

The trial was to provide another battleground for the two new political
parties--the Federalists, representing wealth and aristocracy and
conservatism, and the Jeffersonian Republicans, recruited from the
masses and led by a man of no small fortune who was regarded by the
Federalists as a dangerous radical and a traitor to his class. It was
to be the scene, too, of a fight for power between the executive and
the judiciary reflected in the personalities of Thomas Jefferson and
John Marshall--a fight not only of immediate moment but one whose
outcome was to determine the relative positions of the two branches of
government for years to come.

Finally, if the accused was found guilty he faced not simply dismissal
from office, but death on the gallows. Even the colorful impeachment of
Warren Hastings fell short of that.




_Chapter_ I


At dusk on the evening of the twenty-sixth of March, in the year 1807,
there arrived in Richmond, Virginia, over the road from Fredericksburg,
a stagecoach bearing a party of seven men. It pulled up on Main
Street before the Eagle Tavern, one of the leading hostelries of the
town, where in the growing darkness the passengers descended without
attracting great attention.

One of them was a tall, thickset man with a weather-beaten face whose
air of authority marked him as leader of the group. His companion, of
less than average height, lightly built and erect, wore a rough suit
of homespun with pantaloons and a hat with a wide brim which drooped
disconsolately over his refined features. Those unmistakable evidences
of gentility were in striking contrast to the uncouth dress of a
backwoodsman.

The large man bore the name of Nicholas Perkins. He was registrar of
the land office of Washington County in faraway Alabama. The second man
was Aaron Burr, lately Vice-President of the United States, and now a
prisoner of the United States Army. The other five men were his guards,
especially picked to assure the safe delivery of the prisoner wherever
the authorities might direct. Theirs had not been an arduous task. With
one minor exception the prisoner could not have been more co-operative
and amenable.

The trip from Alabama had taken 21 days, but the journey which brought
Aaron Burr to his present situation might be said to have begun when
he first saw the light of day more than 51 years before. For nature
had endowed him at birth with a fatal combination of brilliance and
deviousness that in the end was to be his undoing.

No man could have been blessed with worthier forebears than was Aaron
Burr. The first of the line to arrive in this country was one John
Burr, a Puritan, who came to the Massachusetts colony with Governor
John Winthrop in 1630. Aaron, born on February 6, 1756, in Newark,
New Jersey, represented the fourth generation in descent from the
immigrant. His father, whose name he bore, was president of the College
of New Jersey, shortly to become Princeton. Aaron’s mother was Esther
Edwards Burr, daughter of the Rev. Jonathan Edwards, theologian,
metaphysician and scholar. Because of his many descendants who achieved
distinction, Jonathan Edwards was destined to go down in history as one
of the greatest of New England progenitors. Following the death of his
son-in-law, Edwards also held the office of President of Princeton.

When Aaron was still a child his father and mother died, and he and his
older sister Sally were sent to live with an uncle, Timothy Edwards, of
Elizabethtown. Uncle Timothy met his responsibility with Puritan zeal.
Aaron’s childhood was marked by strict discipline. Distasteful though
it may have been it bore practical results. A precocious youngster to
begin with, he progressed so rapidly in his studies that he was ready
to enter the sophomore class at Princeton at the age of 13 years. In
1772, aged 16, he was graduated at the head of his class.

Already he was beginning to exercise an irresistible charm. The hazel
eyes, which seemed to cast a hypnotic spell on whomsoever they fell,
the regular handsome features, and an ingratiating manner made him a
favorite among his fellows and aroused lively interest in those of the
other sex.

Sister Sally by now had married Tapping Reeve, another person of
outstanding intellect, who conducted a law school at Litchfield,
Connecticut. To Litchfield Aaron repaired, to begin professional
studies under his brother-in-law. Tradition has it that at Litchfield
commenced the series of love affairs that were to earn Aaron the
reputation of a philanderer. There he was when the Revolution broke out.

Fired with patriotism, Burr volunteered his services in time to join
the expedition against Quebec which was led by Benedict Arnold. In that
arduous and ill-fated campaign he conducted himself with courage and
fortitude and was rewarded by being made a captain on the headquarters
staff. He displayed signal gallantry in the heat of the battle and
General Montgomery, Arnold’s lieutenant, died in his arms.

Arriving in Albany flushed by his exploits in the Quebec campaign,
Burr received word that General Washington would find it agreeable to
see him in New York City where the Commander-in-Chief then had his
headquarters. On Burr’s appearance there the General invited him to
join his official family and Burr accepted. The prospect was indeed a
pleasing one.

On this occasion, however, the usually irresistible charm failed to
work. Burr, young and impetuous and fired with enthusiasm, apparently
expected to be taken into General Washington’s confidence and to share
in planning the grand strategy. On the contrary he was treated with
no particular deference and saw himself nothing more than a clerk.
Disappointed and discouraged he appealed to John Hancock, President
of the Continental Congress, who arranged to have him transferred to
General Putnam’s staff. His stay at general headquarters lasted only
about six weeks.

Other later contacts between General Washington and Burr proved to be
equally unsatisfactory. In the retreat of the army after the Battle of
Long Island Burr saved a brigade from capture and was annoyed when the
incident passed unnoticed by the General. When, a year later, a letter
came from the General notifying Burr of his promotion to lieutenant
colonel, instead of expressing gratitude Burr wrote a petulant reply
complaining of others who had been promoted ahead of him and asking
whether the late date of the commission was due to any misconduct on
his part.

In the winter of Valley Forge Burr proposed a raid on Staten Island
which Washington turned down. When in the same winter Generals Conway,
Lee, and Gates plotted to relieve Washington of command, Burr was
counted in the camp of the conspirators. At the Battle of Monmouth just
as Burr was about to attack, General Washington appeared on the scene
and countermanded the order. Yet when soon thereafter Burr suffered
a sunstroke which ended his military career, Washington accepted his
resignation “with regret.”

The most authoritative account of the relationship between Washington
and Burr is found in the memoir of Matthew L. Davis, Burr’s friend
of many years and his literary legatee. Davis states that Burr’s
prejudices against Washington became so fixed and unchangeable that
up to his dying day he referred to the retreat from Long Island with
acrimonious feelings for the commander. It is equally certain, adds
Davis, that for some reason Washington placed no confidence in Burr and
was exceedingly hostile to him.

Following his retirement from military service Burr was admitted to
the bar and opened a law office in Albany. He soon thereafter married
Theodosia Prevost, a widow ten years his senior and already the mother
of five children. She bore him two daughters. Little is known about one
of them who appears to have died in early childhood. The other, bearing
her mother’s name, lived on, as we shall see, to play a major role in
the life of her father.

Letters of the elder Theodosia to her husband reveal an almost pathetic
adulation. On at least one occasion Burr reacted with an impatience
such as he seldom showed to anybody. Still, the marriage appears to
have been on the whole a happy one, and it lasted twelve years until
the death of Mrs. Burr in 1794.

Burr’s intellect, his political instinct, and his charm combined to
speed him on his career. Casting his lot with the Jeffersonians, he
was elected to the New York Assembly. He moved to New York City and
soon was recognized as a leader at the bar. There he found Alexander
Hamilton already firmly established both in law and politics, and soon
to apply his power and genius to blocking Burr’s further progress.
Hamilton, like Burr, was a veteran of the Revolution and had served
on Washington’s staff; but, unlike Burr, Hamilton was highly esteemed
by the Commander-in-Chief. The friendship and mutual confidence there
cemented were carried on into civilian life and Hamilton, who shared
Washington’s conservative views, entered the first President’s cabinet
as Secretary of the Treasury. When Burr arrived in New York Hamilton
was leader of the local Federalists and the Federalists controlled the
town.

After the Revolution there was established in New York and other cities
in the East an organization bearing the name of the Tammany Society.
Its membership was composed of mechanics and like humble citizens and
it was dedicated to social, patriotic, and charitable activities.
Burr was the first man in public life to realize its potentialities
as a political force and to use the New York organization for the
advancement of his own political fortunes. Meanwhile he had been
appointed Attorney General of the state and from that vantage point was
elected to the United States Senate over General Schuyler, Hamilton’s
father-in-law. The victory, naturally enough, served to aggravate
Hamilton’s jealousy and increase his concern over this rising political
rival.

So far had Burr progressed in popular esteem that, in the Presidential
election of 1796, he received 30 electoral votes as against 71 for John
Adams, the victor, and 68 for Thomas Jefferson. His term in the Senate
having expired, he returned to the practice of law and also to the New
York Assembly.

In the Presidential election of 1800 Burr’s meteoric political career
reached its peak. He and Jefferson, running as Republicans, received
an equal number of electoral votes and the election was thrown into
the House of Representatives. For the first and last time Burr was
within one vote of winning the nation’s highest honor. But, on the
thirty-sixth ballot, Jefferson was elected. As was the rule in that
day Burr, who had received the next highest number of votes, became
Vice-President.

In the election Burr had put his political machine to such effective
use that the Federalist monopoly in New York was broken and enough
Republicans from the city won seats in the Assembly to give their party
control. Since the Assembly chose New York’s electors, and since in the
election of 1800 New York was the pivotal state, Burr could reasonably
claim credit for swinging the election which threw the Federalists out
of the government in Washington and put the Republicans in.

Hamilton was far from being a silent witness to these events. By now
he was thoroughly alarmed not only for himself but for the safety of
the nation whose future he saw in jeopardy if the Presidency were to
go to a man of the caliber he judged Burr to be. With all the vigor
at his command he threw himself into the contest to prevent Burr from
winning the necessary votes. “As unprincipled and dangerous a man as
any country can boast,” “as true a Cataline as ever met in conclave,”
a man whose “private character is not defended by his most partial
friends,” “bankrupt beyond redemption except by the plunder of his
country,” his “public principles have no other spring or aim than his
own aggrandizement”--these were among the extravagant epithets Hamilton
applied to Burr in letters to friends. As much as he disliked Jefferson
there was no question in Hamilton’s mind that the rangy Virginian
doctrinaire was the lesser of the two evils. Burr could lay his failure
to attain the Presidency to the violent animosity of Hamilton.

Burr’s political success in New York was disturbing not only to the
Federalists but equally so to certain members of his own party. The New
York Republicans were then divided into three factions made up of the
followers of the Livingston and Clinton families and of Burr. All three
groups were steeped in intrigue and so bankrupt of moral principle that
there was little choice between them. Albert Gallatin, Jefferson’s
Secretary of the Treasury and political mentor, was inclined to give a
preference to Burr. Not so Jefferson.

The presidential election over, Burr showed his pique by kicking over
the traces. In January 1802 a bill to repeal the hated judiciary act,
passed in the previous year by the Federalists, reached the Senate.
A motion to recommit led to a tie vote and left the decision to the
Vice-President. Burr voted with the Federalists. Then a few weeks
later, to add insult to injury, he appeared as guest at a dinner given
by the Federalists and there proposed a toast to “the union of all
honest men.” It was abundantly clear to those present that in the
select company of honest men Burr emphatically did not mean to include
Mr. Jefferson and the rest of the “Virginia dynasty.”

Such disloyalty to his party could not be overlooked. Within a few
days the Republican press, led by DeWitt Clinton’s New York _American
Citizen_ and William Duane’s Philadelphia _Aurora_, was in full cry.
There was no longer any doubt that Jefferson, the Clintons, and the
Livingstons were determined to strip Burr of his power and drive him
from the party.

Considering the conflicting temperaments of Burr and Jefferson the
split between the two men was inevitable. Though Jefferson professed
to believe that Burr had declined the blandishments of the Federalists
to have himself elected President in 1801, a truer opinion of Burr is
revealed in a letter written some years later to Senator William B.
Giles. Jefferson denied having ever had any hostile sentiment toward
Burr yet confessed that he had not thought him an honest, frank-dealing
man but rather “a crooked gun, or other perverted machine, whose aim or
shot you could never be sure of.”

An election for Governor of New York was scheduled for the spring of
1804 and though Burr’s term as Vice-President would not be up until
March of the following year he announced himself as a candidate.
But the Clintons and the Livingstons controlled the party machine.
While the rank and file were for Burr the leaders saw to it that the
nomination went to one Morgan Lewis. Since the Federalists had no
candidate of their own and Burr was well liked by many of them, he
decided to run as an independent candidate, counting on both Federalist
and Republican votes. Here he met with violent opposition from
Alexander Hamilton, who had no intention being of humiliated by Burr,
whom he disliked and distrusted, winning the election with the aid of
Federalist votes. In the bitter campaign which followed Lewis, with
the support of the regular Republicans and a minority of Federalists,
was swept into office. Burr’s defeat, attributed largely to Hamilton’s
intervention, spelled the end of his political career.

In the course of the campaign Hamilton attended a dinner at the home of
a friend in Albany. It was an assembly of intimates and Hamilton freely
expressed his opinion of Burr. The matter might have ended there had
not the remarks he was supposed to have made found their way into an
Albany newspaper, from which they were picked up by other newspapers
throughout the state and used extensively in the campaign. One remark
was to the effect that Hamilton had said Burr was a “dangerous man
and ought not to be trusted.” The other credited Hamilton with having
applied to Burr the term “despicable.”

Burr waited until the campaign was over. Then he wrote Hamilton a
letter stating that the remarks had been brought to his attention and
demanding an explanation. Hamilton’s reply was evasive. After further
exchanges failed to give satisfaction, Burr’s friend William P. Van
Ness presented himself before Hamilton with a challenge to a duel.
Hamilton accepted. The date set was July 11 and the place the heights
of Weehawken in New Jersey across the Hudson River from New York City.

On July 4, according to its custom, the Society of the Cincinnati,
composed of former officers of the American army in the Revolution,
held a convivial celebration in honor of the Declaration of
Independence. Both Hamilton and Burr were members and both attended.
Those present recalled later that Hamilton was unusually gay, leading
the others in song, while Burr was more serious than was his usual
custom at these parties. Their conduct toward each other was so correct
that nobody suspected that the two men shortly were to meet in a duel.

Early on the morning of the 11th Hamilton, accompanied by Nathaniel
Pendleton, his second, and Dr. Davis Hosack, his surgeon, crossed
the river and arrived at the rendezvous. They found Burr and Van
Ness already on the ground, busy clearing away the underbrush and
overhanging boughs. The formal greetings required by the “Code” were
exchanged. The seconds loaded, inspected and approved the pistols, and
agreed on the procedure.

The principals took their positions. In appearance they were evenly
matched. Both men were short of stature, trim in figure, alert but
calm. Whatever their shortcomings neither lacked physical courage. With
pistols gripped they awaited instructions which were not long in coming.

The order “Fire!” was given by Pendleton in a loud voice, and two
shots followed. Burr stood unmoved; Hamilton fell forward on his face.
Pendleton and Hosack rushed to the wounded man’s side. Burr made a
motion as if to do likewise but was restrained by Van Ness, and after
removing their hats in respect for their opponent they left the scene.

Hamilton managed to tell Dr. Hosack he believed the wound was fatal
before he lost consciousness. The ball had passed through his liver and
lodged in his spine. He was rowed back across the river to New York
and, suffering great pain, lingered through the day and night and died
the following afternoon.

An incident which occurred on Burr’s return to Richmond Hill, his
handsome country home outside the city, affords a momentary glimpse
into the strange character of the man. A young relative, unaware of
what had happened, dropped by and found Burr engrossed in ordinary
household matters. He accepted an invitation to breakfast where the
conversation was confined to general topics. After breakfast the young
man said goodby and went down to Wall Street where a friend inquired
if he had heard that Burr had killed Hamilton in a duel. “Impossible,”
exclaimed the relative, “I have just had breakfast with the Colonel and
he said nothing about it.”

Those who knew him well say that Burr would have expected no mourning
had he, and not Hamilton, been killed.

But if Burr’s conscience was clear, not so that of the local community.
Before this meeting public opinion had turned strongly against dueling
as a means of settling personal differences. Anger reached fever heat
when the victim was so distinguished and popular a man as Hamilton. The
public cried out for punishment. Burr was indicted for murder in New
Jersey and for a misdemeanor in New York. To escape the action of the
courts he had to leave home and, as he expressed it, “give a little
time for passions to subside.”

When men faced the possibility of death in a duel it was customary
for them, on the eve of the meeting, to set down parting messages.
Burr’s on this occasion was a touching farewell to his daughter
Theodosia. Hamilton’s contained an apology for his attacks on Burr.
Confessing that in some particulars he might have been influenced
“by misconstruction of misinformation,” he concluded: “It is also my
ardent wish that I may have been more mistaken than I think I have
been, and that he, by his future conduct, may show himself worthy of
all confidence and esteem, and prove an ornament and a blessing to the
country.” Later events were to give a prophetic quality to the doubt
expressed.

The situation in which he found himself did little to disturb Burr’s
natural buoyancy. He allowed himself to be involved in a romantic
episode with a lady named Celeste and wrote gaily to Theodosia: “If
any male friend of yours should be dying of ennui, recommend to him to
engage in a duel and a courtship at the same time. _Prob. est._”

Burr’s objective at this time was a reunion with Theodosia, who had
married Joseph Alston, a wealthy South Carolina planter. The Alstons,
and their little son Aaron Burr Alston, had a home in Charleston.
Before going there Burr spent a brief vacation at St. Simon’s Island,
Georgia. His traveling companion, who acted also as secretary and
aide-de-camp, was Samuel Swartwout, whom Burr described as “a very
amiable young man of twenty or twenty-one.” Samuel was the younger
brother of John Swartwout, onetime Collector of the Port of New York
and a political ally of Burr who had been ignominiously discharged by
Jefferson. More will be heard of Samuel.

In the journey from Georgia to Charleston Burr included a 200-mile
canoe trip by inland waterways which revealed his exceptional powers
of endurance at the age of 48 years.

Around the beginning of the New Year of 1805 Burr was back in
Washington as presiding officer of the Senate. His admirable conduct
of the impeachment trial of Justice Samuel Chase has been mentioned.
But his official days were numbered. In the election of 1804 the
Republicans chose DeWitt Clinton, his New York rival, for second place
on the ticket. The Republicans were again the victors and Jefferson and
Clinton took office on March 1, while Burr went out.

The Vice-President made a dramatic exit. On the eve of his departure
he addressed the Senate. No scribe was at hand to record for posterity
his exact words. He himself stated that he had made no previous
preparation, but spoke merely from the heart. What posterity does know
is that he spoke so earnestly, so eloquently, and so convincingly
that some of his colleagues in that austere body broke down and wept
unashamedly. When he had finished, in spite of the duel, in spite of
political animosities and suspicions, they “Resolved, unanimously, that
the thanks of the Senate, be presented to Aaron Burr, in testimony of
the impartiality, dignity and ability with which he has presided over
their deliberations, and of the arduous and important duties assigned
him as President of the Senate.”

Was he not to be excused if, with such impressive evidence of magic
power over his fellow men, he was led to imagine that destiny still had
great things in store for him?

Yet, for the moment, there were serious defects in his fortunes which
called for immediate repair. He was out of political office. The
indictments against him in New York and New Jersey made it impossible
for him to return home to the practice of law which hitherto he had
found lucrative. Always extravagant in his tastes, and chronically
living beyond his means, he was now heavily in debt. Soon after the
duel he had been obliged to sell Richmond Hill for $25,000 to meet his
more pressing obligations. As one of his biographers says of him, he
was at this point what is popularly described as “a ruined man.” Under
these discouraging circumstances Burr turned his eyes to the West.




_Chapter_ II


The United States census of 1800 showed a population of 5,308,483
persons, of whom one fifth were slaves. The bulk of it was in the
states along the eastern seaboard; west of the Allegheny Mountains were
fewer than 500,000 settlers, chiefly in Ohio, Kentucky, and Tennessee.
The mountains served as a rugged barrier cutting off the westerners
almost completely from the East and giving them a sense of political as
well as physical detachment.

The only means of communication overland were three crude highways
largely limited to travel by horseback or by the great Conestoga
wagons drawn by six horses which carried such commerce as there was
between the two areas. One road led from Philadelphia to Pittsburgh,
another followed the line of the Potomac River through Maryland to the
Monongahela, and a third ran through Virginia and crossed the mountains
into Kentucky and Tennessee.

Once the tributaries of the Mississippi River were reached river craft
provided a more luxurious mode of travel and also transported freight.
The staple products of the western country were floated downstream on
flatboats to New Orleans to be sold there and shipped by sea. Sometimes
their owners went along to market their goods in the thriving young
cities of the East and returned home across country on horseback.

That was why Spanish control of the mouth of the Mississippi at New
Orleans, involving refusal of the right to deposit goods there, had
been so irritating to the people of the West. The westerners with
considerable justification considered the easterners indifferent to
their problem and felt they were getting precious little in return for
the taxes they paid to the central government. During the period of the
Confederation when the prospect of a solid, united nation was anything
but sure, a separatist movement sprang up in Kentucky and Tennessee.
Its object was an independent nation west of the Alleghenies under
the protection of Spain, whose colonial officers encouraged the idea.
Though the so-called “Spanish Plot” had the support of influential men,
it was not accepted by the rank and file. The purchase of the Louisiana
Territory in 1803, with the control of New Orleans, and the granting
of statehood to Kentucky and Tennessee, served further to weaken the
separatist urge.

Magnificent as the Purchase eventually proved to be, it had serious
flaws. The original mission of Livingston and Monroe to France called
for the acquisition of the Floridas. Yet the final settlement did not
include East Florida and left the claim to West Florida in doubt.
Equally vague, and therefore a cause for controversy, was the Texas
boundary. These questions, of great moment to the South and West, were
little understood or bothered about by the rest of the country. They
did, however, give grave concern to President Jefferson. Acquisition
of the Floridas became an obsession with him and, until the issue was
settled, war with Spain was always an imminent possibility. The Spanish
did not help ease the tension when they massed troops on the frontier.
Meanwhile in Europe the Napoleonic wars were resumed and Spain, as an
ally of France, returned to her irritating practice of seizing American
merchant ships that were alleged to be carrying cargoes to Britain.

Thus it came about that in his message to the Ninth Congress in
December, 1805, President Jefferson’s charges against Spain were so
violent and his warning of retaliation so strong that many interpreted
it as being virtually the introduction to a declaration of war. It
was so played up by the Republican press throughout the country. This
widespread belief in the imminence of armed conflict was to have
an important bearing on the activities of Aaron Burr in the West.
The general public did not know that the threats in the message were
primarily for Spanish consumption and that in a secret communication
Jefferson was proposing simultaneously an amicable settlement of the
Floridas dispute through purchase.

In the spring of 1805, immediately after terminating his duties in
Washington, Burr set out on horseback along the highway for Pittsburgh,
even then a flourishing center of trade. There he purchased a
commodious houseboat and began a journey down the Ohio River. The boat
contained a dining room, kitchen with fireplace, and two bedrooms; the
roof, running the length of the craft, served as a porch and a place
for exercise. Burr’s ultimate destination was New Orleans but he made
a leisurely progress, stopping frequently at settlements along the
river. In that remote country any visitor from the East was welcome and
none more so than the distinguished and charming ex-Vice-President.
In the West no stigma was attached to dueling, but rather admiration
was bestowed on a man who had practiced it. And, since most westerners
were Jeffersonian Republicans, the fact that Burr’s victim had been a
Federalist leader was more reason for applause than for condemnation.

One of Burr’s stops was at an island a few miles below Marietta, Ohio.
It was owned by an Irish gentleman named Harman Blennerhassett who
had erected a handsome mansion on it. The master was away but Burr
was graciously entertained by Mrs. Blennerhassett. The island and its
owners were to figure prominently later in the alleged conspiracy.

At Cincinnati Burr was entertained by Senator John Smith of Ohio,
a versatile fellow who, in addition to representing his state in
the Senate, acted in such diverse capacities as Baptist preacher,
storekeeper, speculator, and army commissary. There too Burr ran into
his old friend Jonathan Dayton, former U.S. Senator from New Jersey,
a kindred spirit whom he had known since college days at Princeton.
Dayton, like Burr, was now out of a job; and, like Burr, on the lookout
for an improvement in his fortunes.

Burr left the river and proceeded by land to Frankfort, Kentucky, and
from Frankfort to Nashville, Tennessee, where he was received with
public honor and invited by General Andrew Jackson to be his guest at
the Hermitage. Of his relations with Jackson more will appear later.

From Nashville Burr journeyed to Fort Massac, an army post on the Ohio
River not many miles above its confluence with the Mississippi, where
he had another significant meeting with an old friend of Revolutionary
War days, Maj. Gen. James Wilkinson. They had served together on
the expedition to Quebec. Wilkinson now held the important offices
of Commander-in-Chief of the United States Army and of Governor of
Louisiana Territory. In the previous winter Burr and Wilkinson had met
in Washington and it was reported they spent much time studying maps of
the Spanish territories that adjoined those of the United States in the
South and Southwest. They had become sufficiently intimate to devise a
cipher to be used in their personal correspondence and so protect it
from prying eyes.

Wilkinson supplied Burr with a new houseboat equipped with sails and
assigned to it a detachment of soldiers which enabled Burr to make an
impressive entry into New Orleans in keeping with his station as a
statesman temporarily out of a job. Wilkinson provided him as well with
several letters of introduction. Wilkinson was to play a major role in
the alleged conspiracy.

On his arrival in New Orleans Colonel Burr was cordially welcomed by
Governor W. C. C. Claiborne as well as by the governor’s numerous
and vociferous enemies. He saw much of the leaders of the Mexican
Association, an organization sympathetic with Mexico’s aspirations for
liberation from Spain. He was well received also by the Roman Catholic
Bishop of New Orleans who favored this cause since at the time the
Spanish rulers were threatening to confiscate church property in Mexico.

After three weeks in New Orleans Burr retraced his steps northward
as far as St. Louis. Again he gave an impressive demonstration of
his physical fitness by traveling on horseback from New Orleans to
Nashville through the roughest sort of country. By the end of the year
he was back in Washington dining with President Jefferson at the White
House.

Late in the summer of 1806 he again set out for the western country.
Summer gave way to autumn and as the days grew shorter alarming rumors
about his doings spread through the East. Some of them reached the
White House. What was Burr up to?

Foremost among the informants was Joseph Hamilton Daveiss, U. S.
District Attorney for Kentucky, who owed his appointment to President
John Adams. As early as January he was writing letters to the President
warning him of a plot and implicating Burr. But the President was
not happy about this source of information. Daveiss was aided and
abetted by former U. S. Senator Humphrey Marshall of Kentucky. Both
were Federalists; both were brothers-in-law of the Chief Justice for
whom Mr. Jefferson had no fondness. Humphrey Marshall, a first cousin
of John Marshall, and Daveiss had married John’s sisters. Furthermore
all the people they mentioned as being involved in the conspiracy were
Republicans. Naturally the President wondered why his political enemies
should be taking so much trouble to keep him informed, and suspected
their motives.

Receiving no encouragement from the President, Daveiss and Marshall
pursued their campaign alone. In July there appeared in Frankfort a
publication under the name of the _Western World_ with which Daveiss
and Marshall were closely identified. In its September issue it
openly charged that there was a conspiracy afoot to combine Kentucky,
Tennessee, Ohio, Indiana, Louisiana, and the Floridas into an
independent government. The newspaper added that while the majority of
the conspirators wanted to call a convention and obtain the consent
of Congress, a considerable number favored effecting their purpose
by force of arms. The statement turned out to be pure speculation;
nevertheless it was picked up and widely republished in the East.

Burr by this time was in Lexington, Kentucky. Daveiss now took another
step. In his capacity as district attorney he appeared in the Federal
Court at Frankfort and accused Burr of having violated the laws of the
Union by setting on foot an unauthorized expedition against Mexico, a
country with which the United States was at peace. A similar charge
was preferred against Senator John Adair of Kentucky. Adair, a veteran
of the Revolution, had accompanied Wayne and Wilkinson on a campaign
against the Indians in the Northwest in 1791. He enjoyed Wilkinson’s
confidence, met Burr through him, and seems to have taken the attitude
that Burr was an advance agent of the Federal Government to arouse the
West for a war with Spain and conquest of the Southwest.

Learning of the charge, Burr presented himself at Frankfort and
demanded an examination. A grand jury was empaneled but Daveiss could
not round up his witnesses and asked for its discharge. Thanks to
his failure Daveiss was held up to public ridicule. Two weeks later
the same performance was repeated. Another grand jury was empaneled,
Daveiss again failed to assemble his witnesses, and again Burr was
discharged. So too was Adair. To add to his accuser’s mortification
Burr’s second victory was celebrated by a public ball.

The silence in Washington in the face of what was going on led to two
possible conclusions. One was that the administration was too weak to
put up a fight even against its own destruction. The other was that if
Burr actually was leading an expedition against Mexico he was doing so
with the co-operation and blessing of the Jefferson administration.

Burr’s dinner at the White House of the winter before lent credence to
that conjecture. The public could not know that Burr had requested the
meeting and had gone to the White House to beg some important office
in the administration, and to warn Jefferson that if he did not get
it he was in a position to do him much harm. Mr. Jefferson had enough
informants on Burr’s trail to comprehend what the threat implied.
But he was not to be bullied or frightened. He replied calmly that
he had always realized Burr had talent and hoped he would put it to
the public good. However, Burr must be aware that the public had lost
confidence in him. Mr. Jefferson did not know why Burr should wish to
do him harm but he feared no injury.

This was not the first time Burr had enjoyed the hospitality of the
White House at his own solicitation. Two years before, when he was
about to retire from the Vice-Presidency, he had dined with Mr.
Jefferson, had proposed an alliance between them, and on that occasion
too had asked for an office. The President had declined the request.
He thought the meeting sufficiently important to note it in his diary,
remarking that Burr’s conduct had always inspired him with distrust.
Evidently Jefferson was not to allow this distrust to forbid Burr the
White House. No doubt he hoped to derive information from such contacts
and was so confident Burr could do him no harm that he was indifferent
to the use which Burr might put the show of intimacy. Unfortunately, at
this critical moment the policy left the country uncertain as to how
far the administration was implicated in Burr’s operations.

At last the Government at Washington acted. Following discussions by
the Cabinet on October 22 and 25, John Graham, secretary of the Orleans
territory, who was in the East and about to return to his post, was
ordered to stop in Ohio and Kentucky on his way westward and inquire
into Burr’s movements. He arrived in Marietta during the middle
of November where he was warmly welcomed by Harman Blennerhassett
who talked freely with him. It seems that in his effort to impress
Blennerhassett, Burr had told him that Graham was concerned in the plot.

Graham proceeded to Chillicothe where the Ohio Legislature was sitting
and persuaded that body to authorize the governor to use the militia
to seize Burr’s boats that were building at Marietta. He then went
to Kentucky and induced its legislature to take action to halt the
conspiracy. He was too late, however, to prevent a flotilla under the
command of Blennerhassett from passing down the Ohio River to join
Burr’s contingent at the mouth of the Cumberland.

On November 27 the President issued a proclamation that was broadcast
throughout the western country warning all good citizens to withdraw
from unlawful enterprises. Thus he made it emphatic that whatever might
be taking place was without the Government’s sanction.

Simultaneously orders were dispatched to the civil authorities, from
Pittsburgh to New Orleans, putting them on the alert and directing them
to use regular troops and militia to thwart any illegal enterprise that
might be brewing. The proclamation was disappointing to the public
since it left the nature of the enterprise a mystery and did not so
much as mention Burr’s name.

On December 1 the President sent his regular message to Congress. He
made casual reference to the conspiracy, but again supplied no names.
Meanwhile the House of Representatives was growing restive. John
Randolph of Roanoke, the brilliant but eccentric Virginia member,
who had broken with the Jeffersonians and was now constantly looking
for ways to embarrass the administration, introduced a resolution
requesting from the President detailed information on the conspiracy.

Thus spurred to action, President Jefferson, on January 22, addressed a
special message to the Senate and House of Representatives. He stated
that in answer to their request he was transmitting to them information
received by him touching on “an illegal combination of private
individuals against the peace and safety of the Union, and a military
expedition planned by them against the territories of a power in amity
with the United States, with the measures pursued for suppressing the
same.”

At last the President was specific. The prime mover, he said, was Aaron
Burr, “heretofore distinguished by the favor of his country.”

As early as September, the message continued, the Government had
received reports of agitation in the western country. Then in the
latter part of October the objects of the conspiracy began to be
perceived. But they were still so involved in mystery that nothing
distinct could be singled out for pursuit. However, the Government had
sent a trusted agent to investigate the plot.

Then, said the President, on November 25 the Government had received
from General Wilkinson, Commander-in-Chief, a letter in which the
General reported having been visited by a confidential agent of Burr,
with communications partly written in cipher, and partly oral, setting
forth his designs and offering Wilkinson such emolument and command as
to engage him and his army in the unlawful enterprise.

But, declared the President, “The General, with the honor of a soldier
and the fidelity of a good citizen, immediately dispatched a trusty
officer to me with the information of what had passed. Thanks to the
General’s letter and other information received a few days earlier, it
was possible to develop Burr’s general design.”

It appeared, said Jefferson, that Burr contemplated two distinct
objects, which might be carried on either jointly or separately, and
either the one or the other first, as circumstances should direct.

One of these was the severance from the Union of the states west of the
Allegheny Mountains.

The other was an attack on Mexico.

The President mentioned also as a third object a settlement on what
he called “a pretended purchase” of a tract of country on the Washita
River in northern Louisiana. As the President interpreted it, this
third object, however, was merely to serve as a pretext for Burr’s
preparations in collecting men, boats, and supplies, and as an
allurement for such followers as really wished to acquire settlements
in that country. It also was to serve as a cover under which to retreat
in the event of the final discomfiture of both branches of his main
design.

But, said the President, Burr had found that the attachment of the
western country to the Union was not to be shaken. Its dissociation,
therefore, could not be obtained through the consent of the
inhabitants, and Burr’s resources were inadequate to effect his purpose
by force. So, instead, Burr had determined to seize New Orleans,
plunder the bank there, take possession of the military and the naval
stores, and proceed on his expedition to Mexico.

Burr, the message further charged, had seduced good and well-meaning
citizens--some of them by pretending he enjoyed the confidence of the
Government and was acting under its secret patronage, others by offers
of lands on the Washita.

In response to his proclamation of November 27, reported the
President, Governor Tiffin of Ohio and the Ohio Legislature had, “with
a promptitude, energy and patriotic zeal, which entitled them to a
distinguished place in the affection of their sister states, effected
the seizure of all the boats, provisions and other preparations within
their reach, and thus gave a first blow, materially disabling the
enterprise at its outset.”

The President went on to say that when the authorities of Kentucky and
Tennessee received the proclamation and learned the true circumstances,
they followed the admirable example set them by their sister state
of Ohio. The governors of New Orleans and Mississippi also had been
alerted. Great alarm had been caused in New Orleans by the exaggerated
accounts of Mr. Burr disseminated there.

But, according to the message, the faithful General Wilkinson had
arrived on the scene on November 24 and “immediately put into activity
the resources of the place for the purpose of its defense.” Great zeal
had been shown by the inhabitants generally.

In the present state of the evidence, said the President, some of it
delivered under the restriction of private confidence, neither safety
nor justice would permit the exposing of names, except that of the
principal actor.

Of Burr, he declared, his “_guilt is placed beyond question_.”

Such was the Government’s version of the conspiracy as conveyed by
President Jefferson to the Congress. The report was supplemented with
various letters and other confirmatory documents. It left no doubt that
the conspiracy had been crushed, even though at the time of its writing
the “principal actor” was still at large.

Meanwhile the “principal actor,” commanding a small body of men on
flatboats, was on his way down the Mississippi River. He had arrived
at a place called Cole’s Creek in Mississippi territory when he
first learned of the hue and cry raised against him by the President
and General Wilkinson. A few days prior to this he had voluntarily
surrendered himself to the territorial authorities and, after an
inquest like the two earlier ones in Kentucky, he had been dismissed
by a grand jury. Instead of indicting Burr the jury rebuked the
authorities for their overzealousness in interfering with him and his
men.

Burr had nothing to fear from the civil authorities of Mississippi, but
the military under Wilkinson’s command were quite a different matter.
According to his later testimony Burr imagined his life was in danger.
For the first and last time in his life he acted in a manner that
suggested cowardice. He deserted his followers. Disguising himself as
a backwoodsman he mounted a horse and started his flight. By this time
the alarm had been broadcast and everywhere people were on the lookout
for him.

It was Nicholas Perkins who, informed of the presence of a mysterious
stranger near Wakefield, in Washington County, Alabama, set out to
investigate. His keen eye noted that the boots showing below the
stranger’s pantaloons were much too fine for any ordinary countryman.
Burr, on being challenged, acknowledged his identity and agreed to go
with Perkins who turned him over to the military authorities at Fort
Stoddart, an army post north of Mobile.

The commander was a young Virginian, Lieutenant Edmund Pendleton
Gaines. Gaines engaged Perkins to deliver his prisoner to the
Government in Washington. On March 5 the party set out. The first part
of the journey, made on horseback, lay through the Cherokee Indian
country in Alabama and Georgia. Heavy rain increased the discomfort
of the travelers. Burr bore his hardships without a whimper and with
but one incident of insubordination. As a lawyer he knew his arrest
was highly questionable. South Carolina was the home of his son-in-law
where he might perhaps find sympathy. So, while passing through the
little settlement of Chester in that state, Burr leaped from his
horse and shouted, “I am Aaron Burr, under military arrest, and claim
the protection of the civil authorities.” Perkins, with his superior
size and strength, calmly took him around the waist, sat him back on
his horse, and the party proceeded. Thereafter, Burr traveled in a
gig. That is, until the party shifted to a stagecoach shortly before
reaching Richmond.

The original destination had been Washington. But at Fredericksburg,
Virginia, Perkins received counterinstructions from President Jefferson
to deliver his prisoner to the authorities in Richmond. So on their
arrival at the Eagle Tavern, Perkins’ task was nearly ended.

That explains why and how a former Vice-President of the United States
found himself in the toils of the law. The rumors of conspiracy that
had spread throughout the country during the last two years had now
been confirmed by the President of the United States. Burr’s guilt,
declared that highest authority, was “beyond question.” And, but for
the honor of Wilkinson the soldier and the fidelity of Wilkinson the
good citizen, who acted in the nick of time, no telling where the
country would be. Such was the official version.

No wonder the general public, in the face of the damning evidence,
expected the ensuing trial to be a mere formality. No wonder a toast
that became universally popular was drunk to “Aaron Burr--may his
treachery to his country exalt him to the scaffold, and hemp be his
escort to the republic of dust and ashes.”

The gallows might loom before him. Burr surveyed the prospect with his
accustomed calm.




_Chapter_ III


When fortune thus rudely delivered Burr at its gates Richmond was a
thriving community of over 5,000 souls. Of these from a third to a
half were colored slaves. The town, situated on the falls of the James
River, enjoyed the distinction of being the seat of government of a
commonwealth which, despite the loss of Kentucky, still extended from
the Atlantic coast to the Ohio River and included the present West
Virginia. It ranked as one of the important cities of the young nation
along with Boston, New York, Philadelphia, Baltimore, and Charleston,
South Carolina.

Richmonders boasted that their city, like Rome, was built on seven
hills. These overlooked the river on the north. The most conspicuous of
them was the lofty promontory known as Capitol Hill on which stood the
state capitol, an impressive structure with a columned portico facing
the river and some hundred or more feet above it. Credit for the design
was given to Jefferson who took as his model the Roman temple known as
the Maison Carrée at Nismes, France.

Richmond owed its commercial prosperity to being the city in the
state farthest inland on navigable water. It was dominated by Scotch
merchants who imported manufactured goods from Europe and sold them to
their fellow townsmen and the planters nearby. Then they bought from
the planters grain and tobacco which they marketed abroad or in the
cities to the north, taking a nice profit on each transaction.

The town had been laid out many years before by Col. William Mayo, a
friend of the second William Byrd, its founder. The Colonel adopted a
checkerboard plan, the streets running east and west paralleling the
river, each on a higher level than the other, and intersected at right
angles by streets running north and south. The capitol sat in the
middle of an open space of several acres known as Capitol Square, whose
steep slopes were scarred with unsightly gullies. Behind the capitol
the ground leveled off into a plateau whose north side, bearing the
name of Shockoe Hill, served as the fashionable residential section of
the town.

The Eagle Tavern to which Burr had been conducted stood on Main Street,
an east-west thoroughfare at the foot of Capitol Hill occupied chiefly
by shops and other business establishments. A trifle less refined than
the Swan Tavern at the top of the hill, it catered to a wide variety
of guests, including sportsmen, legislators, and planters who came
up to Richmond periodically for a brief respite from the monotony of
their plantations. The hostelry was identified by a sign, eight feet
by five, displaying a golden eagle. This was no ordinary bird. It had
been painted by the artist Thomas Sully, who in his later years was to
become one of the leading portraitists of his day and to number among
his subjects the young Queen Victoria of England. Sully got $50 for the
eagle, not an insignificant sum according to 1800 standards of value.

At the tavern Colonel Burr remained under informal arrest over the
weekend waiting to be handed over by the military to the civil
authorities. The warrant, issued by the Chief Justice of the United
States and written in his own hand, was based on the charges of treason
against the United States and of a high misdemeanor in preparing a
military expedition against the dominions of the King of Spain, with
whom the United States was at peace.

In the early days of the Federal judiciary there were no judges of
appeal, the appellant functions being performed by the justices of
the Supreme Court to each of whom was assigned a circuit. Virginia,
in which state Burr’s crimes were alleged to have been committed,
lay in the circuit assigned to the Chief Justice. The Judiciary Bill
of 1801, rushed through the Congress by the Federalists, provided for
appeals judges. But it had been repealed by the Jeffersonians. Thus the
presence of Chief Justice Marshall in Richmond on this occasion was
attributable to Jefferson’s counterattack on the Federalists, unmindful
though he may have been of the particular effect it was going to have
on the trial of Aaron Burr.

The formal procedure took place on Monday, March 30. It was a matter of
note among the Jeffersonians that the Chief Justice did not order the
prisoner to be brought to court but instead went himself to the Eagle
Tavern. They saw in this evidence of bias rather than a demonstration
of John Marshall’s consideration for a fellow man once exalted and now
humbled and reduced.

Over the weekend Colonel Burr had supplied himself with a suit and
fresh linen more in keeping with his station as a former Vice-President
of the United States than the homely disguise he had worn on making
his entry into Richmond. Shortly after mid-day Maj. Joseph Scott, the
United States Marshal for the Virginia district, appeared at Burr’s
quarters and politely informed him that the time had come for the
serving of the warrant. News of Burr’s arrival had spread through the
town and attracted a crowd of the curious to the tavern. It was “an
awfully silent and attentive assemblage of citizens” that looked on as
the Colonel was conducted by Marshal Scott to a retiring room where the
Chief Justice was waiting to examine him.

Present in the room with Judge Marshall were Caesar Rodney, newly
appointed Attorney General of the United States, and George Hay, the
District Attorney, representing the Government; and Edmund Randolph and
John Wickham, attorneys for the defense. Present also, in addition to a
few subordinates and friends of the accused, was Nicholas Perkins, who
had conducted the prisoner from Alabama to Richmond.

Of the principals the youngest man there was Caesar Rodney. He had just
turned 35 and was an enthusiastic Jeffersonian who had seen service
in the United States House of Representatives. His situation was
embarrassing since he had recently been on friendly terms with Burr.
Next in order of youth was Hay. Not a brilliant lawyer but a plodder,
and a determined one, he had rapidly forged to the front at the local
bar. In his rise he had no doubt been assisted by his loyal adherence
to Republican ideals. In an atmosphere that laid emphasis on birth it
was not overlooked that he was the son of Anthony Hay, keeper of the
Raleigh Tavern in Williamsburg. Richmond, however, was producing so
many self-made men that while the fact of humble origin may have been
noted, and perhaps mentioned privately, it placed no obstacle in the
path of those who were on their way up.

In contrast to these rising luminaries was Edmund Randolph, the eldest
in the group. Men developed early in those days and though Randolph
was only 54 years old he was nearing the close of a distinguished
career. He traced his descent from William Randolph of Turkey Island
and his wife Mary Isham. In producing worthy descendants these two
were to Virginia what Jonathan Edwards was to New England. They
produced in quantity as well as quality, and were referred to as the
Adam and Eve of Virginia. In the drama that was unfolding in Richmond
both prosecution and defense were represented by a rash of their
descendants. Proud though he may have been of his heritage, Aaron Burr
could not complain that in Richmond he was not largely in the company
of his social peers.

At the outbreak of the Revolution, leaving William and Mary College,
where he had been an apt student of the law, Randolph through his
breeding and ability gravitated to the staff of General Washington.
His military service was brief. It soon was apparent that, like
Jefferson, his talents were better suited to matters of state than to
the battlefield. From the age of 20 he was not out of office during
the succeeding 32 years. He served as mayor of Williamsburg, Attorney
General of Virginia, member of the Continental Congress, Governor
of his state, member of the Constitutional Convention, and Attorney
General of the United States in Washington’s Cabinet. Now in the
twilight of his career, he was present to add dignity to the defense.
As a staunch Federalist he considered it no more than his duty to lend
his talents to thwarting the Jeffersonians in their determination to
convict Burr.

Ten years junior to Edmund Randolph was his colleague John Wickham.
Wickham was something of an outsider to Virginia. Born on Long Island
in the colony of New York, the son of Tories, he was educated in
France for a military career. He returned home at the outbreak of the
Revolution just in time to be arrested by the American patriots, but
he was released in the care of a Virginia uncle. At the close of that
conflict he gave up the idea of a military career and read law. Now, at
the age of 44 years, he was the recognized leader of the Virginia bar.

Hay had measured swords with Wickham in the Richmond courts enough
times to recognize that he lacked Wickham’s skill and dexterity.
Wickham’s years abroad had endowed him with a sophistication unknown to
the average Virginia squire or merchant who traveled little beyond the
local frontiers. Tom Moore, the supercilious young Irish poet who paid
this country a critical visit at the turn of the century and abused
almost everybody from the President down, made an exception of Wickham.
He said he was the only gentleman he had discovered during his American
travels and that he would grace any court.

Yet in this galaxy of talent the Chief Justice was as usual the
dominating figure. His commanding height marked him out. His ruddy,
weather-beaten complexion setting off his fine dark eyes, his genial
expression suggesting a quiet sense of humor, his obvious indifference
to dress, and his loose-jointed awkwardness, all these combined to make
a pleasing impression of naturalness and sincerity. He and Colonel Burr
were not strangers. They had known each other in Washington when Burr
was in the Senate and Marshall in the House. Marshall, too, when Chief
Justice, had appeared both as spectator and witness at the Chase trial.

The proceedings at the tavern were brief. Hay had objected to the
locale in the first place--it was the strategy of the prosecution
to keep popular emotion high by putting on a public spectacle. He
consented to the meeting in the tavern only on condition that, if
arguments were needed, they would be heard at the Courthouse behind the
Capitol.

It was the not unwelcome task of Nicholas Perkins to give a dramatic
account of the detection of Colonel Burr under his disguise, his
arrest, and the long and tedious journey from Alabama to Richmond. He
spoke his piece with evident relish. When he had finished Hay submitted
a motion in writing that the prisoner be committed on the charges both
of treason and high misdemeanor. Counsel agreed that argument would be
necessary. Hay then moved adjournment to the Courthouse and the motion
was granted. The Chief Justice released Colonel Burr on bail at $2,500
for his appearance there at 10 A.M. on the morrow. Until then he was
free to go about the town as he pleased.

When, next day, at the appointed hour the Chief Justice took his seat
on the bench, the courtroom was filled to overflowing while a large
crowd outside clamored for admission. It was a half hour after the time
set for the hearing when Colonel Burr at last arrived. He apologized
for keeping the Court waiting, explaining that he had misapprehended
the hour.

Rather than disappoint those who could not find a place in the
courtroom, the Chief Justice consented to move the hearing to the great
hall of the House of Delegates in the Capitol nearby. This was a shabby
chamber, unimpressive except for its size; it could accommodate a large
crowd and, before the trial was over, all its space was going to be
needed.

It may be imagined that Colonel Burr observed with a critical eye the
drabness of the setting. Had he been in charge of the arrangements,
as in the trial of Justice Chase, surely he would have ordered things
differently. Colored hangings would have cheered up the premises no end
and perhaps even some artistic embellishment could have been thought
up for the plain sand boxes distributed around the hall at intervals
for the convenience of the tobacco chewers. In this austere atmosphere
all the proceedings of the trial thereafter were to take place. It was
notorious that counsel on both sides, like actors in a play, addressed
their remarks to the audience as much as they did to the bench.

Virginia was a big state with a variety of people. Since the crimes
with which Colonel Burr was charged were alleged to have taken place
on the western frontier, that territory was well represented both with
respect to witnesses and spectators. So it was that in the trial room
dignified gentlemen with hair powdered in the old style, and dressed in
fine ruffled linen, black silk and knee breeches, rubbed shoulders with
long-haired frontiersmen in leather hunting shirts and pantaloons.

The argument was opened by Mr. Hay who quoted the act of Congress
which made it a high misdemeanor for any person in the United States
territory to prepare an expedition against a nation with whom this
country was at peace. As evidence of Colonel Burr’s violation of the
act he cited a letter written by the prisoner to General Wilkinson.

Hay’s motion also asked that Burr be committed on a charge of treason.
He based this request on the Burr letter to Wilkinson, to an affidavit
given by the General, and also on an affidavit of one William Eaton.
Eaton too bore the title of General, but its authenticity was
questioned.

Burr’s letter to Wilkinson had been written in Philadelphia in a cipher
previously agreed upon between them. It was dated July 29, 1806, and
read:

“Your letter, postmarked 13th May, is received. At length I have
obtained funds, and have actually commenced. The eastern detachments
from different points, and under different pretences, will rendezvous
on the Ohio, 1st of November. Everything internal and external favors
our views. Naval protection of England is secured. Truxton [Commodore]
is going to Jamaica to arrange with the admiral on that station. It
will meet us at the Mississippi. England, a navy of the United States,
are ready to join, and final orders are given to my friends and
followers.

“It will be a host of choice spirits. Wilkinson shall be second to
Burr only, and Wilkinson shall dictate the rank and promotion of his
officers. Burr will proceed westward 1st of August, never to return.
With him go his daughter and his grandson. The husband will follow
in October, with a corps of worthies. Send forthwith an intelligent
friend with whom Burr may confer. He shall return immediately with
further interesting details: this is essential to harmony and concert
of movement. Send a list of persons known to Wilkinson west of
the mountains, who could be useful, with a note delineating their
character. By your messenger, send me four or five commissions of your
officers, which you can borrow under any pretence you please.

“Already are orders given to the contractor to forward six months’
provision to points Wilkinson may name; this shall not be used until
the last moment, and then under proper injunctions. Our project, my
dear friend, is brought to a point so long desired. Burr guarantees
the result with his life and honor, with the lives, and honor, and the
fortunes of hundreds of the best blood of our country.

“Burr’s plan of operation is to move down rapidly from the falls on the
15th of November, with the first five hundred or one thousand men, in
light boats now constructing for that purpose, to be at Natchez between
the 5th and 15th of December, there to meet you, there to determine
whether it will be expedient, in the first instance, to seize on, or
pass by, Baton Rouge [then held by the Spaniards]. On receipt of this
send Burr an answer. Draw on Burr for all expenses, etc. The people of
the country to which we are going are prepared to receive us; their
agents, now with Burr, say that if we will protect their religion, and
will not subject them to foreign Power, that in three weeks, all will
be settled. The gods invite us to glory and fortune: it remains to be
seen whether we deserve the boon.

“The bearer of this goes express to you; he will hand a formal letter
of introduction to you, from Burr; he is a man of inviolable honor and
perfect discretion, formed to execute rather than project, capable of
relating facts with fidelity, and incapable of relating them otherwise.
He is thoroughly informed of the plans and intentions of ------, and
will disclose to you, as far as you inquire, and no further. He has
imbibed a reverence for your character, and may be embarrassed in your
presence; put him at ease, and he will satisfy you.”

To make doubly sure the letter would reach Wilkinson Burr made two
copies of it, one to go overland and the other by sea. Bearer of the
overland message was Samuel Swartwout, who will be recalled as Burr’s
companion on the trip south following the duel. Bearer of the copy of
the letter going by sea was one Dr. Justus Eric Bollman, a German and a
soldier of fortune. Bollman was distinguished chiefly for a desperate
attempt at rescuing General Lafayette from imprisonment in Austria
during the French Revolution.

Swartwout accomplished his mission first, coming up with Wilkinson
in camp at Natchitoches in northern Louisiana, where Wilkinson was
standing guard against a threatened crossing by the Spaniards of the
Sabine River, boundary between Louisiana and the present State of
Texas. Bollman presented himself to Wilkinson shortly thereafter in New
Orleans.

But, so President Jefferson’s message to Congress declared, the
indignant and patriotic Wilkinson, instead of listening to Burr’s
blandishments and preparing to take second rank on the treasonable
expedition of which the letter treated, sent a warning to Washington,
arrested both Swartwout and Bollman, and packed them both off to the
capital charged with high misdemeanor and treason. On their arrival
in Washington, in order to hold them, William B. Giles, Jefferson’s
leader in the Senate, got a bill through that body suspending the writ
of habeas corpus. But the House refused to go along. The Chief Justice
then issued the writ, heard the charges, and released the two men,
declaring that charges had not been proved. The uncooperative behavior
of the Chief Justice on this occasion did not improve Mr. Jefferson’s
opinion of him.

Equal in importance with Burr’s letter was the affidavit of William
Eaton. A Connecticut Yankee, Eaton first appeared on the public scene
as a captain in the United States Army. In 1804 he was serving as
United States Consul at Tunis. It was a time when the infant United
States Navy was waging sporadic warfare with the Barbary States.
Commodore Samuel Barron, commanding our Mediterranean fleet, dispatched
Eaton on a mission to Alexandria where one Hamet, former Pasha of
Tripoli, had taken refuge after being driven from his throne by his
elder brother. Eaton’s mission was to restore Hamet to the throne.

Assembling a tatterdemalion force of Greeks, Italians, and Arabs to the
number of 500, Eaton led them on a gruelling march across the Libyan
desert to Derne. The expedition made the 600 miles in fifty days and on
top of it assaulted and captured the city.

But here the United States policy changed. New negotiations led to
recognition of the usurping brother. This altered state of affairs
caused a break between Barron and Eaton and the latter returned home,
indignant over the manner in which he had been treated and demanding
from an indifferent Congress remuneration for his services. Through his
military exploits he had acquired the title of General, but he held no
such commission from the United States Government.

Where a man had a grudge against the Government there repeatedly was
found the trail of Burr. So it was in the case of Eaton. In the winter
of 1805–06, following Burr’s return from his first trip to the West,
he and Eaton lived in the same boarding house in Washington and were
much in each other’s company. According to Eaton’s affidavit, Burr
told him he was organizing a military expedition against the Spanish
provinces on the southwestern frontier, giving him to understand he was
acting under the authority of the Federal Government. Eaton recalled
that at this time the controversies with Spain and the tenor of the
President’s message to Congress led to the conclusion that war with
that country was imminent. Having lately returned from Africa, he was
unaware, he said, of any suspicions against Burr and did not question
his patriotism. This, Eaton explained, was why at first he consented
to embark on the enterprise and pledged himself to Colonel Burr’s
confidence.

But, Eaton continued, as time passed certain indistinct expressions
and innuendoes aroused his suspicions that Burr had other projects
in mind. He noted in particular that Burr was critical of the
administration, accusing it of want of character, energy, and
gratitude. Eaton suspected Burr of arousing his resentment by dilating
on the harsh treatment Eaton had received on the floor of Congress in
connection with his African expedition, and the delay in adjusting his
financial claims against the United States.

By this time, declared Eaton, he had begun to suspect that Burr’s
expedition was unlawful, but he had pretended to be impressed in
order to draw Burr out. It was then, he said, that Burr laid open his
proposal of revolutionizing the territory west of the Alleghenies and
establishing an independent empire there. New Orleans, said Eaton, was
to be the capital and Burr was to be the chief, organizing a military
force on the Mississippi and carrying the conquest to Mexico.

Eaton said he protested that the western people were attached to
the present administration and that Burr would be opposed in his
designs by the regular army of the United States stationed on the
frontier. To this, he said, Burr replied that he had the preceding
season made a tour through the country and attached to his person the
most distinguished citizens of Tennessee, Kentucky and the Orleans
territory; that he had inexhaustible resources and funds; that the
United States Army would act with him; that he would be reinforced
by from 10,000 to 12,000 men from the aforementioned states and
territories; and that he had powerful agents in the Spanish territory.

Eaton said he told Burr he had known Wilkinson during the Revolution
and ventured the opinion that he would act as lieutenant to no man in
existence. Burr assured him he was wrong and led him to believe that
the plan of the revolution had been made in concert with Wilkinson.

The affidavit then mentioned a plan for overthrowing the Government
in Washington, assassinating the President, and revolutionizing the
eastern states.

Eaton said Burr had given him nothing on paper, nor did he know of
anybody to whom Burr had made similar advances. It was, therefore, his
word against Burr’s. He did not dare place his testimony in the balance
against the weight of Burr’s character, fearing that Burr would turn
the tables on him. He was therefore uncertain which way to proceed.
He at last decided that the best way to save the country was to get
Burr out of it. That was why he approached President Jefferson with
a suggestion that Burr be sent abroad as an ambassador. He mentioned
Paris, London, or Madrid. The President, according to Eaton, signified
that the trust was too important and expressed something like doubt
about the integrity of Burr.

Perceiving that the subject was distasteful to the President, said
Eaton, and to impress him with the danger, he told him there would
be insurrection in the Mississippi area within eighteen months. He
quoted the President as replying that he had too much confidence in the
integrity and attachment to the Union of the citizens of that country
to admit any apprehension of that kind. Such, in substance, was Eaton’s
affidavit.

Mr. Wickham was the first lawyer of the defense to open the attack on
it. There was, he declared, no evidence of treason in it. As for an
attack on the Spanish settlement, if Burr had such an intention it was
not only innocent but meritorious. He reminded the court that at that
time there were strong circumstances pointing to a war with Spain and
he cited the President’s message at the opening of the Ninth Congress
in December, 1805, in which the provocations were mentioned.

Wickham was followed by his colleague Randolph who, in a reminiscent
mood, stated that though he had long been conversant with criminal
jurisprudence, never before had he heard of anybody attempting to prove
an overt act of treason from a supposed intention.

Colonel Burr now made clear his intention to act as his own counsel in
the trial. Addressing the court he ventured the opinion that there was
no cause for all this concern. He charged that Wilkinson had alarmed
the President and that the President had alarmed the people. When he,
Burr, heard that charges were being preferred against him while he was
in the West, had he not voluntarily hastened to meet investigation both
in Kentucky and Tennessee? Yes, he had fled later, but only after he
had learned that military orders had been issued to seize his person
and his property. He protested that there was no proof of his guilt
other than the affidavits of Wilkinson and Eaton. As for these they
were “abounding in crudities and absurdities.”

Attorney General Rodney next addressed the court. He had, he said,
looked upon Colonel Burr as his friend and, in fact, had received
him in his house. But now the chain of circumstances showed without
doubt that he was guilty. He thought that the evidence presented was
sufficient for commitment. It was his contention that for a mere
commitment no such complete testimony was needed as in an actual
trial. This brief comment from the Attorney General proved to be the
last words he was to utter in the case. In a day’s time illness in
his family--or such was the excuse given--took him from Richmond and
the trial and he did not return. Whatever part he played in it was
performed in Washington.

Thereafter the burden of the prosecution fell on the conscientious and
hard-working Hay. The District Attorney, too, had had family sorrow.
A week before Burr’s arrival in Richmond he lost his wife, Rebecca, a
young woman of 25 years. But the bereaved husband had little time for
mourning. Nor did he allow his grief to interfere with the performance
of his official task with all the effectiveness his limited talents
could command.

When the arguments were over Judge Marshall introduced a procedure he
was to follow steadfastly throughout the trial. He adjourned court
and promised that he would deliver his opinion the following day. He
was as good as his word. The opinion was in writing. He had had the
evening before in which to review the arguments and from them arrive
at his own conclusions. Like all his opinions, this one was closely
reasoned and carefully drawn. Nobody was going to be given grounds for
charging him with such arbitrary and high-handed behavior on the bench
as had brought about the impeachment of Justice Chase. Again a numerous
audience was on hand to hear what the Chief Justice had to say.

Judge Marshall quoted Blackstone to the effect that only if it was
manifest that no crime had been committed or that the suspicion was
wholly groundless would it be lawful to discharge a prisoner. Otherwise
he must be committed to prison or released on bail. By that, he
continued, he did not mean to say that the “hand of malignity may grasp
any individual against whom its hate may be directed.” His audience
pricked up their ears, especially those who were anxious to catch
the Chief Justice in a false step. Was not the hand of malignity to
which he referred that of President Jefferson? It sounded suspiciously
like it. One man who put that interpretation on it informed the Chief
Justice who, immediately after adjournment, called to the bench those
who were reporting the trial and stated explicitly that the observation
had no allusion to the Government’s conduct in the case before him.

The Chief Justice’s conclusion was that enough evidence had been
presented to warrant a commitment for a high misdemeanor. But a
commitment for treason was a different matter. He pointed out that the
assembling of forces to levy war was a visible transaction. Numbers
must witness it. If, therefore, in November or December last a body of
troops had been assembled in Ohio, it was impossible to suppose that
affidavits establishing the fact could not have been obtained by the
last of March. The evidence that had been given proved the loyalty of
the western people to their eastern brethren. How strange then that no
man could be found who would voluntarily depose that a body of troops
had actually assembled for an object which had been detested by these
people. He concluded: “I cannot doubt that means to obtain information
have been taken on the part of the prosecution; if it existed, I cannot
doubt the practicability of obtaining it; and its non-production, at
this late hour, does not, in my opinion, leave me at liberty to give
to those suspicions which grow out of other circumstances, the weight
to which at an earlier day they might have been entitled. I shall not,
therefore, insert in the commitment the charge of high treason.”

On the commitment on the charge of high misdemeanor the Chief Justice
set bail at $10,000. Hay thought it too low and said so. Wickham
commented that Burr had few friends in Richmond. What is more he had
heard several gentlemen of great respectability say they were unwilling
to appear as bail for him for fear of being regarded as enemies of
their country. The defense was careful to lose no opportunity to
emphasize the popular prejudice against their client.

Nevertheless, in spite of Mr. Wickham’s concern, sureties were found
and Colonel Burr was released for his appearance at the next meeting
of the Court of Appeals for the Virginia District on May 22. In the
initial skirmish the prosecution had met with a setback. The prisoner
was not to be treated as a man who had tried to destroy the nation and
who might still be dangerous if permitted to roam at large.

From the White House the proceedings in Richmond were being closely
watched. Details were reported as fast as messengers on horseback
could carry dispatches from Attorney Hay to President Jefferson. The
President was hardly surprised at the direction events were taking.
The Chief Justice had been a thorn in the flesh from the moment Mr.
Jefferson took office. His latest ruling was strictly according to
form. Well, some day he would overstep the mark. The President must be
on the alert to seize the opportunity when that day came.




_Chapter_ IV


To Thomas Jefferson and John Marshall history has assigned positions
in the first rank of the nation’s great men. Their backgrounds show a
remarkable similarity. Both were Virginians, Jefferson being twelve
years senior to Marshall. Both were the sons of frontiersmen, Peter
Jefferson having established himself in Albemarle County and Thomas
Marshall in Fauquier County, a short distance to the north, when those
counties were still outposts of the Virginia colony. Both were tall and
loose-jointed, but where Marshall was dark, Jefferson was sandy-haired
and freckled. Jefferson’s indifference to dress matched that of
Marshall.

They were, according to Virginia’s intricate way of determining
relationship, “third cousins once removed,” being descended through
their mothers from the famous William Randolph and Mary Isham. Both
were educated to the law and both were students of Virginia’s most
distinguished law teacher, Chancellor George Wythe, though Marshall’s
instruction under him was only for a few weeks. In short there was
every reason why these two highly gifted Virginia cousins should share
the same attitudes and prejudices and hold the same opinions on the
great issues of the day.

But fate had decreed otherwise. Early in their relationship distrust
and antagonism developed. Marshall’s biographer Beveridge traces it to
the harsh days of the American Revolution.

The Marshalls, father and son, were warriors who volunteered their
services on the outbreak of hostilities. They fought at Great Bridge,
the first engagement of the Revolution on Virginia soil. They later
were present at the battles of Brandywine and Germantown. John was at
Valley Forge and by then promoted to captain. According to all accounts
he was a shining light in that winter of gloom, spreading good cheer
through the camp and idolized by his men. In the next campaign he
fought at Monmouth and Stony Point.

During the ordeal of Valley Forge General Washington is said once to
have inquired, “Where is Jefferson?” Jefferson had, of course, been
serving his country in a different way as a member of the Continental
Congress. In retrospect it is obvious that he served it better as
author of the Declaration of Independence than he might have as a
mediocre soldier. Allowances for Jefferson’s military ineptitude are
easy to make now in the light of his other great accomplishments; they
were not so easily made by those of his contemporaries who had to do
the fighting.

Whatever prejudices the Revolution may have sparked between the two
cousins were fanned into flame by the subsequent events which shaped
their careers. Jefferson went to France as American Minister where his
theory of the liberty and equality of men pronounced in the Declaration
found startling application in the revolution taking place there. Very
naturally Jefferson’s sympathy was with the revolutionists.

Meanwhile at home the masses of the people were reveling in their
new-found freedom, ignoring their responsibilities as citizens,
disregarding property rights, refusing to meet their debts, and showing
so little willingness to join in united action that many thoughtful men
feared for the survival of the new nation.

Among the latter was John Marshall. By now he was married to Mary
Ambler, daughter of Jacquelin Ambler, state treasurer, who had moved
with the capital when in 1779 Governor Jefferson transferred it from
Williamsburg to Richmond. The elder Ambler died some years before
1807 but the fashionable quarter of Shockoe Hill was dominated by his
children and relatives. The Marshalls occupied a charming brick house
which John Marshall built for his wife in 1788. He enjoyed a lucrative
law practice, his clients being for the most part the well-to-do
merchants and members of the creditor class. Marshall’s interests
and his sympathies turned in their direction. He himself came to the
conclusion that the country’s only salvation rested in a strong central
government. He shared this opinion with Washington and Alexander
Hamilton and the other conservatives who sought to replace the loose
and ineffective confederation with a compact and articulate union.
These men and others with kindred ideas evolved as Federalists.

Jefferson returned home from France to join Washington’s Cabinet as
Secretary of State. It soon became apparent that an ideological gulf
separated him from his colleagues. There had been political factions
before but now for the first time the two divergent attitudes toward
government became so clear-cut that two political parties were the
inevitable outcome. Jefferson assumed the leadership of the party of
revolt against the Federalist domination that had developed during
Washington’s administration and continued under that of John Adams. The
issue reached a climax with the victory of the Jeffersonian Republicans
in the presidential election of 1800 and Jefferson’s elevation to the
presidency.

Defeat threw the Federalists into a panic. Already the civilized
world was shaken to its depths by the events in France where the
original respectable movement to suppress tyranny and substitute for
it democratic institutions had degenerated into a reign of terror,
culminating in the execution of the king and queen. And now the
government of the United States, insecure at best, was about to be
placed in the hands of a man who approved the French Revolution and in
other ways had revealed his indifference to established institutions.
As the Federalists saw it, in a few weeks the House of Representatives
would be “Jacobin” while in a few years the Senate too would be in the
hands of the radicals.

From the Federalist point of view one hope remained. Thus far not a
single Republican tainted the national judiciary. In his message to
the expiring Congress on December 3, 1800, President Adams urged its
expansion. The message, incidentally, though bearing the signature of
the President had been written by Secretary of State Marshall. The
Federalist Congress, following the advice of the President, passed
the bill which increased the number of district judges and created
an entirely new system of circuit courts with three judges to each
circuit. The Republicans, perhaps because they thought the Federalists
would not have time to make use of the measure before leaving office,
put up only a mild opposition. They reckoned without the fierce
determination of the rival party to seize this last opportunity to curb
the Republican President and Congress.

Meanwhile Marshall had been named Chief Justice, and until the
Federalists went out of power he was to have the distinction of holding
at one and the same time the offices of Chief Justice and Secretary
of State. So it came about that far into the night on the eve of
Jefferson’s inauguration President Adams nominated from his own party
judges and other court officers created under the new law, the judges
to hold their seats for life. As fast as he nominated them the Senate
confirmed them. Then John Marshall, in his capacity as Secretary of
State, signed and sealed the commissions of the Federalists who were to
form the officers and rank and file of the judiciary army which he in
his capacity as Chief Justice was to lead!

Marshall’s law practice and his political prejudices might throw him
with the wealthy elements of Richmond society, but neither these nor
his growing importance in the world relieved him of the common touch.
His simplicity of manner, his carelessness about dress that bordered on
slovenliness, his humor and good fellowship appealed to all classes.
It was the custom in those days for the man of the household to do the
marketing. Mr. Marshall was a familiar figure in the early morning at
the market at 17th and Main streets where he bartered with the country
folk who brought in their fresh vegetables, meats, and other supplies.
His market basket filled, he would, like other gentlemen, stop in at
the booth of Joseph Darmstadt, the Hessian, who kept boiling hot
coffee on the stove to which customers were free to help themselves,
and there gossip over the affairs of the day. Darmstadt had valuable
connections with the Pennsylvania Dutch farmers who had drifted into
the Valley of Virginia and brought choice provisions to market, making
the long trip in Conestoga wagons. Or Mr. Marshall might be seen on
horseback, a bag of clover resting on the pommel of his saddle, setting
out for a farm he owned on the outskirts of the town.

Many of his political opponents--among them Patrick Henry and George
Mason--held him in deep affection. The sad exception was Jefferson.
With all his democratic principles, Jefferson was not a good mixer.
He had an innate reserve that made ordinary men self-conscious in
his company. When reports reached him that John Marshall was the
most popular man in Richmond, he could not contain himself. Was not
Marshall, by thus cultivating the good will of the masses, poaching
on territory Jefferson regarded as peculiarly his own? In the autumn
of 1795 he wrote to his friend Madison: “His lax lounging manners
have made him popular with the bulk of the people in Richmond; and
a profound hypocrisy with many thinking men of our own country. But
having come forth in the plenitude of his English principles the latter
will see to it that it is high time to make him known.” Anger did not
help Jefferson’s clarity of expression but his meaning is obvious.
Marshall, as Jefferson saw him, was a hypocrite.

Yet in spite of his dislike for Marshall, Jefferson was careful to
observe the amenities. When Marshall returned from a mission to France
in 1797, unsuccessful as the mission had been, he was given an ovation
on his arrival in Philadelphia, then the seat of government, and a
public dinner was arranged in his honor. Jefferson was in Philadelphia
at the time and promptly called on Marshall. Not finding him at home
he left a note expressing disappointment at not seeing him and regret
that a previous engagement would prevent his attending the dinner.
Marshall, not to be outdone in courtesy, sat down next day and penned a
reply stating that “J. Marshall begs leave to accompany his respectful
compliments to Mr. Jefferson with assurance of the regret he feels at
being absent when Mr. Jefferson did him the honor to call on him. J.
Marshall is extremely sensible of the obliging expression contained in
the polite billet of yesterday.”

These sentiments were hardly in keeping with “J. Marshall’s” true
feelings. For once he was not exercising that candor which his friends
considered his strongest attribute. For if Jefferson distrusted
Marshall, that distrust was in no measure greater than Marshall’s
distrust of Jefferson. When in the presidential election of 1800
Jefferson and Burr received an equal number of electoral votes and
the election was thrown into the House of Representatives, Hamilton,
displaying his usual animosity toward Burr, appealed to Marshall,
then a member of the House from Virginia, to support Jefferson. To
Hamilton’s appeal Marshall replied on New Year’s Day, 1801: “To Mr.
Jefferson whose political character is better known to me than that of
Mr. Burr, I have felt insuperable objections. His foreign prejudices
seem to me totally to unfit him for the chief magistracy of the nation
which cannot indulge those prejudices without sustaining deep and
permanent injury. Your representation of Mr. Burr, with whom I am
totally unacquainted, shows that from him still greater danger than
even from Mr. Jefferson may be apprehended. But I can take no part in
the business. I cannot bring myself to aid Mr. Jefferson.”

Here then was Jefferson, afraid that Marshall and his followers would
turn the nation’s government into an hereditary monarchy; and Marshall
equally afraid that Jefferson and his party, unless restrained,
would soon reduce the nation to anarchy. To such absurd extremes can
political partisanship drive otherwise highly intelligent men.

In spite of his anxieties and misgivings, Marshall, in his capacity
as Chief Justice, performed his official duty in administering the
oath of office to President Jefferson. How painful that duty must have
been is revealed by a letter he wrote on the same day to his friend
Charles Cotesworth Pinckney, of South Carolina: “The Democrats are
divided into speculative theorists and absolute terrorists. With the
latter I am disposed to class Mr. Jefferson. If he ranges himself with
them it is not difficult to foresee that much difficulty is in store
for the country--if he does not, they will soon be his enemies and
calumniators.” Strong words for the Chief Justice to use against the
President of the United States so soon after the Chief Justice had
administered the oath to the President.

During the first nine months of his administration Jefferson had
sufficient evidence of the animosity of the Federal bench, largely
directed by Marshall, to write to a friend: “The Federalists have
retired into the judiciary as a stronghold ... and from that battery
all the works of republicanism are to be broken down and erased.”

The Republicans were not slow in taking up the Federalist challenge.
Their first major offensive was the impeachment of Justice Chase.
The blustering, choleric Chase, with his violent partisan comments
from the bench, had provided just cause for complaint, Heaven knows.
Yet his trial by the Senate and his exoneration from the charges
leveled at him by the House indicated that impeachment was a dull
and unreliable weapon. The verdict left Jefferson more than ever
convinced that a grave error had been committed in the Constitution
by granting to the judiciary authority equal to that of the executive
and legislative branches. Marshall’s epochal decision in the case of
Marbury versus Madison, confirming the Supreme Court’s right to pass on
the constitutionality of laws enacted by Congress, strengthened that
belief. Nowhere was the presumption of the judiciary better exemplified
than in the person and actions of John Marshall. Jefferson’s unerring
political instinct told him that the quickest and surest way to cut
the judiciary down to size was to get rid of Marshall, either by
impeachment or by amending the Constitution to make Federal judges
removable from office at the will of the President and Congress.

But a case must first be made against Marshall. The Burr trial
presented a perfect opportunity. Of this the President and the Chief
Justice were both well aware, and the party leaders no less than the
President and the Chief Justice. So it was that, at Richmond in the
spring of 1807, Aaron Burr did not stand at the bar alone. The Chief
Justice also was on trial.

President Jefferson had taken his time in acting against the alleged
conspirators. He had been waiting for tangible evidence that would
stand up in a court of law. Once he was convinced that he had it he
moved with dispatch and determination to find Burr guilty. Otherwise,
after the unequivocal charge of “guilt beyond question” proclaimed
to the nation in his special message to Congress, he and his
administration would be made to look ridiculous. If the Chief Justice
cooperated to this end, all well and good. If on the contrary, as
Jefferson foresaw, the Chief Justice raised obstructions in favor of
the prisoner, he would do well to look to his own head. It was already
being rumored that the President was so set on getting rid of Marshall,
and so confident that doing so was a mere matter of time, that he had
already chosen a successor in Spencer Roane, another Virginian, but one
consecrated to the cause of Republicanism.

And here at the very outset of the trial the Chief Justice was
prejudging the charge of treason by stating that if there had been
treason there must by now be evidence of it. But no evidence had been
produced before the court. In a letter to his friend Senator Giles, the
President unbosomed himself on the unreasonableness of the decision.

“In what terms of decency can we speak of this?” he asked. “As if an
express could go to Natchez, or the mouth of the Cumberland and return
in five weeks, to do which has never taken less than twelve!... But
all the principles of law are to be perverted which would bear on the
favorite offenders who endeavor to overturn this odious republic!...
The nation will judge both the offender and the judges for themselves.
If a member of the Executive or Legislative does wrong, the day is
never far distant when the people will remove him. They will see
then and amend the error in our Constitution which makes any branch
independent of the nation.... If their protection of Burr produces this
amendment, it will do more good than condemnation would have done ...
and if his punishment can be commuted now for a useful amendment of
the Constitution, I shall rejoice in it.”

If letting Burr go scot free resulted in checkmating Marshall and
putting the judiciary in its place, Mr. Jefferson was willing to pay
even that price. As for the lack of witnesses the Government, if the
Chief Justice would only give it reasonable time, would take care
of that. From Washington, Attorney General Rodney sent out printed
circulars for wide distribution throughout the western country urging
every good citizen to step up and communicate to the Government any
information which might “contribute to the general welfare.” The
allusion was obvious. A deputy marshal and special messenger were
dispatched to Wood County, Virginia, to round up witnesses from the
vicinity of Blennerhassett Island where the overt act of treason was
alleged to have occurred.

Secretary of State Madison and the Attorney General solicited the help
of General Andrew Jackson to the same end in Tennessee. Wilkinson, in
New Orleans, sent agents in search of information through Louisiana and
Mississippi. This governmental dragnet brought results. Witnesses and
depositions combined reached an impressive total of close to 150.

Whether they would all be heard was a different matter. They still
had to pass an exacting test contrived by counsel for the defense,
sufficient to convince the Chief Justice that the admission of their
evidence was strictly within the letter of the law. Let the public
make whatever deductions it pleased about the trial at Richmond, John
Marshall did not intend to deviate one inch from what he considered to
be the sacred duties of a judge in the execution of justice.




_Chapter_ V


Colonel Burr in a letter to Theodosia complained: “The Democratic
papers teem with abuse against me and my counsel, and even against
the Chief Justice. Nothing is left undone or unsaid which can tend to
prejudice the public mind, and produce a conviction without evidence.”

His complaint must have included the Richmond _Enquirer_ whose
editor, Thomas Ritchie, was coming to be recognized as one of the
leading Republican editors of the nation. Ritchie had been born in
Tappahannock, Virginia, when that town was a thriving port on the
Rappahannock River. His father, Archibald Ritchie, was a Scottish
merchant who was charged with being a Tory during the Revolutionary
War. His mother was Mary Roane and through her he was related to the
best families in that section. Archibald Ritchie died when Thomas was
still young and the widowed mother put the lad to the study of law with
her kinsman Spencer Roane, the rising lawyer and ardent Republican who,
as has been mentioned, was believed to be Jefferson’s choice for Chief
Justice if disaster should overtake John Marshall.

But Thomas did not like the law. He switched to medicine only to
discover that he liked that even less. A spell of school teaching,
followed by one of bad health, brought him to Richmond where he opened
a small bookstore. Then, at the urging of Thomas Jefferson and his
cousin Spencer Roane, he established there a newspaper supporting the
Republican cause. The first issue of the bi-weekly _Enquirer_ appeared
on May 9, 1804. It was kept alive by party patronage in the rarefied
atmosphere of Richmond where most of the prosperous people who could
afford the luxury of a $5 per annum subscription were Federalists and
subscribed to _The Gazette_.

Ritchie was by no means a party hack. If he thought the administration
in Washington was at fault he said so. In fact, his occasional
outbursts of independence provoked from that indefatigable party
regular, William Duane of the Philadelphia _Aurora_, the charge of
being “a wolf in sheep’s cloth.”

By 1807 Ritchie was firmly established in the editor’s chair and also
in Richmond society to which his birth entitled him. In that year he
married Isabella, daughter of Dr. William Foushee, first mayor of
Richmond and one of the leading doctors. Isabella, before her career
as mother ended, was to bear him twelve children, threatening the
supremacy of Eliza Wickham who had a brood of seventeen.

Emaciated, sallow, long-nosed, thin-lipped, and unsmiling, Thomas
Ritchie looked the part of a crusader. In his treatment of Burr in the
columns of _The Enquirer_ he was regular enough to have met the most
exacting specifications of Duane. It is true that a few days after
Colonel Burr’s arrival in Richmond _The Enquirer_ piously declared:
“It is difficult for us to distinguish all those cases in which we
ought to speak from all those where we should be silent. Perhaps the
editor of the _National Intelligencer_ has nearly struck the proper
line of discrimination: like him we shall abstain from all ‘impassioned
representations’--and like him--we shall ‘unhesitatingly give all new
facts as they offer themselves’ without any regard to the party whom
they favor.”

Contrary to this impressive declaration of impartiality _The Enquirer_
had not hitherto shown itself altogether free from bias. On March 13,
for example, it had reprinted from the _Intelligencer_, that other
vehement mouthpiece of the administration which was published in
Washington, the statement: “That Aaron Burr has formed a treasonable
plan leveled at the destruction of every ingredient of our felicity
cannot be disputed.”

On March 24, two days before the arrival of the Colonel in Richmond,
_The Enquirer_ again quoted the _Intelligencer_: “Let us not hereafter
hear it said that a Republican government is deficient in vigilance....
That it [the conspiracy] was deliberately formed we have reason to
believe from the character of its author, and from the deposition of
General Eaton, which shows that his mind had long dwelt upon it and had
contemplated it in its various aspects.”

Nor did _The Enquirer_ let its impartiality go to the point of
withholding from its columns a dispatch from Baltimore quoting an
extract from a letter from a “gentleman of unquestionable character,”
dated “New Orleans, February 17” and declaring: “I must acknowledge
that Burr is the most consummate scoundrel and artful liar that I ever
had an acquaintance with.” _The Enquirer_ followed this with a squib
from the Philadelphia _Aurora_, which, under the heading “An Outlaw
Emperor,” said in part: “The Federalists have now an opportunity of
exhibiting new evidence of their sympathy and attachment to traitors.”

On the other hand the Federalist press could not boast that its hands
were altogether clean. As the trial got under way, _The Gazette_,
speaking for the conservative element, presented in its columns
an extract from a letter allegedly received from Caroline County,
between Richmond and Washington--no doubt penned by a gentleman of
as “unquestionable character” as _The Enquirer_’s gentleman from New
Orleans--whose subtle aim was to discredit the Government’s witnesses.
It stated that a man on his way to Richmond as a witness for Mr.
Jefferson against Colonel Burr had been detected in an attempt to
start an insurrection among the Negro slaves in that county. Since the
Virginia countryside was still in a state of alarm over an abortive
uprising led by a slave named General Israel several years before, no
more serious charge against a witness could have been made.

That, warned _The Gazette_, “ought to make the court and jury
extremely cautious in giving credence to witnesses on both sides until
characters are examined. Such a man would not scruple to swear away a
man’s life for a few dollars.”

In announcing his policy of impartiality Editor Ritchie had reserved
to himself the right “unhesitatingly to give all the new facts as they
offer themselves.” While Colonel Burr was free on bail an opportunity
presented itself such as would delight the heart of any editor.

Richmonders in those days lived well. The farms outside the city
provided a varied supply of meats, poultry, vegetables and fruits in
season. The town was sufficiently close to salt water to be supplied
with oysters and other seafood in spite of primitive methods of
refrigeration. Mrs. David Randolph, who conducted a fashionable
boardinghouse and was famous as cook and provider, was credited
with having devised a cold box that served as a model for the first
refrigerator in this country. Ships from abroad that dropped anchor
at City Point, below the town, brought in consignments of the finest
wines that, along with the rest of their cargo, were poled on flatboats
upstream to the city market. In the spring of the year the James was
alive with shad which came up to fresh water to spawn. For a naturally
hospitable people the temptation to entertain was overwhelming.

A popular custom among the members of the legal profession was “lawyer
dinners” at which the lights of bench and bar sat down together to
partake of good food and drink and to engage in sparkling conversation.
In this form of entertainment John Wickham excelled. He was among the
élite who dwelt on Shockoe Hill and no household there enjoyed a higher
reputation for serving the best of food. None boasted more capable
servants than Bob, the butler, and Bob’s wife, the cook, who, under
the guidance of Eliza Wickham, could prepare the most complicated
dishes. No one, except for the most impelling reason, would decline an
invitation to attend one of the Wickham dinners.

During the more than seven weeks between Colonel Burr’s commitment and
the convening of the court on May 22, time was hanging heavy on the
hands of the principals. It was not surprising that Mr. Wickham should
have seized the opportunity to give a lawyer dinner and to introduce
his distinguished client to this delightful local custom.

No one enjoyed a lawyer dinner more than the Chief Justice, whose wit
and good humor made him a welcome guest. His house was within a stone’s
throw of Mr. Wickham’s. He and the Chief Justice were good friends as
well as neighbors and the Chief Justice had often been a guest of Mr.
Wickham. What then was more natural than that Mr. Wickham should extend
an invitation to Judge Marshall? Judge Marshall accepted the invitation
and attended the dinner.

What none of them seems to have grasped was the obvious impropriety
of the judge who was to preside at the trial appearing as a guest at
a dinner given by the leading lawyer for the defense at which the
defendant also was a guest!

The significance of the incident, however, was not lost on Editor
Ritchie. The story of the dinner was soon public property. There
appears to have been no attempt to conceal it. So for the issue of _The
Enquirer_ of Friday morning, April 10, Mr. Ritchie did not have to
rack his brains to find an idea suitable for his acid pen. This issue
contained an article signed “A Stranger from the Country.” It did not
require a gift of clairvoyance to perceive that the “Stranger” was none
other than Mr. Ritchie himself.

Said the Stranger: “In the _Argus_ of the 7th it is stated, and the
fact is now too notorious to be doubted, that the Chief Justice has
dined with Aaron Burr at Mr. Wickham’s, since he himself solemnly
decided that there was probable cause to believe Burr guilty of a high
misdemeanor against his country.”

The editor first directed his attack at Mr. Wickham. He alluded to the
old charge of Mr. Wickham having been a Tory in the Revolutionary War,
indifferent to the fact that the same charge had been made against
his own father. The people of Virginia, observed Mr. Ritchie, had
generously forgiven that error of his youth. But Mr. Wickham “should
modestly have refrained from recalling it to our recollection by
entertaining a suspected traitor to the Union as his guest, a report so
defamatory to his own fame.”

Having thus disposed of Mr. Wickham, the editor dipped his quill in
acid and set to work on Judge Marshall. “I have never,” he confessed,
“had any the least confidence in the political principles of the Chief
Justice. I have never discovered in his public (for I am ignorant of
his private) character, any of that noble candor which his friends
have made the theme of such extravagant eulogium. I cannot discern
in him, for my soul, those splendid and even Godlike talents, which
many of all parties ascribe to him, his book certainly displays none
such.” The allusion was to Judge Marshall’s recently published _Life of
Washington_.

The Stranger continued: “But I have always been informed, and until now
have believed, that he was a man of excellent judgment, most consummate
prudence, and of a deportment highly decorous and dignified. I took his
merits upon trust and bountifully gave him credit for good qualities
I find he does not possess.” Mr. Ritchie now shook an accusing finger
at Judge Marshall. “Let me inform the conscience of the Chief Justice
that the public do not view his dining with Burr as a circumstance as
trivial as he himself may incline to consider it.... We regard such
conduct as a willful prostration of the dignity of his own character,
and a wanton insult he might have spared his country.”

The writer then asked several questions that were on the tongues of
many Richmonders and which for years after the event were to provide
a subject for popular speculation. “I have searched in vain in my own
mind for some apology for conduct so grossly indecent.... Was the Chief
Justice ignorant that Burr was to be of the party to which Wickham
invited him? If so, what are we to think of Mr. Wickham’s delicacy
toward his friend? If so, why did not the judge leave the house as soon
as he discovered the indignity imposed upon him?”

Then came the peroration: “Has the Chief Justice forgotten or
neglected the maxim which is on the mouth of every tyro of the
law--that _the administrator of justice should not only be pure but
unsuspected_?”

The editor was not yet through with the Chief Justice. The incident
continued to be “news” around the city, for in the issue of _The
Enquirer_ of Tuesday, April 28, Ritchie returned to the subject. This
time his comments were contained in a column headed “Extract from a
letter written by a resident of Richmond Hill to his friend in the
country.” The Resident said he had been informed that Judge Marshall
had been apprised of the invitation to Colonel Burr. But, commented the
Resident, that could not have deprived him of his faculty of locomotion
“unless he had been touched by the transforming wand of Circe.”
Richmond was full of witty classicists. The reference to Circe’s wand,
which turned men into swine, and its application to the magical effect
of Mr. Wickham’s dinner on the Chief Justice could not have been lost
on them.

“But,” continued the Resident of Richmond Hill, “perhaps the
imagination of the judge was stronger than his appetite, and he had not
fortitude enough to tear himself away from the prospect before him. In
this the judge must pardon me if I am reminded of one of Goldsmith’s
dishes of tongue with a small garnish of brains. Many judges have been
condemned for the errors of the heart and the head, but I hope, dear
F., that the list is not enlarged by errors of the appetite.”

At that point Editor Ritchie brought his torment to a close. As for the
Chief Justice, he no doubt thought much, but he said not a word.

Professor George Tucker, Jefferson’s biographer, was present at the
dinner and an eyewitness to what went on there. He made a report on
what he saw, and what he did not see he said he got “from an authentic
source.” According to Professor Tucker’s version, a few days after
Colonel Burr had been released on bail Mr. Wickham invited him to dine
with a large party, among whom was the Chief Justice, a neighbor and
personal friend. But, on the morning of the dinner, realizing that
there might be some impropriety in the situation, Mr. Wickham informed
Judge Marshall that Colonel Burr would be among the guests.

Judge Marshall, however, being a man of delicate feeling, was afraid
that if he were to withdraw at that late hour, after having accepted
the invitation, he might be regarded as being unduly fastidious, and
that such action might be interpreted as a censure on his friend. So
he went to the dinner. “But,” testified Professor Tucker, “he had no
communication whatever with Burr, sat at the opposite end of the table,
and withdrew at an early hour after dinner.”

One version of the incident had it that the Chief Justice asked the
opinion of his beloved wife Molly and that she advised against his
going. But it was not like the judge to act contrary to her judgment.
At any rate, concludes Professor Tucker, no one was more sensible
of the indecorum than the Chief Justice, “but it was not an act of
deliberation, but merely inconsiderate.”

As to the effect of the incident on the subject of his biography
Professor Tucker remarks: “... it no doubt contributed to increase the
alarm and apprehension of Mr. Jefferson, always sufficiently disposed
to judge the Federal party with the same harshness that they judged
him.” And well he might. Contemporary comments make it clear that then,
as today, a judge dining in company with the man he is about to try and
at the home of the chief lawyer for the defense is, to say the least,
an inexcusable act of impropriety. As Editor Ritchie declared at the
time, it is not the sort of thing that would be expected of a man of
“excellent judgment, most consummate prudence, and of a deportment
highly decorous and dignified.”




_Chapter_ VI


On May 22 the Circuit Court of Appeals for the District of Virginia,
before which Aaron Burr was to face the charges of treason and high
misdemeanor, convened at 12:30 o’clock. But first a grand jury would
have to be picked and pass on the charges. Far ahead of the hour a
throng moved on the hall of the House of Delegates where the session
was to be held. It was a throng composed solely of men, for a court
of law in Virginia in those days was no place for a lady. Save in
Virginia’s great debate on the ratification of the Constitution in the
convention of 1788 Richmond had never before seen such a colorful and
distinguished assemblage.

For days strangers had been descending on the city from all sides
until the taverns and inns were filled to capacity. The hardier stock
from the western outposts of the Commonwealth did not even try to find
accommodations: they brought tents with them and camped on the low
ground beside the river. Some came out of curiosity, others were there
on court business. The administration’s offensive to counter the Chief
Justice’s demand for witnesses to Colonel Burr’s alleged criminalities,
directed by the Federal officials in the western country and spurred on
by the tireless efforts of the patriotic Wilkinson, had borne results.
It was estimated that persons concerned in the trial as counsel,
witnesses, and in other official capacities reached a grand total of
200.

So large was the crowd in the hall that lawyers of long service at
the local bar were forced out of their rightful places by officious
interlopers. This was no commonplace gathering. Here and there could
be distinguished men who had already made their names in history and
others who later were to become famous.

Anybody who was familiar with the Navy would have recognized two
veteran sailors, their faces bronzed by wind and sun and salt spray,
who had served their country well. They were Stephen Decatur the elder
and Thomas Truxtun, commodores both. Decatur boasted commendable
service as a privateersman in the Revolutionary War, but he was to
be overshadowed by his son of the same name. Truxtun, too, began his
naval career as a privateer in the struggle for independence. Later
he supervised the building of the frigate _Constellation_ and, on
her completion, took command and mustered her first crew. His latest
exploits were the capture of the frigate _L’Insurgente_ and the defeat
in battle of the frigate _La Vengeance_ in the quasi-war with France.

Present, too, was William B. Giles, loyal party man and President
Jefferson’s leader in the Senate. He was there, oddly enough, under a
summons of the United States Marshal for the Virginia District to be a
member of the panel from which the Grand Jury was to be chosen. Burr
thought it unreasonable, considering Giles’s politics. Soon he was
going to say so.

There, too, was “General” Eaton, author of the affidavit, now present
in person. The “Hero of Derne” wore a broad scarlet sash around his
middle which provided an exotic touch to his costume and a silent
rebuke to those who questioned his title and his fame. Eaton was a
great talker and, so it was said, when not attending court spent the
better part of his time at the tavern bars.

One might have marked a handsome young man with blue-gray eyes and a
head of abundant chestnut hair. He was a stranger to Richmond and his
accent betrayed a northern background. His name then meant nothing to
anybody save the little group of Burr’s friends who had come down from
New York to lend the prisoner moral support during the trial. This
was Washington Irving, lately returned from a European tour. He had
read law and been admitted to the New York bar; there was a report to
the effect that he had actually had a client. But even at this early
stage in his career he was more active with his pen. He and his older
brother William, and William’s brother-in-law James K. Paulding, had
just launched a sprightly magazine satirizing New York society under
the title of _Salmagundi_. Brother William and Paulding were having to
carry the burden while Washington was away.

William was a Republican, Washington’s sympathies were Federalist.
Fastidious by nature, Washington rose superior to the unpretentious
merchant family into which he had been born. The Irvings, on the other
hand, were immensely proud of their precocious son and all too glad
to give him a helping hand in his rise in the world. They liberally
financed the trip to Europe and it had been a great success. There
young Irving made the grand tour and lived in style in the Paris of
Napoleon’s empire. He had himself fitted out by the best tailor. He sat
for the rising young American painter, John Vanderlyn, then resident in
Paris. The work seems to have been undertaken out of the sheer delight
of the artist in having such a pleasing model.

On his travels Irving had made the acquaintance of two Virginia
gentlemen of the bluest blood, a Mercer of Fredericksburg and Joseph
Cabell, the Governor’s brother. He looked forward to renewing the
acquaintance on his trip south, particularly that with Cabell who had
just married Mary Walker Carter. Irving was told she was one of the
wealthiest young women in the state. The young New Yorker was there on
a literary retainer. It was said that some of Burr’s friends thought he
might help the cause through his writings. But if any of his accounts
of the trial ever got into the newspapers the record of them has been
lost.

A familiar figure to most of the Virginians in the hall was a tall,
gaunt man with absurdly long legs for so short a body who spoke in
a high falsetto voice. His leather breeches and his riding boots
identified him as a country squire. In actual fact he had ridden up
to Richmond from his estate, Bizarre, some sixty miles to the south.
This was the brilliant and eccentric John Randolph, master as well of
Roanoke. A horse, he once said, was to him what a ship was to a sailor.
A member of Congress, Randolph had acted none too astutely as one of
the Managers, or prosecutors, in the impeachment trial of Judge Chase.
He, too, had received a summons from the Marshal to appear for jury
duty. Like the Chief Justice and Edmund Randolph, he was a part of the
lengthened shadow of the prolific Turkey Island pair, William and Mary
Isham Randolph.

Standing out conspicuously in that dense throng was still another
youth. His height alone would have distinguished him, for he was 6 feet
4½ inches tall. Not content with looking over the heads of the crowd he
climbed up on the great lock of the entrance door of the hall in order
to get an unobscured view of the proceedings. From his perch he had a
good look at the accused. Colonel Burr saw him, too. The young man was
Winfield Scott. Years later, when he had become one of the nation’s
great soldiers, the two met again and Burr reminded the general of the
encounter. Contemporaries described Scott as the most magnificent youth
in all Virginia.

At the time of the trial young Scott was reading law in the office of
David Robertson, of Petersburg. Not only was Robertson well grounded in
Blackstone and Coke and the intricacies of the Virginia statutes, he
also was an accomplished linguist with a knowledge of five languages.
What is more, he had trained himself to take notes in shorthand, and
he was present at the trial to record the proceedings. Thanks to David
Robertson, posterity has in two fat volumes a reliable verbatim account
of much that was said at the trial. It was at Robertson’s suggestion
that young Scott came to Richmond to get a first-hand impression of the
leaders in what he then intended to be his chosen profession.

Better known to the Richmonders of the day than he was to be known
to posterity was a queer Scotsman named James Ogilvie who was to
be a regular attendant at the sessions. According to local gossip
he was heir to an earldom and had passed up the title to become an
impoverished schoolteacher in Virginia. Elocution was his forte and he
not only came to the trial himself but brought his pupils along so that
they could have a practical demonstration of the art of oratory from
the greatest practitioners of the day. Ogilvie was in bad repute with
the local clergy. Either an atheist or an agnostic, he traveled about
delivering “infidel lectures.” He was blamed for shaking the religious
faith of a number of Virginia’s young men. But the Devil got him in
the end. As an elocutionist he failed to live up to his own exacting
standards, grew melancholy, and committed suicide. Or so it was said.
A less romantic account of his death attributed it to an overdose of
laudanum, a drug to which he had become addicted.

On this day there were new faces both among the counsel for the defense
and for the prosecution. Now associated with Edmund Randolph and
John Wickham was Benjamin Botts, the youngest lawyer on either side,
bubbling over with the wit and sprightliness of youth. Already he had
made his mark at the Virginia bar.

When Caesar Rodney peremptorily retired from the case President
Jefferson at once recognized that the plodding District Attorney Hay
needed reinforcement. William Wirt seemed the ideal choice; the summons
went out from the White House and Wirt accepted. Wirt’s Swiss and
German background, which he inherited respectively from his father
and his mother, showed itself in his curly blond hair, his blue eyes,
and his fair complexion. He was built in heroic proportions, over six
feet tall, broad-shouldered, with thick eyebrows, a wide forehead,
a prominent nose, and ample chin. With his agreeable countenance he
combined rare good humor and graciousness. A young woman who came
under his spell remarked that Wickham was handsome but that he seemed
insignificant in contrast to the manly beauty of Wirt. The same young
woman observed that while Wickham went out of his way to please he
could not suppress an air of condescension. Wirt, on the other hand,
contrived to give the flattering impression, not that he was trying to
please, but that he himself was being entertained.

Like Hay, Wirt was self-made. His father, too, was an innkeeper in
the 1770’s, at Bladensburg, Maryland, a few miles north of the future
site of the national capitol. At an early age William was left an
orphan, but from the start he had the gift of making friends. Among
other accomplishments he sang and played the violin. His schooling
completed he read law, moved to Virginia, and was admitted to practice
in Culpeper County. There he met and married a daughter of Dr. George
Wilmer, a man of prominence in the community and a friend of Thomas
Jefferson. Through his father-in-law Wirt was introduced to Jefferson
and also to Madison and Monroe and was an ardent follower of what was
known in the political world as “the Virginia dynasty.”

These early associations, combined with his own superior talents,
played an important part in the fashioning of Wirt’s career. Five years
after their marriage Wirt’s young wife died and the rising young lawyer
moved to Richmond. For a time he held the office of clerk of the House
of Delegates, then served briefly as Chancellor of Virginia. He was a
frequent visitor at Gray House, the home of Colonel Robert Gamble, a
prosperous merchant. This imposing dwelling, on a hill overlooking the
James River and commanding an extensive view of the river valley and
the rolling country of Chesterfield County on the other side, had been
built for Colonel Gamble by Benjamin Latrobe, an architect recently
arrived in this country from England. In 1802 Wirt took as his second
wife Colonel Gamble’s daughter Elizabeth, and through that connection
became the brother-in-law of Governor William H. Cabell who married
Elizabeth’s older sister Agnes.

Wirt was well known to the Richmond bar where he had appeared in a
number of important cases. A notable one was in defense of the nephew
of Chancellor Wythe, law teacher of Jefferson and Marshall. The nephew
was charged with the murder of his uncle by putting arsenic in his
coffee. Wirt was reluctant to take the case and did so only under a
sense of duty. He handled it so successfully that the nephew was
exonerated. If that constituted a gross miscarriage of justice, as
many then believed, the blame could not be put on Wirt. He was now
to have an equally spectacular chance to show whether he would be as
good a prosecutor as he had been a defender. At the time of the trial
the Wirts were sharing the Gray House with the Gambles senior and the
Cabells. It was a gay and accomplished household.

Present also with the prosecution was Alexander MacRae, who held the
honorable office of Lieutenant-Governor of Virginia. One of the seven
sons of a Scotch parson who was an ardent Tory in the Revolution,
MacRae showed his independence by embracing the American cause and
ending as an equally ardent Republican. He had a reputation at the
local bar for a sharp tongue and a sour disposition. One observer
remarked that where Wirt used a rapier MacRae’s favorite weapon was a
meat axe. In contrast to Wirt’s bonhomie MacRae gave the impression of
being completely indifferent to popularity. MacRae was among the elect
in residence on Shockoe Hill. His house was within a stone’s throw of
those of the Chief Justice and Mr. Wickham. Neighborly though they may
have been, neighborliness did not extend to Mr. MacRae being included
in Mr. Wickham’s notorious dinner.

So dense was the crowd in the courtroom that it was with difficulty
that Chief Justice Marshall, clad in his robes of office, made his way
to the bench. He was accompanied by Judge Cyrus Griffin, of the Federal
district court, who sat with the Chief Justice throughout the trial.

Cyrus Griffin was no ordinary man. He was fortunate in being born the
son of Col. Leroy Griffin, of Lancaster County, Virginia, and his wife,
Mary Anne Bertrand. His parents sent him to be educated in England, a
privilege that was reserved for the sons of the well-to-do. He studied
law in the Temple, then met and married Lady Christina, daughter of
John Stuart, sixth Earl of Traquair, in the Scottish peerage. On his
return to this country, in spite of his years in England and his
Scottish wife, he adhered to the American cause, was elected to the
Continental Congress, and for a time served as its president. In
politics he was a Federalist.

Now he sat beside Chief Justice Marshall. Once in the course of the
long trial the Chief Justice inquired of Judge Griffin about past
procedure, in a minor incident leading up to the trial, on which his
recollection was vague. From Judge Griffin he received an answer. If
the Chief Justice ever deferred to him again, if the Chief Justice so
much as asked his colleague how he was bearing up under the heat, the
record is silent on the matter.

At the time of the trial Judge Griffin had been on the Federal bench
for 18 years. In the course of that long service there were many times
when he had had to render decisions. In rendering them he must perforce
have had to think. Cyrus Griffin was not a wax effigy. There must have
been a heart beating under his judicial robes. He must have taken pride
in his office. But if the Chief Justice, other than on the occasion
mentioned, reflected that it would be considerate at least to make a
pretense of consulting his fellow jurist, the record does not show it.

All we are told is that Judge Griffin sat on the bench with the Chief
Justice. So he goes down in history as a footnote. But he should be a
footnote in heavy black type. For in his humble position in that famous
trial he was the perfect symbol of all the poor mortals whose fate it
is to be just important enough to occupy a place on the stage, but to
be given no speaking lines and to serve merely as background for the
star performers.

But the chief object of attention was the prisoner at the bar. To many
there Burr was already a well-known figure; others were seeing him for
the first time. They craned their necks out of curiosity to learn what
manner of man this was who had set to work to carve an empire in the
Southwest and in so doing disrupt the nation. If Burr had been denied
the opportunity to arrange the setting dramatically, as he had done
for the impeachment proceedings against Justice Chase, he still was at
liberty to give attention to his personal appearance. He had selected
a suit of fine black silk and he wore his hair powdered, a picture of
scrupulous neatness. His manner was calm, collected, and dignified,
his mind apparently concentrated on the proceedings and indifferent to
the stares of the curious. To Winfield Scott, who was watching him from
the far end of the hall, he looked “as composed, as immovable as one of
Canova’s living marbles.”

Impressive too was the Chief Justice. His admirers had accustomed
themselves to the carelessness of his dress. They centered their
attention on his majestic head, without a single gray hair, set on
broad shoulders, his ruddy weather-beaten face, his dark luminous eyes
approached in beauty only by the hazel eyes of Burr. It was frequently
remarked during the trial that never before had two such pairs of eyes
beheld each other.

Marshall’s friends spoke of him as the soul of dignity and honor,
prudent, courageous, immovably resolute to do the right, “the
Washington of the Bench.” Not so the champions of Jefferson. They saw
him on the contrary as “suave, almost unctuous, wearing the mask of
impartial benevolence” which was “to slip conspicuously more than once
in the course of the trial ... revealing a partisan as malevolent as
any that Jefferson ever faced.”

When the courtroom had quieted down proceedings were opened by the
clerk calling the names of those who had been summoned for the Grand
Jury. Burr was on his feet at once. He lost no time in making it clear
that he was going to act as his own counsel. Learned in the law and
thoroughly at home with court procedure he was not going to hesitate to
interpose when he saw a chance to make a point in his favor. When he
spoke his remarks were crisp and to the point.

Selection of the jury was now the object of his attention. Only a week
before Burr had written to Theodosia: “The grand jury is composed of
20 Democrats and 4 Federalists. Among the former is W. C. Nicholas, my
vindictive and avowed personal enemy--the most so that could be found
in this state!” He referred to Colonel Wilson Cary Nicholas, a former
member of Congress. By “the grand jury” Burr meant the panel of 24
men from whom the jury of 16 would be chosen. His immediate aim was
to use every legal means to overcome the disadvantage of having the
charges against him heard by a group composed chiefly of Jeffersonians
and among them men he knew harbored a personal animosity toward him.
He therefore begged to point out to the court that under the law the
Marshal was required to summon twenty-four free-holders. But if any of
them had been stricken off the list and others substituted in their
places the act was illegal. He asked if such had been the case.

This afforded the first opportunity of the day for opposing counsel to
warm to their task, and they debated the issue for more than an hour.
At the conclusion of the arguments the Chief Justice ruled in favor
of Colonel Burr and the names of the men substituted for the original
twenty-four were removed.

Burr now was to exercise his right of challenge. The first juror to be
dealt with was Senator Giles. It was he who, a few weeks before, in
direct violation of Republican principles of the days of the Federalist
alien and sedition laws, introduced the bill to suspend the writ of
habeas corpus in the cases of Swartwout and Bollman and nursed it
through the Senate. It was no fault of his that it met with ignominious
defeat in the House.

However, in this instance he was no part of a plot to rob Burr of
justice. He was there because the Marshal had called him. No sooner had
Burr questioned his fitness to serve than Giles admitted prejudice and
volunteered to withdraw.

Nicholas, who was questioned next, proved equally tractable. He made no
attempt to conceal his dislike and suspicion of Burr. He recalled how
he had opposed him when the presidential vote was thrown into the House
of Representatives of which Nicholas was then a member. He declared
that he had no desire to serve on the Grand Jury. But word had come to
him that if he tried to withdraw an effort would be made to embarrass
him by publishing certain things against his reputation. He hesitated
therefore to retreat in the face of his enemies. Burr here interrupted
to deny that any of his followers had made any such threat. Following
this exchange Nicholas withdrew.

Joseph Eggleston, another member of the panel, did not wait to be
challenged. Veteran cavalry officer who had followed Light Horse Harry
Lee in the Revolution, former member of Congress and of the Virginia
Assembly, he confessed that, after reading Eaton’s deposition in the
newspapers, he had expressed himself with great warmth and indignation.
He therefore asked to be excused.

The situation was perfectly made for Burr’s claim that it was
impossible to get a fair trial in the light of the public prejudice
against him. He was quick to take advantage of it.

“Under different circumstances,” he said, “I might think and act
differently, but the industry which has been used through this country
to prejudice my cause, leaves me very little chance indeed of an
impartial jury.”

Pausing a dramatic moment for reflection he continued: “There is very
little chance that I can expect a better man to try my cause. His
desire to be excused, and his opinion that his mind is not entirely
free upon the case, are good reasons why he should be excused; but
the candor of this gentleman, in excepting himself, leaves me ground
to hope that he will endeavor to be impartial.” Could the Colonel, by
any chance, have been calculating that Eggleston would show him the
consideration that one gallant officer of the Revolution might expect
from another?

And now the name of John Randolph was called. Randolph appealed to the
Court, protesting and begging to be excused, pleading that he had the
impression the prisoner was guilty of the charges preferred against
him. It was ridiculous to suppose that in the face of this frank
admission of bias Randolph’s participation in the case would be given
consideration.

But there were extenuating circumstances. Randolph’s enthusiasms and
loyalties seldom lasted long. At an earlier time he had been one of
the President’s most ardent hero-worshippers. Once the leader of the
Jeffersonians in the House he had now broken with his party and was
neither fish, flesh, fowl, nor good red herring. A master of caustic
epithet he had tagged Mr. Jefferson with the name “St. Thomas of
Cantingbury.” On the other hand of late he had on occasion expressed
admiration for the Chief Justice. Now not only was this man with
admitted prejudice against the accused to be put on the jury but the
Chief Justice was to make him its foreman. And this without protest
from Colonel Burr.

No wonder the Jeffersonians interpreted this as a clever move on the
part of Judge Marshall to place in a key position a man who could be
expected to counterbalance the strongly Jeffersonian flavor of the jury.

Politics aside, if the United States Marshal for the District of
Virginia had spent a lifetime at the task of assembling a panel he
could not have brought together one more representative of the best
brains, blood, and ability in the Commonwealth. The descendant of
Jonathan Edwards, who stood at the bar, had no reason to complain that
the Grand Jury which was to pass on the charges preferred against him
was not composed of his peers in the most literal sense of the term.

John Randolph and Joseph Eggleston have been mentioned. Another juryman
was Joseph Carrington Cabell, brother of the Governor and a finely
educated man who shortly was to collaborate with Thomas Jefferson
in founding the University of Virginia. This was the Cabell whose
acquaintance young Washington Irving had made in Europe.

Equally worthy in that select company were Littleton Waller Tazewell,
James Barbour, and James Pleasants. All three were to be governors of
Virginia, Tazewell and Barbour were to represent Virginia in the U.S.
Senate, and Barbour was to enter the Cabinet of John Quincy Adams as
Secretary of War.

In less spectacular company James Mercer Garnett would have been
outstanding. His claims to distinction were membership in the Virginia
Legislature, in the U.S. House of Representatives, and as first
president of the United States Agricultural Society. For variety the
jury included one banker, John Brockenbrough, who had abandoned the
medical profession to become the treasurer of the Bank of Virginia.
Later he was to be its president. Perhaps his rarest achievement was
that he made and kept the friendship of the fickle John Randolph of
Roanoke. Interestingly enough it was a boast that in this company he
shared with Tazewell who also managed to hold Randolph’s affection.

Another member of the jury bore an unusual relationship to the foreman.
This was Robert Barraud Taylor, of Norfolk. Years before as hot-headed
youths at William and Mary College the two had a falling out which led
to a challenge followed by a duel in which Taylor was wounded. He still
carried in his side a slug fired from Randolph’s pistol. The record
does not show that their meeting on the jury revived the animosity.

Numbered among the sixteen were Edward Pegram, member of a family
prominent in Petersburg and shortly to become mayor of that busy
commercial city, and John Mercer, whose family was honorably associated
with Fredericksburg. There was Mumford Beverley in whose veins ran the
blood of the Byrds of Westover. There was John Ambler, first cousin
of the Chief Justice’s wife and a Shockoe Hill neighbor. Finally
there were three jurymen who left no conspicuous public record behind
them--Thomas Harrison, Alexander Shephard, and William Daniel. But they
all bore good names. Looking at the sixteen chosen men as they arose
from their seats and proceeded to the Grand Jury room Burr might have
flattered himself that few prisoners had ever been honored with a jury
of such quality.

However, it was not characteristic of Burr to acknowledge favors. Quite
the contrary. He was up and addressing the Court again, this time
to ask the Chief Justice to advise the jury on the admissibility of
certain evidence he assumed Hay would place before them. Hay retorted
that he trusted the Court would grant no indulgence, but treat Burr
like any other man who had committed a crime.

Here was another chance for Burr to assume a posture of injured
innocence. Rising to his feet he exclaimed: “Would to God that I did
stand on the same footing with every other man. This is the first time
I have been permitted to enjoy the rights of a citizen. How have I been
brought hither...?”

Here the Chief Justice interrupted Burr’s soliloquy to remark that such
digressions were improper. After a little more of such skirmishing
between counsel Court was adjourned while all Richmond was held in
suspense as to whether the Grand Jury would indict and, if so, what
crimes the indictment would include. Burr may not have liked the
complexion of the jury, yet he might have gone farther and fared worse.

Simultaneously with the adjournment a tall, cadaverous frontiersman was
reported to be haranguing a crowd from the steps of a grocery store
just off the Capitol Square, in the same breath damning Jefferson’s
administration and declaring that Colonel Burr was a victim of its
persecution. The name of the speaker meant little to most Richmonders,
though it was already well known in Washington and in the speaker’s
home state of Tennessee. The man was Andrew Jackson. What was he doing
in Richmond? And why had he taken it on himself to deliver this public
excoriation of Jefferson and defense of Burr?




_Chapter_ VII


On May 29, 1805, on his first visit to the West, Aaron Burr arrived in
Nashville, Tennessee. There he was heartily welcomed as was becoming a
former Vice-President of the United States, a member of the ascendant
political party in that section of the country, and one who in the best
frontier tradition had met his man on the field of honor.

Still another potent reason for the warmth of the reception was
Tennessee’s gratitude to Burr who, as a member of the Senate, had
actively supported her successful appeal for statehood.

Foremost among those greeting the statesman was Andrew Jackson,
Nashville’s first citizen, businessman, planter, sportsman, former
judge, and major general of militia. The two had met before in
Philadelphia when that city was the seat of the Federal Government and
Jackson appeared there briefly as Senator from Tennessee. The General
retained vivid recollections of a magnificent dinner he had attended
as a guest of Colonel Burr--a dinner featuring foods and wines which
reflected the Colonel’s reputation as an epicure. Jackson was only one
of many guests and Burr did much entertaining. It is not improbable
that in the intervening years Burr had forgotten the tall, lanky
frontiersman who had not at that time made his mark on the national
scene. But even if that were the case Burr was far too astute to let
Jackson know it. He saluted him as an old friend.

The bustling young town did itself proud in entertaining its
distinguished visitor. There were military reviews to the sound of
martial music, the firing of salutes, and the cheers of the crowds
along the way. Crowning the celebration was a banquet at which General
Jackson undertook to repay Burr’s hospitality in kind, and where toasts
were drunk until late in the evening.

After the public festivities were concluded Burr stayed on for five
days as a guest of Andrew and Rachel Jackson at the Hermitage. The
Jacksons had only recently moved in and the dwelling that was to become
so intimately associated with them was a mere blockhouse consisting of
a single room downstairs, two rooms upstairs, a kitchen, and a detached
guest house in the yard.

From Nashville Burr proceeded to New Orleans where his welcome was as
cordial as that extended him in Kentucky and Tennessee. In August he
was back in Nashville after a strenuous journey on horseback through
wild country that would have tested the physical vigor of any man and
satisfied the Tennesseans that here was no effete easterner but a
red-blooded individual who could keep pace with the best of them. This
was not the Burr of the drawing room but the veteran warrior of the
Quebec campaign and numerous pitched battles of the Revolution.

On this occasion Burr was a guest at the Hermitage for eight days. Of
the second visit the Colonel wrote in glowing terms to Theodosia: “For
a week I have been lounging at the house of General Jackson, once a
lawyer, after a judge, now a planter; a man of intelligence, and one of
those prompt, frank ardent souls whom I love to meet.”

What bond held the two men together? No formal record was kept of their
conversations but more than a year later, when much had happened, the
General wrote a letter to a friend in Washington, George W. Campbell,
that throws light on the two meetings.

Prevalent throughout the western country was the belief that war with
Spain was inevitable and imminent. Spain had been forced against her
will to consent to the sale of Louisiana by Napoleon to the United
States. New Orleans, though now an American possession, was flanked
by the Floridas on one side and by Mexico on the other, both still
Spanish territory. A Spanish army stood threateningly on the Sabine
River which separated Texas from Louisiana. Acquisition of Louisiana
Territory, too, brought on a renewed fever for expansion in the
western country. Underlying the spirit of unrest was the fact of an
aged dying empire faced by a young and virile country. The West was
so confident of itself and so contemptuous of the Spaniards that it
longed for action. No person there was more impatient than Andrew
Jackson who looked scornfully at the dilatory policy in Washington. In
Aaron Burr he thought he saw the dynamic leader needed to put an end to
dilly-dallying.

According to what Jackson said in his letter to Campbell, Burr told
him the expedition he was planning was primarily to settle the Wachita
lands to which he claimed a title. However, if on the way down the
Mississippi River war with Spain were to break out, as seemed probable,
his force could be diverted to march into Mexico, support the patriots
there, and effect the country’s independence from Spain. For this plan
of action Burr assured the General he had the support of the Washington
administration. It was a plan which fired the General’s imagination,
and, as Burr outlined it, bore no taint of illegality. By November Burr
was again in the East, spending part of his time in Washington and
there dining with the President at the White House.

On March 24 Burr wrote a letter to Jackson which contained several
mischievous passages. First he reported what he knew would be
unpleasant news to the General--that the Administration was against a
war with Spain, “if it can be avoided with honor, or even without.”
Equally irritating to the fiery Tennessean must have been Burr’s report
that Jefferson was trying to wring from Congress an appropriation of
$2,000,000 for the purchase of the Floridas. Why, the General might
have asked, was the nation proposing to hand out all that money for
what it could get by the use of its strong right arm?

Yet, continued Burr, in spite of the pacific attitude of the
Administration there still was reason to expect hostility. He argued
that Spain, aroused by Miranda’s activity in behalf of the independence
of her American colonies, which the United States Government was
suspected of supporting, would attack this country.

Whether Burr actually believed that or not it gave him a chance to
get in a little flattery. He observed that he had often said that a
brigade could be raised in West Tennessee capable of driving double the
number of Frenchmen off the earth. Would General Jackson care to select
officers for two regiments from colonel down? If so, and in case troops
should be called, Burr would recommend the list to the Department of
War “... and I have reason to believe that on such occasion my advice
would be listened to....” Burr had no such reason. He was vague, as
usual, but the implication was strong that he was acting with the
knowledge and consent of the Administration.

Burr closed his letter on a critical note that played up to Jackson’s
prejudice against the occupant of the White House. He had been told, he
said, that Mr. Randolph had charged the President with duplicity and
imbecility. “All these things, my dear Sir, begin to make reflecting
men to think, many good patriots to doubt, and some to despond.” Just
what did he mean? Burr was again resorting to innuendo which he handled
so skillfully.

While Burr was in the East General Jackson had been fully occupied.
In April his thoroughbred stallion Truxton won a classic race against
Joseph Erwin’s Ploughboy, earning a stake of $3,000, which the General
greatly needed, and establishing his owner as the leading turfman of
the West. This sporting event was followed by the General’s meeting
with Charles Dickinson in a duel in which Dickinson was killed. On the
way to the duelling ground the General was not too preoccupied with
the business in hand to discuss the Spanish matter with his second,
General John Overton. He doubted that the conquest of Mexico would be
as easy as Burr imagined. “Burr,” he commented, “is as far from a fool
as ever I saw, and yet he is as easily fooled as any man I ever knew.”

Jefferson’s help the General did not value highly. He was then under
the impression, which had been encouraged by Burr, that the Government
was a silent partner in the plotting against Spain. He prophesied that
the Federalists, when they learned about it, would assail the policy
tooth and nail. And, he observed, when they did so Mr. Jefferson would
“run like a cottontail rabbit.” Here was the rugged frontiersman’s
scorn for the timidity of the intellectual in the White House.

In the autumn of 1806, more than a year after his first visit, Burr
returned to Nashville. His welcome was as cordial as ever. Another
banquet and a ball were given in his honor. Burr entered the hall on
the arm of Jackson, resplendent in the uniform of a major general of
militia. The General had seen to it that all his friends were on hand
to pay their respects to the distinguished visitor. The tall, raw-boned
Jackson and the trim, diminutive Burr made a striking contrast. When
time came for the drinking of toasts, Jackson arose and offered the
always popular one: “Millions for defense; and not one cent for
tribute.” Did he have in mind the two millions Jefferson was just then
trying to get from Congress for the purchase of the Floridas?

On this visit Burr gave Jackson an order for five large boats and
provisions sufficient for the complement of men they would carry. In
payment he tendered $3,500 in Kentucky bank notes. Jackson turned over
the execution of the contract to his faithful friend and partner, John
Coffee. Meanwhile another friend of Jackson’s, one Patton Anderson, set
to work in earnest raising a company of young men to go with the Burr
expedition down the river, whatever the destination might be.

On Colonel Burr’s appearance in Nashville in late September he imparted
confidential information to Jackson which led the latter to believe
that war with Spain was about to break out. On the strength of it the
General on October 4 took it upon himself to issue a proclamation
to the Tennessee militia stating that the menacing attitude of the
Spanish forces already inside the American boundary required that the
militia be called out and made ready for instant duty. He then notified
President Jefferson of his readiness to tender his services:

“Sir: In the event of insult or aggression made on our government and
country from any quarter, I am well convinced that the public sentiment
and feelings of the citizens within this State, and particularly within
my division, are of such a nature and such a kind that I take the
liberty of tendering their services, that is, under my command; and
at one moment’s warning, after your signification that this tender is
acceptable, my orders shall be given conformably.” There could not have
been a more generous and loyal gesture.

To a man of Jackson’s impetuous temperament Jefferson’s reply was like
a dash of cold water in the face. “Always a friend of peace,” wrote the
President, “and believing it to promote eminently the happiness and
prosperity of mankind, I am ever unwilling that it should be disturbed
as long as the rights and interests of the nation can be preserved.
But whenever hostile aggressions on these require a resort to war, we
must meet our duty, and convince the world that we are just friends and
brave enemies.”

This noncommittal philosophizing was hardly agreeable to the ears
of a man whose command was already drawn up under arms and waiting
impatiently for the proper authorities to give the word “go.” It could
not have failed to increase Jackson’s distaste for Jefferson.

The friendly relations between Burr and Jackson continued as late
as November 3. Then, within a week, Jackson’s attitude underwent a
sudden reversal. The change came with the visit to the Hermitage of a
Captain Fort, a stranger to the General. Fort stayed for the night and
part of a day. By this time the country was seething with rumors of a
conspiracy, and the conversation between the master of the Hermitage
and his guest turned on that subject. Captain Fort ventured the opinion
that part of the plot was the division of the Union.

The General asked him how it would be done. Captain Fort replied that
it would be done by seizing New Orleans and the bank there, closing the
port, conquering Mexico, and uniting part of the Union to that country.
It was to be accomplished, he said, with the aid of Federal troops
under the command of General James Wilkinson. Jackson inquired if Burr
was involved. Fort replied that he did not know. Asked where he got his
information, he said it came from Col. John Swartwout of New York. At
this the General pricked up his ears, for Swartwout was well known as a
political lieutenant of Burr.

Impressed and shocked, Jackson acted with characteristic directness.
He ordered Coffee to accept no more contracts from Burr. He penned
a letter to Burr in strong terms, telling him of his suspicions and
warning him that until they were cleared from his mind he wished no
further intimacy to exist between them.

While Jackson had only suspicions of Burr he appears to have been
convinced of the guilt of Wilkinson, whom he had known in years past,
with whom he had had business dealings, and for whom he had no love.
To Gov. William C. C. Claiborne, of the New Orleans territory, he
dispatched a dramatic warning: “Indeed I fear treachery has become the
order of the day.... Put your town in a state of defense. Organize
your militia and defend your city as well against internal enemies
as external.... Be upon the alert; and keep a watchful eye upon the
General [Wilkinson] and beware of an attack as well from our own
country as Spain.” In his idle moments at the Hermitage between
horse races and duels General Jackson must have been dipping into
Shakespeare. The letter continued: “I fear there is something rotten
in the State of Denmark.... Beware the month of December. I love my
country and government, I hate the Dons; I would delight to see Mexico
reduced; but I will die in the last ditch before I yield a foot to the
Dons, or see the Union disunited. This I write for your own eyes, and
for your safety; profit by it and the Ides of March remember.”

To Jackson’s demand for an explanation Burr gave prompt attention.
According to the General he answered “with the most sacred pledges
that he had not, nor never had, any views inimical or hostile to the
United States, and whenever he was charged with the intention of
separating the Union, the idea of insanity must be ascribed to him.”

General Jackson was not the only one demanding reassurances from
Burr. When Burr was about to appear before the Kentucky Grand Jury at
Frankfort he asked Henry Clay to defend him. Clay, too, wanted to hear
from Burr’s own lips whether there was any substance to the charges
that had been preferred by Daveiss and the _Western World_ before
accepting the commission. From Burr he got this categorical denial: “I
have no design, nor have I taken any measure, to promote a dissolution
of the Union or a separation of any one or more States from the
residue.... I do not own a musket nor a bayonet, nor any single article
of military stores, nor does any person for me, by my authority or
with my knowledge.... Considering the high station you now fill in our
national councils, I have thought these explanations proper, as well
as to counteract chimerical tales, which malevolent persons have so
industriously circulated, as to satisfy you that you have not espoused
the cause of a man in any way unfriendly to the laws, the government or
the interests of his country.”

Burr’s friend Senator John Smith, of Kentucky, also had expressed
misgivings. To him Burr wrote: “I was greatly surprised and really
hurt by the unusual tenor of your letter of the 23rd [October], and I
hasten to reply to it as well for your satisfaction as my own. If there
exists any design to separate the Western from the Eastern states,
I am totally ignorant of it. I never harbored or expressed any such
intention to anyone, nor did any person ever intimate such design to
me.”

Following his exoneration by the Grand Jury in Kentucky, Burr went
back to Nashville and called once more at the Hermitage. The General
was not at home, but the visitor got a cool reception from Rachel. She
evidently was not entirely satisfied by his written explanation to
the General. Burr then put up at the tavern at nearby Clover Bottom
where Jackson had a store. There he was confronted by Jackson and John
Coffee and again protested he had no object in view except what was
sanctioned by legal authority, and that, when the time came, he would
produce the Secretary of War’s orders. According to one account not
mentioned by Jackson in his letter to Campbell, Burr drew from his
pocket a blank commission signed by Jefferson saying, “Gentlemen, I
suppose this will satisfy you.”

Jackson concluded his letter to Campbell “... if he [Burr] is a
traitor, he is the basest that ever did commit treason, and being tore
to pieces and scattered to the four winds of heaven would be too good
for him.”

Campbell turned the letter over to Jefferson. It may well have been
responsible for the President’s declaration that Tennessee was faithful
and “particularly General Jackson.”

At Clover Bottom Burr’s persuasiveness and apparent frankness
dissipated the worst of Jackson’s suspicions. So much so that when
Burr, using the boats that Jackson’s firm had built, dropped down
the river, Rachel Jackson’s 17-year-old nephew, Stokely D. Hays, was
permitted to go along. In later years Hays testified that he carried
a letter to Governor Claiborne and that he had instructions from the
Jacksons to leave the expedition if he should discover any action on
its part that was inimical to the Government.

Jefferson’s expressed confidence in General Jackson, inspired by the
letter to Representative Campbell, alas! came too late. All sorts of
rumors were reaching the Government in Washington. One which was taken
seriously came from a Captain Read, of Pittsburgh, who asserted that
upon his honor he was firmly persuaded that “large bodies of troops
from Tennessee, with General Andrew Jackson at their head, were in
full march to join the traitors.” Perhaps Washington had also received
reports of Burr’s visits to the Hermitage, which would have lent color
to the charge. Indeed, Jackson’s complicity in the plot was so fully
accepted in the East that the Richmond _Enquirer_, while rejoicing that
Wilkinson had been “tampered with unsuccessfully” added that “we must
acknowledge that we have entertained involuntary suspicions of him as
well as of a militia general in Tennessee.” It regretted that it could
not also withdraw its suspicions of the militia general.

So it came about that when Secretary of War Dearborn found it necessary
to communicate with his subordinate in Tennessee on the subject of the
nation’s defense, he assumed he was writing to a man whose loyalty was
seriously questioned.

Prefacing his letter on his belief that an unlawful enterprise against
the Government had been commenced, Dearborn stated hesitantly that
“it is presumed that the Proclamation of the President ... will
have produced every exertion ... and that you will have been among
the most jealous opposers of any such unlawful expedition.” He then
went on to say: “About Pittsburgh it is industriously reported among
the adventurers, that they are to be joined, at the mouth of the
Cumberland, by two regiments under the command of General Jackson.” He
concluded: “... such a story might afford you an opportunity of giving
an effectual check to the enterprise if not too late.”

Little did the Secretary of War understand the man to whom he was
writing. The suspicion of guilt contained in the letter would have
been calculated to arouse even the mildest of men. But Andrew Jackson
was not a mild man. He was least mild when his honor was in question.
The General took up his pen, but his emotions were too aroused to
permit orderly thinking. He had to make several drafts of a reply
before he settled on one that satisfied him. It would require an
exhaustive search to find anywhere as bold and unrestrained an answer
from a subordinate to his superior as the one Jackson directed to the
Secretary of War.

Wrote Jackson: “You stand convicted of the most notorious and criminal
acts of dishonor, dishonesty, want of candour and justice. You say,
Sir, that it is industriously reported among the adventurers that
they are to be joined at the mouth of the Cumberland by two regiments
under the command of General Jackson. Such a story might afford him an
opportunity of giving an effectual check to the enterprise, if not too
late.

“After I have given the most deliberate consideration to your
expressions ... I cannot draw from them any other conclusion but
this: that you believe me concerned in the conspiracy and that I was
fit subject to act the traitor of traitors, as others have done [the
reference was to Wilkinson], and that the Secretary of War could buy me
up without honor.” Dearborn did not answer the letter.

To his friend Patton Anderson, Jackson wrote: “I have received some
communications from the President and the Secretary of War. It is the
merest old-woman letter from the Secretary you ever saw.” Then he
turned on Wilkinson: “Wilkinson has denounced Burr as a traitor, after
he found that he was implicated. This is deep policy. He has obtained
thereby the command of New Orleans, the gunboats armed; and his plan
can be executed without resistance. But we must be there in due time,
before our fortifications can be erected, and restore to our government
New Orleans and the western commerce.” Then, as an afterthought: “The
Secretary of War is not fit for a granny.”

General Jackson had taken one other precautionary measure. He had sent
a messenger to Captain Bissell, who commanded the Federal post of Fort
Massac on the Ohio River a short distance above its confluence with the
Mississippi, warning him of the approach of Burr’s forces and urging
him not to let any warlike party go past him down the river. He added
that if Bissell should need help his troops were ready to march.

From Captain Bissell he shortly received a curt reply to the effect
that Burr had already arrived at Massac, that his party showed no
evidence of being on a warlike mission and had been permitted to
proceed down the river.

Already Burr’s protestations of innocence had begun to have their
effect on the General and now this report from Bissell strengthened
his conviction of Burr’s sincerity. From then on in Jackson’s judgment
Wilkinson, and not Burr, was the real culprit, and he acted accordingly.

In the ambitious roundup of witnesses that followed the Chief Justice’s
demand on the prosecution for more evidence, General Jackson was caught
and summoned by the lawyers of the Government to testify against Burr.
But, contrary to the Government’s expectations, he turned out to be
the noisiest of Burr’s champions, in the same breath attacking the
Government and defending Burr in the very shadow of the Capitol for the
benefit of anybody who chose to hear. Richmond’s best people already
were aligned with Burr and needed no exhortations. But Jackson’s
arguments were directed to the masses who up to this time had been
clamoring for Burr’s blood. Jackson, too, spoke as a Republican to
Republicans. Such a man was highly dangerous. To his friend Patton
Anderson he wrote from Richmond on June 17: “I am sorry to say that
this thing has in part assumed the shape of a political persecution.”
No wonder then that, after bringing him all the way from Tennessee to
Richmond, once the Government’s lawyers had heard about the speech, the
prosecution decided it was best not to let him testify.

But the mischief went beyond the Burr trial. The break between Jackson
and the Jefferson Administration was never mended. It was inherited
by James Madison with the result that when the War of 1812 broke out
the Government was reluctant to use their most competent general when
he was sorely needed. Had Jackson commanded on the Canadian front the
story might have been different.




_Chapter_ VIII


The Grand Jury had been selected. Counsel for the prosecution and the
defense were present with the one important exception of Luther Martin.
The audience was packed into the courtroom, impatient for the spectacle
to go on. But there was an impelling cause for delay--the Government’s
star witness had not turned up. Government’s counsel offered
reassurances, yet they could not hide the fact that they did not know
just where General Wilkinson was.

It is a considerable distance from New Orleans to Richmond, and, at the
turn of the nineteenth century, transportation was primitive. One route
Wilkinson might take was overland through wildernesses and by tortuous
roads and trails. It had taken Burr and his captors three weeks to make
the journey from Alabama to Virginia. It was more probable that the
portly Major General, who liked his comfort, would choose a sea voyage.
But that would put him at the mercy of wind and tide. To add to the
uncertainty, the General was an inveterate procrastinator with an utter
disregard for time.

Counsel for the defense made the most of the prosecution’s
embarrassment. They enlarged upon the great inconvenience members
of the Grand Jury were being put to, and that of the many witnesses
waiting to be called. They expressed doubt as to whether Wilkinson
would ever show up. Many thought him as guilty as Burr. Might he not
prefer to flee the country rather than face Aaron Burr in person and
possible exposure in Richmond?

Hay pleaded that allowance be made for a man “of General Wilkinson’s
age and bulk to travel to this city.” To which Mr. Randolph of the
defense retorted: “Surely there is enough time to travel from New
Orleans to this city in seventeen days, even with the gigantic ‘bulk’
of General Wilkinson himself.”

General Wilkinson’s protracted absence left a void that somehow had to
be filled. Mr. Hay of the prosecution was the first to try to fill it.
When court met on the morning of Monday, May 25, he offered a motion
that Colonel Burr be committed for treason. His contention was that new
evidence had appeared since the Chief Justice refused commitment for
treason earlier in the proceedings.

The defense immediately protested, Mr. Botts acting as spokesman. The
motion, he declared, took them completely by surprise. It was their
understanding that no such action was to be taken by either side
without previous consultation. And here was the prosecution breaking
the agreement. What was more, if Mr. Hay’s motion were granted it
would mean taking away from the Grand Jury a task obviously its
responsibility and giving it to the Chief Justice.

Here Mr. Randolph, the elder statesman, intervened to reinforce young
Botts. Never, he asserted, in his thirty years of practice at the bar
had he heard such an astounding proposal.

Mr. Hay explained that his purpose for making the motion was merely to
get the prisoner’s bail raised. Borrowing the explanation of Burr’s
friends for Wilkinson’s absence, he said that with the bail as low as
it was Burr, knowing he would soon have to face Wilkinson, might be
tempted to run away. He intimated that he would not put it beyond Burr
to make his exit in that craven manner.

Mr. Wickham scoffed at this. Afraid that Burr would run away, indeed!
What the prosecution was actually trying to do was to introduce
evidence in order to ruin the character of his client before the trial
had even begun.

To Wickham’s conjecture Wirt retorted: “Evidence, Sir, is the greatest
corrector of prejudice. Why, then, does Aaron Burr shrink from it?”

Mr. Randolph charged that the Government had issued an order “to
treat Col. Burr as an outlaw, and to ruin and destroy him and his
property.” Then the Colonel himself took up the argument opposing the
introduction of affidavits at this point. He called attention to the
great disadvantage he, as an individual, suffered in contrast to the
Government of the United States which could exercise a compulsory
process to obtain them.

The strategy of the defense was making itself clear. Burr was to be
portrayed as the victim of a ruthless government which denied him
his civil rights and employed the military to seize his property and
threaten his life. It was to charge the Jefferson Administration with
brutal disregard of the dignity of the humblest citizen, whose equality
before the law was Jefferson’s proudest boast.

Next day the Chief Justice presented his opinion, and it was a victory
for the prosecution. The Court, he declared, had the right to commit
even after the Grand Jury had been chosen. Mr. Hay’s motion was
sustained and now he could proceed to present the new evidence he
claimed to have on Burr’s alleged treason.

On hearing the opinion, however, Hay stated that he did not wish to
present evidence at this time, provided the prisoner’s bail were
raised. He proposed that counsel for both sides meet to see if an
agreement could be reached. The proposal was accepted and the meeting
was held, but it ended in a deadlock. Hay then proceeded to present
his evidence while the defense challenged each affidavit and witness.
Its objection to the Wilkinson affidavit was sustained. Peter Taylor,
Blennerhassett’s gardener, and Jacob Allbright, a laborer on the
island, were permitted to testify. But when the affidavit of one
Sergeant Dunbaugh was offered the defense again protested.

Judge Marshall here interposed to remark that it was becoming highly
embarrassing to him to be issuing opinions on the admission of
evidence before the trial had actually begun. To this Burr replied
that if the Chief Justice was embarrassed he would consent to a higher
bail. The sum of $10,000 was agreed upon, which put an end to this
quite unnecessary sideshow. That is, unnecessary so far as the legal
proceedings were concerned. But it had provided an opportunity for the
counsel on both sides to posture before the audience and to do their
best to influence public opinion for or against the accused according
to the side they were on.

The digression did result in setting forth a statement of the
fundamental issue that was to be iterated and reiterated during
the trial: what was treason? In the course of his argument Mr.
Botts outlined the definition of treason as it is set forth in the
Constitution.

He stated that treason is either levying war against the United States
or else giving aid and comfort to the enemy. But since in the present
instance the United States was at peace with the world, giving aid and
comfort to the enemy was ruled out.

That left the charge of levying war. But, says the Constitution,
there must be an “overt act.” Further that act must be proved by two
witnesses, and it must have occurred in the district in which the case
was being tried. All of these things, insisted Mr. Botts, had to be
proved by the Government against Burr if he was to be found guilty of
treason.

Mr. Botts contended further that the first obligation of the
prosecution was to prove the overt act. Until that act was proved, no
other evidence was admissible.

Nothing would be more damaging to the prosecution than a ruling of
the Court sustaining the contention of the defense. The prosecution’s
plan was to present the evidence chronologically, introducing all the
scheming and plotting that had been common gossip during the past few
years, and gradually working up to a climax. Colonel Burr and his
counsel touched a tender spot when they challenged this procedure.

At this juncture the defense received valuable reinforcement through
the arrival of Luther Martin of Maryland. Mr. Martin was a lawyer of
exceptional talent. A native of New Jersey, he had been educated at
Princeton from which he graduated with high honors in the class of
1766, six classes ahead of Aaron Burr. At the age of thirty he was
Attorney General of Maryland, from which high office he resigned to
build up a lucrative practice in Baltimore. Elected a delegate from
Maryland to the Constitutional Convention, he showed his courage and
his scorn for conformity by defying the powerful Virginia delegation,
headed by Washington, and championing the cause of the smaller states.
His service in the Convention, valuable as it turned out to be, had
more recently been overshadowed by his stalwart defense of Judge Chase
in the impeachment proceedings.

Another asset for the business in hand was Mr. Martin’s warm friendship
for Burr and his inveterate hatred of Thomas Jefferson. In politics
Martin was a Federalist; added to his political differences with
the President was a personal grudge resulting from an injury quite
unconsciously inflicted by Mr. Jefferson.

Luther Martin married Maria Cresap, a daughter of Col. Michael
Cresap, a frontiersman of Allegheny County, Maryland. In his “Notes
on Virginia” Jefferson included the eloquent speech of the Indian
chieftain Logan, who had befriended the early settlers yet whose wife
and children had been butchered by the whites. Jefferson’s purpose in
introducing this classic piece of rhetoric was to call attention to
the nobility of the red man. He was not aware that responsibility for
the murder had been pinned on Colonel Cresap, Martin’s father-in-law.
Martin voiced his resentment in a bitter letter to a Philadelphia
newspaper, but this public outpouring was not sufficient in itself to
erase the grudge he held against Jefferson.

Mr. Martin’s brilliance was offset by an untidy dress, coarseness of
speech and manner, and an addiction to spirits that earned him the
nickname “Old Brandy Bottle.” His capacity was phenomenal, and though
he imbibed freely this did not seem to dull his wit or befuddle his
mind. He made his entrance into the lists in Richmond as a foreigner,
but, had he wished, he might have claimed kinship with his Virginia
colleagues as a former student of Chancellor Wythe in Williamsburg and
a member of the Virginia bar practicing briefly on the state’s eastern
shore.

The business of Hay’s motion absorbed the attention of the Court
for the better part of a week, but Wilkinson’s failure to appear
continued to hold up proceedings. To a friend in New York Washington
Irving wrote impatiently: “... you can little conceive the talents for
procrastination that have been exhibited in this affair. Day after
day we have been disappointed by the non-arrival of the magnanimous
Wilkinson; day after day have fresh murmurs and complaints been
uttered; and day after day are we told that the next mail will probably
bring this noble self, or at least some account of when he may be
expected.”

Finally the Court gave up hope of the immediate arrival of the General.
The Chief Justice granted a recess of the Grand Jury for a week so
that, as Irving put it, “they might go home, see their wives, and flog
their Negroes.”

On Tuesday, June 9, the Jury was recalled and Court reconvened, but
it had nothing to do. It was now the turn of the defense to provide
diversion to keep the case from dying of inanition. Colonel Burr set
things in motion by stating that he thought he might need for his
defense a letter of General Wilkinson of October 21, 1806, addressed to
President Jefferson, which had been mentioned by the President in his
special message to Congress, and the President’s reply to the same. He
also would like to have copies of the orders with reference to himself
which had been issued to the Army and the Navy.

The Colonel said he had asked for the papers in Washington but without
result. Therefore he requested the Chief Justice to issue a _subpoena
duces tecum_ to the President of the United States demanding either
that he supply the papers or else come into court with them himself.

Burr’s request called for quick thinking on the part of the District
Attorney. How was Hay to protect his master from the indignity of a
summons yet at the same time prevent his being exposed to a charge of
concealing evidence? How was he to offer assurances without pledging
the Government to go farther than the President might want it to go?

Mr. Hay settled on a delaying action. He expressed confidence that the
Government would comply with the request if the Court should consider
the papers pertinent. On the other hand he doubted whether the Court
had the power to issue a _subpoena duces tecum_ to the President of
the United States. And, suggested Mr. Hay, since the Government was
perfectly willing to produce the papers if the Court decided they were
pertinent, what need was there for issuing a subpoena at all? Such
procedure he thought would be a waste of precious time.

Mention of time wasting brought a shout of derision from the defense.
The prosecution, they retorted, had wasted enough of it. And suppose
the Government in Washington--by which they meant Mr. Jefferson--turned
out to be less obliging than the District Attorney? The Chief Justice
here remarked somewhat wryly that the _subpoena duces tecum_ usually
was requested in cases where it was anticipated that the papers asked
for would not be produced. He inquired directly of the District
Attorney whether the prosecution would consent to the issuance of the
subpoena. On Hay’s refusal to consent the Chief Justice called for
argument.

There followed a prolonged debate, in which the Chief Justice allowed
each lawyer to say his say with no apparent time limit. The situation
was a delicate one for Mr. Jefferson. If he were to answer the
subpoena by complying with a demand to appear in court in person the
executive branch of the Government would be making abject surrender to
the judiciary. If, on the other hand, he were to claim an exemption,
he--the champion of equality of all men--would be claiming a special
privilege which even the King of England hesitated to exercise.

The Government’s counsel therefore did not go so far as to deny that
the President could be called. But Mr. Hay insisted that the defense
had to show that the papers were relevant and material. Further,
he contended that the President had a right to reserve any portion
of the letters requested whose production in court he considered
detrimental to the interests of the United States. Nor was Mr. Hay
sure the President was under any obligation to present a letter that
had been addressed to him privately. To this, lawyers of the defense
replied that in his message to Congress Mr. Jefferson had stated that
the letter was addressed to him not as a private individual but as
President of the United States. Mr. Hay suggested that a copy of the
letter might do. Mr. Wickham of the defense said they would not have it
that way. They demanded the original.

The debate gave Luther Martin the opportunity to chastise Mr. Jefferson
for which he had impatiently been waiting since his entry into the
proceedings. The President, he asserted, had undertaken to prejudge
Mr. Martin’s client by declaring that “of his guilt there can be no
doubt.” He had assumed the knowledge of the Supreme Being himself, and
pretended to search the heart of Mr. Martin’s highly respected friend.

The President, declared Mr. Martin, had proclaimed Colonel Burr a
traitor in the face of the country which had rewarded him. He had “let
slip the dogs of war, the hell-hounds of prosecution to hunt down my
friend.” And would the President of the United States, who had raised
all this absurd clamor, pretend to keep back the papers which were
wanted for this trial where life itself was at stake?

It was, continued Mr. Martin, a sacred principle that in all such cases
the accused had a right to all the evidence needed for his defense.
Then, releasing his venom on Mr. Jefferson, he exclaimed: “Whoever
withholds willfully information that would save the life of a person
charged with a capital offense, is substantially a murderer, and so
recorded in the register of Heaven.”

Mr. Wirt of the prosecution jumped to his feet to express his
astonishment at the unrestrained language used by Mr. Martin. He even
had the temerity to attack the Chief Justice for permitting it in his
Court. Suppose, he said, there were foreigners present accustomed to
regular government in their own country. What would they infer from
hearing the Federal Administration thus reviled before the Federal
judiciary and the Administration likened to “blood hounds hunting the
man with a keen and savage thirst for blood”?

“Sir,” protested Wirt, looking squarely at Judge Marshall, “no man,
foreigner or citizen, who hears this language addressed to the Court,
and received with all the complacency at least which silence can imply,
can make any inference from it very honorable to the Court.” He hoped
the Court would compel a decent respect for that government of which
they themselves formed a branch.

As for tracking the accused with bloodhounds thirsting for blood, Mr.
Wirt wished to make it clear that, for their part, the prosecution
wished only a fair trial of the case. “If the man be innocent, in
the name of God let him go; but while we are on the question of his
guilt or innocence, let us not suffer our attention and judgment to be
diverted and distracted by the introduction of other subjects foreign
to the inquiry.”

For three days opposing counsel held forth until the Chief Justice,
with a sigh of exhaustion, announced that he had heard enough
arguments on which to base a sound opinion. He then proceeded to
deliver it. If, said Judge Marshall, upon any principle the President
could be construed to stand exempt from the general provisions of
the Constitution, it would be because his duties as chief magistrate
demanded his whole time for national objects. But, he observed, it was
apparent that this demand “was not unremitting.”

The last remark was a sly dig at Mr. Jefferson for spending several
months every summer away from Washington at Monticello, his country
estate in Albemarle County, Virginia.

Now, continued Judge Marshall, if the public’s demand on the
President’s time should exist when his attendance at court was
required, it could be sworn to on the return of the subpoena. It might
serve as an excuse for not obeying the Court. But it did not serve as a
reason for not issuing the subpoena.

The Chief Justice now assumed an apologetic attitude. It could not
be denied, he said, that to issue a subpoena to a person filling
the exacting position of chief magistrate was a duty which would be
dispensed with much more cheerfully than it would be performed. But if
it was a duty the Court could have no choice in the case. He recognized
that the right to call the President into court could be abused. But,
he assured, “the guard furnished to this high officer to protect him
from being harassed by vexatious and unnecessary subpoenas, is to be
looked for in the conduct of the Court after those subpoenas have been
issued.”

In short, what Judge Marshall said was that the decision as to whether
it was appropriate for Mr. Jefferson to appear in Court rested with the
Chief Justice, not with the President.

The Chief Justice went on to defend his position. “It is not,” he said,
“for the Court to anticipate the event of the present prosecution.
Should it terminate as is expected on the part of the United States,
all those who are concerned in it should certainly regret that a paper,
which the accused believed to be essential to his defense; which may,
for aught that now appears, be essential, had been withheld from him
... it would justly tarnish the reputation of the Court which had given
its sanction to its being withheld.”

He therefore ordered that the _subpoena duces tecum_ be issued to the
President of the United States, or such of the secretaries of the
departments as might have the paper mentioned.

The Chief Justice had hardly finished delivering his opinion when Mr.
MacRae was up, clamoring for recognition. Unless his ears had deceived
him, he said, he had heard the Chief Justice remark that should the
case terminate “as is expected on the part of the United States.”
Against any such remark Mr. MacRae protested with all his might.

“The impression,” he said, “which has been conveyed by the Court that
we not only wished to have Aaron Burr accused, but that we wished to
convict him, is completely abhorrent to our feelings.” The prosecution,
he insisted, was interested only that Burr be tried.

Judge Marshall did not immediately repudiate the comment. On the
contrary, he defended it on the ground that he had inferred as much
from remarks made by them assuming the guilt of the prisoner. But
later, after reflection, he thought better of it. At the close of
Court he called the reporters to him and observed that he had no desire
that the words complained of by Mr. MacRae should remain in the written
opinion and so he had expunged them.

However impelling the demand on the President may have been to give his
time to other official matters, it did not keep him from paying close
attention to what was going on in Richmond. Messengers were constantly
passing back and forth between him and the District Attorney bearing
suggestions from the President for trying the case and reports of the
proceedings from Hay. No sooner, therefore, had the request for the
papers been made by Colonel Burr than the President was so apprised.

Mr. Jefferson replied promptly that, reserving his right to decide
independent of all other authority, what papers coming to him as
President the public interest permitted to be communicated, he assured
his readiness voluntarily to furnish on all occasions whatever the
purposes of justice might require.

Mr. Jefferson said he was under the impression that General Wilkinson’s
letter of October 21 and all other papers relating to the charges
against Burr had been turned over to the Attorney General when he first
went to Richmond in March. He took for granted they had been left with
Hay. Since he could not remember exactly what was in the papers he
would leave it to Mr. Hay to exercise his discretion as to what part to
communicate and what part to withhold.

As to the requests for the orders to the Army and the Navy, the
President observed that supplying them would amount to laying open the
whole executive books. But he would get the Secretary of War to look
at the records. He added that if the defendant supposed there were any
facts within the knowledge of the heads of departments, or of himself,
which could be useful to the defense he would be glad to provide
depositions.

“As to our personal attendance at Richmond,” the President informed
Hay, “I am persuaded it is sensible that paramount duties to the nation
at large control the obligation of compliance with their summons in
this case, as they would, should we receive a similar one to attend the
trials of Blennerhassett and others in Mississippi territory, those
instituted at St. Louis and other places on the western waters ... to
comply with such calls would leave the nation without an executive
branch.”

Feeling as he did the President was greatly annoyed when Judge
Marshall’s opinion was reported to him, still obstinately maintaining
that he should appear in court. After reflection he sat down and framed
a letter to Hay presenting his arguments against obeying the subpoena.
The Chief Justice, he complained, as was usual with him when an opinion
was to be supported, right or wrong, dwelt much on smaller objections
and passed over those which were solid. He had laid down the general
position that all persons owe obedience to subpoenas. But, argued Mr.
Jefferson, if the Constitution enjoined a particular officer to be
always engaged in a particular set of duties, did not that supersede
the general law, subjecting him to minor duties inconsistent with
these? “The Constitution enjoins his constant agency in the concerns of
six millions of people. Is the law paramount to this which calls on him
in behalf of a single one?”

Mr. Jefferson applied the Judge’s doctrine to his own case. Suppose, he
said, the sheriff of Henrico County (in which the Judge was domiciled)
should summon him from court to quell a riot. Would the Judge abandon
major duties to perform lesser ones? Then he got down to the root of
the matter, which was the battle being waged between the executive and
the judiciary.

“The leading principle of our Constitution,” he reminded, “is the
independence of the legislature, executive and judiciary of each other,
and none are more jealous of this than the judiciary. But would the
executive be independent of the judiciary if he were subject to the
commands of the latter, and to imprisonment for disobedience; if the
several courts could bandy him from pillar to post, keep him constantly
trudging from north to south and east to west, and withdraw him
entirely from his constitutional duties?”

The President now came to the most personal part of the opinion in
which the Chief Justice intimated that his duties were not unremitting.
“If,” said Mr. Jefferson, “he alludes to our annual retirement from
the seat of government, during the sickly season, he should be told
that such arrangements are made for carrying on public business that it
goes on as unremittingly there as if he were at the seat of government.
I pass more hours in public business at Monticello than I do here every
day and it is much more laborious, because all must be done in writing.”

Thus Mr. Jefferson excused himself from casting aside his official
duties in Washington and departing posthaste to Richmond at the request
of Aaron Burr and on the order of Judge Marshall. He still had to deal
with his other tormentor, Luther Martin. The President was not very
successful in concealing the fact that the vindictive attack of the
Baltimore lawyer had gotten under his skin.

While Mr. Martin was shouting invectives against the President in
Richmond there came into Mr. Jefferson’s hand a letter from a Mr.
Graybill of Baltimore. Inquiry revealed that the writer was an old
Revolutionary soldier who had set up as a flour merchant. According
to the information reaching the President, Mr. Graybill was a man of
respectable character whose word could be trusted implicitly. In his
letter Mr. Graybill said that for more than a year it had been believed
in Baltimore that Burr was engaged in some criminal enterprise and that
Luther Martin knew all about it.

In his haste to even the score with Martin the President was carried
away by the Graybill letter. He proposed to Hay that a subpoena be
issued to Graybill to appear as a witness against Burr and, while
Graybill was on the way, Hay might be considering how best to use his
testimony. Then the President put forward a fantastic idea. How about
summoning Luther Martin as a witness against Burr, meanwhile holding
Graybill ready to confront Martin? How about the prosecution moving to
commit Luther Martin as _particeps criminis_ along with Burr? Graybill,
Mr. Jefferson was assured, would fix upon him misprision of treason at
least. Mr. Jefferson did return to realities sufficiently to admit that
there might be some doubt whether the prosecution could legally examine
a witness to discredit its own witness. He recognized, too, that
lawyers considered themselves privileged from being forced to breaches
of confidence.

“At any rate,” concluded Mr. Jefferson, “his [Graybill’s] evidence
will put down this unprincipled and impudent Federal bulldog, and add
another proof that the most glamorous defenders of Burr are all his
accomplices. It will explain why L.M. flew so hastily to the aid of his
‘honorable friend,’ abandoning his clients and their property during
a session of a principal court in Maryland, now filled, so I am told,
with the clamors and ruin of his clients.”

The District Attorney, wisely perhaps, ignored these chimerical
suggestions from the White House.

Still another incident illustrated the zeal of the President of the
United States to win a conviction against Colonel Burr. It will be
recalled that Dr. Eric Bollman, the German adventurer, was one of
the messengers dispatched to Wilkinson with the fateful letter which
Wilkinson later disclosed; that when the conspiracy collapsed Wilkinson
arrested him and Swartwout and shipped them east to Washington under
arrest on charges of treason. Bollman shortly thereafter went to the
President and denied some of the exaggerated charges against Burr
that were being published in the newspapers. Bollman’s purpose was
to show that the plan did not involve a division of the Union, but
only an expedition against Spain. He was received by the President
in the presence of Secretary of State James Madison, who listened
sympathetically to what he had to say. The President suggested that
Bollman put his oral statements in writing, which Bollman did. The
German admitted later that, because of his difficulties with the
English language, some of his statements may have been misleading.
It was his understanding that Mr. Jefferson promised not to use them
against him or to let them out of his keeping. Mr. Jefferson appears to
have understood differently.

As early as May 20 the President wrote Hay that he was sending him some
blank pardons that were to be filled out at Hay’s discretion “if you
should find a defect of evidence and believe that this could supply
it.” However, he cautioned Hay that they were not to be given to gross
offenders “unless it be visible that the principal will otherwise
escape.”

Bollman evidently was regarded by the President as a man whose
testimony would be sufficiently important to justify his being given a
pardon should he consent to turn State’s evidence. A week after sending
the blank pardons to Hay he wrote him that: “If a bill [against Burr]
be found and a trial had, his [Bollman’s] evidence is deemed entirely
essential, and in that case his pardon is to be produced before he goes
to book.” In short, Bollman was to be offered a pardon if he would
testify against Burr. But Bollman was not so keen to betray his friend.
Hay filled out the pardon; Bollman spurned it. Hay then wrote the
President for instructions.

“You ask,” replied the President, “what is to be done if Bollman
finally rejects his pardon, and the Judge decides it to have no effect.
Move to commit him immediately for treason or misdemeanor.” There were
times when the mild-mannered “Sage of Monticello” could be tough.

At this point the side play was interrupted by the arrival of
the Government’s star witness, Major General James Wilkinson,
Commander-in-Chief of the United States Army. In the excitement caused
by his martial entry the _subpoena duces tecum_ was brushed aside and
almost forgotten.

On the original subpoena, now in the Federal Courthouse in Richmond, is
an indorsement in Burr’s handwriting indicating that he did not expect
to bring the President into court. On the other hand, the language
used by the Chief Justice in his opinion certainly indicated that he
expected the President to appear in person. Certainly the President,
in setting forth in his letter to Hay his reasons for not coming,
indicated that he thought he had been summoned to appear. However,
when the writ itself was drawn up it stated that neither the personal
attendance of the President nor the other officers of government
mentioned was required. When the critical moment came Marshall recoiled
from a direct challenge.

Nevertheless a void of several days had been packed with dramatics.
The lawyers had been given a chance to exercise their eloquence and the
audience had been well entertained. More to the point, Mr. Jefferson
had been unmercifully badgered. That probably was as much as Colonel
Burr and his counsel expected anyway.




_Chapter_ IX


James Wilkinson was born of good English stock on a farm near Benedict,
in southern Maryland, in 1757. A medical career was planned for the
boy and he was put under a relative to study for the profession. This
was followed by formal training in Philadelphia. A brief adventure
into medicine was interrupted by the outbreak of the Revolution when
young Wilkinson was seized with patriotic zeal, volunteered in a rifle
company, and marched off to join the American forces in Boston.

This transition from a medical to a military career proved permanent.
Wilkinson’s genius for self-advancement soon manifested itself. He was
an extrovert who did not believe in hiding his light under a bushel.
There may have been some doubt among his comrades as to his enthusiasm
for engaging in hand-to-hand combat or making a desperate last stand,
but none whatever as to his ability in ingratiating himself with his
superiors.

He was aide successively to General Nathanael Greene and General
Benedict Arnold and took part with the latter in the campaign against
Quebec. On that strenuous expedition he first made the acquaintance of
Aaron Burr. Unlike Burr he did not enjoy the distinction of having a
general die in his arms, but his services were sufficiently noteworthy
to lead to a promotion to lieutenant colonel.

The warrior’s next assignment was on the staff of General Horatio
Gates who made him deputy adjutant general of the Army of the Northern
Departments. It was then he first exhibited a fatal quality for
appearing wherever intrigue was in the air. This instance was the
Conway Cabal whose object was to cashier Washington and put Gates in
his place. The Commander first got wind of it when Wilkinson, arriving
in a garrulous mood at Lord Stirling’s headquarters, let out the
contents of an incriminating letter from Conway to Gates. Wilkinson’s
later version of the incident was that he deliberately made the
disclosure. He was to develop an exceptional gift for shifting from the
role of conspirator to patriot when the going got hot.

However deeply he may have been involved in the plot it did not
interfere with his continued rise in the military. He was promoted to
brigadier and appointed clothier-general of the American Army, but
he neglected his work, drew a rebuke from Washington, and shortly
thereafter resigned from the service.

Meanwhile Wilkinson had married Ann, daughter of John Biddle of
Philadelphia, a merchant and innkeeper. His devotion to his wife was
the one sincere and admirable feature of his life. He bought an estate
in Pennsylvania and made a brief entry into local politics, serving as
member of the State Assembly.

Like Burr, Wilkinson was extravagant, loved display, and lived
beyond his means. In an age when heavy drinking was not uncommon his
indulgence was sufficiently conspicuous to provoke comment. He was soon
overwhelmed with debt and, following the example of many other men in
the same predicament, decided to go west to recoup his fortunes. It was
in Kentucky and the Southwest that he was destined to spend the rest of
his life.

The Spaniards were then in possession of New Orleans, parts of the
present Louisiana, the Floridas, Texas, and Mexico. They dreaded
the crude American frontiersmen as the decadent Romans dreaded the
Vandals and the Visigoths, expecting them at any time to swoop down,
loot, destroy, and conquer. One of their defense measures was to seek
out friends and informers among the Americans. In Wilkinson they
found a willing collaborator. The Spaniards about this time closed
the Mississippi to American goods coming down from the territories
and the frontiersmen were indignant with the Spaniards--and with the
indifference of their own government to their plight. It was then
that the Spanish Plot took shape. Esteban Miro, Spanish Governor of
Louisiana, fostered it by calling attention to the advantages to be
gained by an establishment of a nation beyond the Alleghenies under the
protection of Spain.

Wilkinson, one of the American leaders in the plot, saw the chance to
turn Spanish fears to his account. He made two trips to New Orleans,
ingratiated himself with Miro, and wrung from him a concession to
deposit his goods at New Orleans and to enjoy other special commercial
privileges. In return he swore allegiance to the Spanish crown and
engaged to act as a secret agent. In the Spanish reports he was
thereafter to be designated as “Number Thirteen.” It was a relationship
Wilkinson was to maintain with Miro and his successors for more than a
decade. The Spaniards agreed also to grant Wilkinson a pension of $2000
a year. But communications on the frontier were primitive; a pension
payable in silver dollars did not always get through.

In spite of this new source of income Wilkinson’s extravagance kept him
on the verge of bankruptcy. To add to his difficulties, the Spaniards
reversed their policy and withdrew his trading privileges. Wilkinson
was driven to selling most of his personal possessions. In this
extremity he accepted a commission in the United States Army, took part
as second in command in General Anthony Wayne’s invasion of the Wabash
country, burned and pillaged with the best of them, and gained quite
a reputation as an Indian fighter. At this time President Washington,
making a summary of the general officers of the army, damned Wilkinson
with faint praise, commenting that “little can be said of his abilities
as an officer. He is lively, sensible, pompous and ambitious, but
whether sober or not is unknown to me.”

Wayne learned of Wilkinson’s Spanish connections and warned the
Government. When President Washington, toward the close of his
administration, sent Andrew Ellicott out as commissioner to put into
effect a treaty with Spain, he directed him to investigate Wilkinson.
Ellicott did not at that time find reason to take the rumors seriously,
but Wilkinson himself did. In alarm he wrote to Gayoso, governor of
Natchez, “For the love of God and friendship enjoin great secrecy and
caution in all our concerns. Never suffer my name to be written or
spoken. The suspicion of Washington is wide awake.”

On the death of General Wayne in 1796 Wilkinson became senior officer
in the army. Though John Adams, the incoming President, knew of Wayne’s
charges against Wilkinson, he kept him on and gratified his suspicion
with true New England frugality by holding him to the rank of brigadier.

Seeing how the political wind was blowing against the Federalists,
Wilkinson set to work ingratiating himself with Thomas Jefferson. This
turned out to be a highly profitable speculation. Thereafter he enjoyed
the support and at least the professed confidence of Jefferson, yet it
is hard to believe that a man of Jefferson’s sagacity did not at times
entertain unpleasant doubts about his protégé.

When on December 20, 1803, pursuant to the terms of the Purchase,
the United States took over Louisiana from the French, Wilkinson, as
commanding general of the United States Army, shared with Governor
William C. C. Claiborne, of the Mississippi Territory, the honor of
representing the United States when the French Tricolor was lowered
from the flag-staff in the Place d’Armes in New Orleans and the Stars
and Stripes were hoisted in its place.

In 1804 Governor Don Vincente Folch of West Florida turned up in New
Orleans. A nephew of old Miro, he had been a party to the intrigues
with Wilkinson to which he referred as “the ancient history.” The two
took the occasion to renew secret relations. Wilkinson, for a price,
volunteered to recommend a course Spain might pursue to prevent the
United States from profiting by the cession of Louisiana. Asserting
that he had not received his pension for ten years he asked for
$20,000 in arrears. Actually he is estimated to have received from the
Spaniards $26,000 prior to 1796. Wilkinson also offered to supply Folch
with a text of “reflections” and to ascertain and report on the plans
and purposes of President Jefferson and his cabinet. Simultaneously,
in his capacity as commander of the American forces, he was writing
Secretary of War Dearborn that he was “collecting topographical
information in all directions and at some expense which I am persuaded
you will find highly interesting.” The reference to expense bore the
unmistakable odor of a request for compensation.

Folch, for his part, replied that he did not have the money Wilkinson
asked and suggested that he apply to the Marquis de Casa Calvo, the
boundary commissioner, who was known to be possessed of a generous
supply of cash. Calvo accepted Wilkinson’s offer but refused to
bid higher than $12,000 for his “Reflections.” These, written and
translated, advised Spain to hold on to the Floridas or exchange them
for the west bank of the Mississippi, and meanwhile to fortify strongly
the Texas and Florida borders. This from the man who, as commander
of the United States Army, might soon be called upon to lead his men
against those same fortifications! No wonder he begged the Marquis,
upon his loyalty, honor, and friendship, to avoid the use of his name
and instead employ the designation “Number Thirteen.”

In spite of his secret work for the Spaniards, and his duties as army
commander, Wilkinson still found time for another job as Governor
of the Louisiana Territory to which he was appointed by President
Jefferson, and to curry favor with his benefactor by presenting
him with a twenty page memorial describing the country between the
Mississippi and the Rio Grande.

On a trip east in 1799 Wilkinson renewed his acquaintance with Aaron
Burr whom he visited in New York. Burr was instrumental in placing
Wilkinson’s son James in Princeton. In the spring of 1804 Wilkinson
again came east. On his arrival in Washington he lent welcome color to
the dreary newborn capital by leading a cavalcade through the streets,
mounted on a blooded mare and magnificent in the uniform of a major
general of his own designing, his stirrups and spurs of gold, his
saddlecloth a leopard’s skin with dangling claws, his son and namesake
James as military aide riding a respectful distance behind him.

Again Wilkinson sought Burr’s company, addressing a letter to him at
Richmond Hill and asking a bed for the night “if it may be done without
observation and intrusion.” Burr had broken with the Republicans by
this time and Wilkinson evidently considered it unwise for President
Jefferson’s protégé to be discovered on intimate terms with so
prominent an enemy of the Administration. Burr just then was smarting
under his defeat in the campaign for Governor of New York and his next
step was uncertain. The possibilities of fame and fortune deriving from
an invasion of the Spanish possessions could well have served as an
engaging topic for gentlemen of their adventurous temperament and vivid
imagination.

Returning to Washington Wilkinson satisfied his gregarious impulses
by rubbing shoulders with Congressmen, especially those from the
Southwest, and discussing the prospects of war with Spain, lamenting
that it was not already being waged. “Mexico,” he commented,
momentarily shifting his loyalty from Spain to the United States,
“glitters in our eyes--the word is all we wait for.”

In July the duel between Hamilton and Burr was fought. In his flight
from the New Jersey authorities Burr sought refuge in the home of
Charles Biddle, a cousin of Ann Wilkinson and a warm friend of the
General.

During the following winter in Washington, while Burr was closing out
his term as Vice-President, he and Wilkinson saw much of each other. It
was then that Wilkinson got his appointment as Governor of Louisiana.
He picked as his secretary a Dr. Joseph Brown who had married the late
Mrs. Burr’s sister. The Vice-President and the General spent much time
together. It was said they were copying maps of the Floridas, New
Orleans, and the Louisiana Territory.

Mention has been made that when, in the summer of 1805, Burr first
journeyed to the West he met with Wilkinson at Fort Massac and St.
Louis. As further evidence of their intimacy at this time Wilkinson
gave Burr letters of introduction to Daniel Clark, a former partner and
one of the wealthiest men in New Orleans, and to other friends there.
Speaking of Burr in his letter to Clark, Wilkinson wrote: “To him I
refer you for many things improper to letter, and which he will not say
to any other.” In a letter to a Spanish friend he described Burr as
a “brave, learned, eloquent, gallant, honorable, discreet gentleman,
rich in the best affections of the human heart--in short a man who has
filled the second place in the Government of the United States with
dignity and admiration.”

To Senator John Adair, Kentucky leader, he penned an intriguing note in
which he said, “He [Burr] understands your merits, and reckons on you.
Prepare to visit me, and I will tell you all. We must have a peep at
the unknown world beyond.”

Innocent though these letters may have been, the cryptic terms in
which they were couched were enough to arouse suspicion. People were
beginning to talk. In September Clark sent a warning to Wilkinson,
cautiously expressed, for letters in those days were common property;
no telling who might read one before it reached its destination. Said
Clark: “Many absurd and evil reports are circulated here and have
reached the ears of the officers of the late Spanish Government,
respecting our Vice-President.... You are spoken of as his right
hand man.... What in the name of heaven could give rise to such
extravagancies? Were I sufficiently intimate with Mr. Burr and knew
where to direct a line I should take the liberty of writing to him....

“The tale is a horrid one if well told. Kentucky, Tennessee, the State
of Ohio, with part of Georgia and part of Carolina, are to be bribed
with plunder of the Spanish countries west of us to separate from the
Union; this is but part of the business. Heavens, what wonderful doings
there will be in those days.... Amuse Mr. Burr with an account of it.”
Clark’s letter as much as said that General Wilkinson and Burr would do
well to hold their tongues.

On Burr’s visit to Wilkinson in St. Louis after his return from New
Orleans the relations between the two men appeared to be as cordial
as ever. But newspapers were asking whether there was a conspiracy on
foot to disrupt the Union. Then came Clark’s letter. Wilkinson grew
disturbed. According to his later story, he then wrote to the Secretary
of the Navy cautioning him to keep an eye on Burr. There is no evidence
that such a letter was ever received by the Secretary. Nor, at that
time, was there any indication that Burr was conscious of any change
in Wilkinson’s cordial attitude. Thus matters stood during the winter
of 1806 and into the summer when Burr set out for the West with the
intention, in his own words, “Never to return.”

On his arrival in Pittsburgh Burr dispatched the two copies of his
letter to Wilkinson, dated July 29. This was the incriminating document
a copy of which President Jefferson sent to Congress along with his
special message. It was the one on which the Government counted heavily
in proving its charge of treason. Mention has been made that one copy
went by sea to New Orleans in the hands of the German, Dr. Erich
Bollman; the other by land in care of Samuel Swartwout, younger brother
of John Swartwout, Burr’s political ally in New York. Swartwout was
accompanied by another young man, Peter Ogden, nephew of Burr’s friend,
former Senator Dayton of New Jersey. Dayton, now out of office, was
deeply involved in the intrigue. Ogden carried a letter from Dayton to
Wilkinson.

At this point the forces of Spain and the United States were drawn up
opposite each other on the Sabine River which separated Texas from
Louisiana. General Wilkinson headed the American force and was at his
headquarters at Natchitoches in western Louisiana when, on October 8,
Swartwout and Ogden arrived with the letters.

The contents of the cipher letter from Burr has been set forth. Though
Burr may not yet have begun to doubt Wilkinson’s steadfastness, he
and Dayton evidently felt that he needed prodding. With that in mind,
Dayton wrote that he had it on good authority that Wilkinson was to
be replaced at the next session of Congress. “Jefferson,” he declared,
“will affect to yield reluctantly to the public sentiment, but yield
he will; prepare yourself, therefore for it; you know the rest.” Then,
further to stiffen the General’s morale, he added: “You are not the man
to despair, or even disposed, especially when such prospects offer in
another quarter. Are you ready? Wealth and glory. Louisiana and Mexico.”

Wilkinson spent the better part of the night decoding Burr’s letter
and pondering his next step. By morning he had reached a decision,
if he had not done so already. Timidity had prevailed over adventure
and avarice. He would abandon Burr and cling to the Government. But
he needed all the shrewdness and skill at his command to make the
transition convincing and lend credence to the story he would tell. How
would an innocent man behave? The General’s first act was to summon his
subordinate, Col. Thomas Cushing, and inform him that Swartwout was
Burr’s agent and that Burr was the head of a widespread conspiracy. He
said he would make what terms he could with the Spaniards so that his
hand might be free to deal with the conspirators.

But Wilkinson did not reveal his betrayal of Burr to Swartwout. For the
next ten days he kept the young man at Natchitoches while he pumped
him dry of information and considered his next move. By October 20
he had sufficiently mapped his course to write Jefferson that he had
discovered that a powerful association, extending from New York through
the western states, had been formed for the purpose of leading an
expedition against Vera Cruz. Judging it inadvisable to name names at
this stage he stated that it was “unknown under whose authority” the
enterprise had been projected. This ten days after he had announced to
Colonel Cushing that Burr was the man!

The following day, in another confidential dispatch, he reiterated
that, “I am not only uninformed of the prime mover and ultimate objects
of this daring enterprise, but am ignorant of the foundations on which
it rests.” This letter professing complete ignorance was the one Burr
asked the court to get from Jefferson through the _subpoena duces
tecum_. No wonder.

Then in his heart-searching dilemma the General seized upon a fantastic
scheme which he thought might enable him at one and the same time to
demonstrate his loyalty to the Government without at the same time
abandoning his friends. In a postscript he asked, “Might not some plan
be adopted to correct the delirium of the associates and by a suitable
appeal to their patriotism to engage them in the service of their
country?”

If he supposed the Government would countenance an invasion of Spanish
territory he was wrong. Jefferson’s policy just then was not one of
war, but of negotiation by purchase.

Wilkinson’s immediate concern was that Jefferson might lose faith in
him. Added to other rumors of his guilt was the open charge of the
Kentucky newspaper, _The Western World_, that he was an “intriguer and
pensioner of Spain, now associated with Aaron Burr in reviving the old
Spanish conspiracy.” There was little chance that, with all its avenues
of communication, the White House would not be informed of the articles
running in _The Western World_. Wilkinson, with an initiative he seldom
showed on the battlefield, decided to take the offensive and strike
without waiting for Jefferson to inquire.

So in another letter to the President on the same day Wilkinson called
attention to the attacks, stating that he had been “bespattered
with obloquy and slandered with a degree of virulence and indecency
surpassing all example.”

“I have at times been fearful,” he confessed, “your confidence might
be shaken by the boldness of the calumnies leveled at me: but the
reflection that I have not only enjoyed but merited the confidence of
George Washington [which was far from the truth] and his administration
... and that the same illustrious character died my friend; and that
the honest but wrong-headed President Adams approved my conduct in
opposition to his ministers, combined with the consciousness that the
wealth and power of the wide world could not for the moment divert
my course from the path of honor, dissipated my apprehensions and
determined me not to descend to the task of refuting by ... testimony
and authentic documents every imputation alleged against me, from
the most frivolous to the most sane; I therefore contented myself by
directing my attorney to bring action for slander against the printers,
to test their authorities in a court of law.” Fine words but, like the
warning to the Secretary of the Navy there is no record that such a
suit was ever brought.

Whatever his other shortcomings the General was not lacking in
eloquence, especially when he was proclaiming his own virtues. He
continued: “My ultimate views are limited to the acquisition of an
honorable fame--I have ever condemned the sordid interest of the world,
and estimate property by its immediate utility only.” This from a man
in a position of high public trust who had not hesitated to sell out to
a foreign government! He went on: “... and it is the highest ambition
of my soul on a poor occasion, to spend my last breath in the cause
of my country--a frail character, but a just one.” Finally a modest
tribute to Mr. Jefferson: “To you I owe more than I will express, lest
I should be suspected of adulation, which I detest.”

Wilkinson need not have worried about Jefferson. Almost a year before
the President had had very definite warning from District Attorney
Daveiss who wrote him that he was convinced Wilkinson “has been for
years, and now is a pensioner of Spain.” Jefferson showed the letter to
Gallatin, Madison, and Dearborn, but took no further action for reasons
that later were made clear by his cabinet officers.

By November the General had effected a treaty with the Spaniards. His
lieutenant, Colonel Cushing, was marching to the defense of New Orleans
and Wilkinson was in the throes of patriotic emotion. To Cushing he
wrote, “My God! What a situation has the country reached. Let us save
it if we can.... Hurry, hurry after me, and, if necessary, let us be
buried together in the ruins of the place we shall defend!”

Now that the die had been cast Wilkinson exerted every effort to lend
authenticity to his declarations. To Governor Claiborne of New Orleans
he dashed off a startling message of warning: “You are surrounded by
dangers of which you dream not, and the destruction of the American
Government is seriously menaced. The storm will probably burst in New
Orleans, where I shall meet it and triumph or perish.”

The Governor must have been impressed by the similarity between this
message and the one he had previously received from Andrew Jackson. The
one striking difference was that in Jackson’s message the warning had
been to watch not Burr or unknown conspirators, but Wilkinson. Then the
man who had designated himself to save the nation in its hour of peril
took up his pen and indited another dispatch to President Jefferson in
his most florid style. He wrote:

“This is a deep, dark and widespread conspiracy, embracing the young
and the old, the Democrat and the Federalist, the native and the
foreigner, the patriot of ’76 and the exotic of yesterday, the opulent
and the needy, the ins and the outs.” But let not the President
despair. Wilkinson was there and “... nothing shall be omitted which
can be accomplished by indefatigable industry, incessant vigilance
and hardy courage; and I gasconade not when I tell you that in such a
cause, I shall glory to give my life to the service of my country; for
I verily believe such an event is probable.”

Wilkinson informed the President that 7000 men were descending the Ohio
River, bringing the sympathies and good wishes of that country. This
exaggerated estimate no doubt was intended to justify his declaring
martial law when he should arrive in New Orleans.

As emotionally aroused as Wilkinson appeared to be, he still was
sufficiently the hard-headed businessman to devise as clever a bit
of scheming as can be found in his long and illustrious career of
intrigue. While at Natchitoches he had taken on as military aide one
Walter Burling, a local planter. Burling asked Wilkinson’s permission
to enter Spanish territory to buy mules. Wilkinson assented, then
told Burling he had long wanted details of the route from the United
States to Mexico City and directed him to use the trip as an excuse for
reconnaissance, and to return by water.

Wilkinson then gave Burling a letter to José de Iturrigary, Spanish
Viceroy at Mexico City, in which he related the intentions of Burr
against Mexico. He laid great stress on the measures he had taken at
the risk of his life, fame, and fortune to save the Spanish possession.
His services he valued at $121,000. Simultaneously he wrote to
President Jefferson asking reimbursement for Burling’s trip, the cost
of which he put at $1500. Thus with a single stone he hoped to kill not
two birds but three. His finesse was not entirely successful. Burling
made the trip and returned safely with information about the route.
Iturrigary thanked him for his pains but refused payment saying he
already knew about Burr’s plans. Jefferson, however, obliged with the
$1500.

On November 25 the General arrived in New Orleans. He acted vigorously
in calling out the militia, repairing the fortifications, and
impressing seamen. Then he set in motion a veritable reign of terror.
When Bollman delivered his letter from Burr, Wilkinson seized him and
threw him into jail. He tried to frighten Governor Claiborne into
declaring martial law by asserting that if drastic measures were
not taken to meet the danger “the fair fabric of our independence,
purchased by the best blood of the country, will be prostrated and the
Goddess of Liberty will take her flight from the globe forever.”

Following their exoneration by the Kentucky grand jury Burr and Adair
proceeded to Nashville where they parted company. Burr boarded his
flatboats while Adair set out on horseback for New Orleans. Many
believed Adair was second in command to Burr. Oblivious of their past
intimacy, dating from the Indian campaign, and no doubt in a desperate
effort to erase the damning fact that he had introduced Adair to Burr,
Wilkinson had Adair arrested on his arrival in New Orleans. Then he
shipped Adair, Bollman, Swartwout, and Ogden under arrest by sea,
with Baltimore and Washington as their destinations, to be dealt with
by the Government. He set up a system of secret police to search for
evidence, confiscated correspondence, and arranged with the postmaster
to rifle the mails. When Governor Claiborne refused to be bullied into
declaring martial law Wilkinson declared it himself. But when he tried
to force the Louisiana Legislature to suspend the writ of habeas corpus
the members rebelled, protesting that such action would be a violation
of the Federal Constitution.

As it grew apparent that the threat of invasion had been greatly
exaggerated and that the imminent peril of the city was largely a
figment of Wilkinson’s fevered imagination, the New Orleans public
rose in revolt against this assumption of power and disregard of their
rights.

In Washington President Jefferson was receiving news of Wilkinson’s
operations and measuring the nation’s reactions. He grew alarmed. In
a carefully worded letter to the General he alluded to Wilkinson’s
mistaken notion that 7000 men were descending the Mississippi with
Burr for an assault on New Orleans. This total, Jefferson surmised,
must have been based on the estimate of the number of men who could
be raised in the western country for an invasion of Mexico under
the authority of the Government. But, suggested the President,
evidently the General had not taken into account that the instant his
proclamation reached the West and made it known that the Government did
not sanction the expedition, all honest men deserted Burr and left him
with only a handful.

The President then tactfully cautioned the General against making
wholesale arrests. His sending Bollman and Swartwout to Washington, he
said, was supported by public opinion. So would be the sending of Burr,
Blennerhassett, and Comfort Tyler, if they were apprehended. “I hope,”
added the President, “you will not extend this deportation to persons
against whom there is only suspicion, or shades of offense not strongly
marked. I fear public sentiment would desert you, because seeing no
danger here, violations of law are felt with strength. I have thought
it just to give you these views of the sentiment here, as they may
enlighten your path.”

No doubt, continued Mr. Jefferson, Wilkinson had seen the malicious
insinuations in the newspapers against him. But the President of the
United States protested that he still had faith: “I can assure you
that your conduct, as now known, has placed you on ground extremely
favorable with the public.”

Shortly thereafter a Major Bruff of the Artillery arrived in Washington
from St. Louis. He went straight to Secretary of War Dearborn and
directly accused Wilkinson of spying for the Spaniards and committing
treason with Burr. Dearborn heard Bruff out and then replied calmly
that there had been a time when the General had not stood well with the
Executive, but his energetic measures at New Orleans had regained him
executive confidence and the President would sustain him. Bruff then
appealed to Attorney General Caesar Rodney who gave him a realistic
and revealing answer. “What would be the result,” Rodney asked, “if
all your charges against General Wilkinson should be proven? Why just
what the Federalist and all the enemies of the present administration
wish--it would turn the indignation of the people from Burr on
Wilkinson. Burr would escape and Wilkinson take his place.”

There could not have been a clearer exposition of the predicament in
which Jefferson found himself. He had declared Wilkinson to be the
savior of the nation. To confess now that Wilkinson was a knave would
convict himself of gross negligence in entrusting the safety of the
western country to such a man.

As the time for Wilkinson’s presence in Richmond approached, and as
he foresaw the attack that was sure to be made on his integrity, the
General recognized the importance of clearing himself of the charges of
being a secret agent of Spain. He therefore appealed directly to his
old friend Governor Folch of West Florida, telling him he was being
slandered because of certain alleged Spanish intrigues of a criminal
nature and asking him to state whether he, Wilkinson, had ever received
a pension from the Spanish government.

The Spanish government may on occasion have been remiss about paying
the pension in full and on time, but Folch now met nobly every
obligation his government owed the General. In a private letter to
Wilkinson whom he addressed as “my dear friend” he assured him he
had sent all the documents that pertained to “the ancient history” to
Havana, “persuaded that before the United States are in a situation
to conquer that capital, you and I and Jefferson, Madison and all
the secretaries ... will have made many days’ journey into the other
world.” Folch reminded Wilkinson that he had been in Louisiana since
1783 and had enjoyed confidential relations with his uncle, Governor
Miro, and declared that no document showing Wilkinson to have been
a secret agent in the pay of Spain existed in the records. Then in
a public letter he came out handsomely with the statement that “his
[Wilkinson’s] qualities as an honest man and one faithful to his
country entitle him to your particular attention and regard and we
judge him to be worthy of the commission he holds.”

Such was Folch’s exoneration of Wilkinson when only a few weeks before,
as Burr and his men were traveling down the Mississippi toward Spanish
territory, Yrujo, Spanish minister to the United States, was assuring
Don Cevallos, Spanish Foreign Minister, that the governors of the
Floridas were being informed of what was going on through Folch’s
connection with Wilkinson.

In assuring Wilkinson that his conduct had “placed him on ground
favorable with the public” Mr. Jefferson could not have included that
sizable portion of it that just then regarded Wilkinson as a brother in
crime with Burr, who at the last minute had lost his nerve and betrayed
his partner in a valiant attempt to save himself.

Thus was the stage set for the entry of the Government’s star witness.




_Chapter_ X


District Attorney Hay had asked that Burr be confined or that his
bail be raised for fear he would run away rather than face his former
friend and present accuser, General James Wilkinson. On the other hand,
there were quite as many people who harbored the belief that General
Wilkinson would not dare to come face to face with Burr.

Among the latter was John Randolph of Roanoke who, at the time, was
keeping up a lively correspondence with Joseph H. Nicholson, a former
colleague in the House of Representatives and now a Federal judge in
Baltimore. As late as May 31, while still waiting impatiently for the
appearance of the dilatory star witness, Randolph wrote to his friend:
“There are, I am told, upwards of forty witnesses in town, one of
whom (General Jackson of Tennessee) does not scruple to say that W
[Wilkinson] is a pensioner of Spain to his knowledge and that he will
not dare to show his face here.”

But just as Colonel Burr upset Hay’s prediction by announcing
his presence whenever his name was called, so General Wilkinson
disappointed his critics by at last showing up. Having traveled from
New Orleans by sea he landed at Hampton, Virginia. On June 10 his
arrival in Richmond by stage was announced. He was reported to be
exhausted from his journey, but his appearance did not bear out that
impression. As befitted the senior officer of the United States Army,
he exhibited himself to the public resplendent in his major general’s
uniform. To add to the impressiveness of his entry on the scene he was
constantly attended in public by his military aides, including his
son, Lieutenant James Wilkinson, Lieutenant Edmund Pendleton Gaines,
who had received Burr as a prisoner in Alabama, and Lieutenants Murray
and Smith. Gaines in later years was to achieve distinction in the War
of 1812 and eventually attain command of a department of the United
States Army. Still another member of the Wilkinson party was Mr. John
Graham, President Jefferson’s special agent who had trailed Burr after
the issuance of the presidential proclamation. This group, augmented by
their servants, produced quite a spectacular array.

On Monday, June 15, the long-awaited personal encounter between Burr
and Wilkinson took place. It was a dramatic moment worth recording
for posterity, and several first-hand accounts were duly put on paper
immediately after the event and thus preserved. General Wilkinson
himself was the author of one of them. His was written especially
for the eye of the President and it was executed in the General’s
customarily vivid manner. Colonel Burr was already in the courtroom
when Wilkinson entered. Said the General in his letter to Jefferson:
“I was introduced to a position within the bar very near my adversary.
I saluted the bench and in spite of myself my eyes darted a flash
of indignation at the little traitor, on whom they continued fixed
until I was called to the Book--here, Sir, I found my expectations
verified--this lion-hearted, eagle-eyed Hero, jerking under the
weight of conscious guilt, with haggard eyes in an effort to meet
the indignant salutation of outraged honor; but it was in vain, his
audacity failed him. He averted his face, grew pale, and affected
passion to conceal his perturbation.”

Altogether different was the impression made by the incident on
Washington Irving who was among the spectators in the courtroom
that morning. Allowance must, no doubt, be made for the fact that
Irving counted himself as being in the Burr camp and was altogether
sympathetic with the Colonel in his misfortune. According to Irving,
Burr, his back to the entrance, was facing the judge and conversing
with his counsel when the General arrived. “Wilkinson,” said Irving,
“strutted into Court, and took his stand on a parallel line with
Burr on his right hand. Here he stood for a moment swelling like a
turkey-cock, and bracing himself up for the encounter of Burr’s eye.

“The latter did not take any notice of him until the judge directed
the clerk to swear General Wilkinson. At the mention of his name Burr
turned his head, looked him full in the face with one of his piercing
regards, swept his eye over his whole person from head to foot, as if
to scan its dimensions, and then coolly resumed his former position and
went on conversing with his counsel as tranquilly as ever. The whole
look was over in an instant, but it was an admirable one. There was no
appearance of study or constraint in it; no affectation of disdain or
defiance; a slight expression of contempt played over his countenance,
such as you would show on regarding any person to whom you are
indifferent, but whom you considered mean and contemptible.”

In the next issue of the _Enquirer_, Editor Ritchie, under his nom de
plume of the “Resident of Richmond Hill,” presented a third version of
the encounter. He, of course, championed the Government’s star witness,
as the mouthpiece of the Jefferson Administration would have been
expected to do.

“He [Wilkinson],” wrote Ritchie, “has met Colonel Burr in the presence
of the court and a gaping crowd, but who can say that his countenance
was flushed and apprehensive or sicklied o’er with the pale cast of
fear and guilt? That was a deep mortification to some; had he but
fainted or betrayed the least timidity, it would have been a luscious
conquest of federalism.”

Still another witness of the scene who, in spite of the heat of that
partisan battle, somehow managed to maintain a neutral attitude,
reported that the meeting had been anticipated for so long by the two
principals and had been so often rehearsed in their imaginations that
the actual performance of neither party was convincing. Such is the
evidence which posterity is invited to hear and weigh, and from it
arrive at a decision as to which of the two principals came off the
better.

The “Resident from Richmond Hill,” having dealt with the meeting of
Burr and Wilkinson, could not resist the opportunity of reporting his
impressions of Luther Martin, lawyer for the defense. Said he: “As I
have mentioned the bar, permit me to introduce a strange lawyer from
a neighboring State whose character towers to the highest sphere of
jurisprudence. My expectations were at first as extravagant as his
character. I marked him in my mind’s eye as a happy standard by which I
might form some estimate of the Virginia bar. But pardon me ye critics
and eulogists of Mr. M. ... if I cannot join in the forensic paean, if
instead of placing him in the zenith I put him in the nadir.”

General Wilkinson’s presence in court was brief. The Grand Jury,
which had been waiting so long, was impatient to hear him. Grand jury
proceedings are customarily regarded as sacred and what goes on behind
closed doors is supposedly held in the strictest confidence. But the
Grand Jury in the Burr case, like so many other features of that
strange performance, refused to conform to the normal pattern. At least
one serious leak led to a controversy in the press. In his continued
correspondence with Judge Nicholson the jury’s foreman set down some
salty observations. Nor was the star witness silent. His experience
gave him another chance to unburden himself to his patron in Washington.

Wilkinson brought with him into the jury room the original of the
famous letter in cipher which he had received from Burr by the hand of
Samuel Swartwout. It was a complicated cipher which baffled the jury,
with one exception. That exception was John Randolph of Roanoke who
gave a demonstration of his remarkable intellect by mastering the key
at once and explaining the solution to his less astute fellow jurymen.

The General’s reception was less than cordial. To a man who claimed
to have saved his country through his bold and patriotic actions the
militant attitude of the Grand Jury was painful indeed. The General
made his lament to Jefferson: “I dreamt not of the importance attached
to my presence before I reached Hampton ... for I had anticipated that
a deluge of testimony would have been poured forth from all quarters
to overwhelm him [Burr] with guilt and dishonor.” That, perhaps, to
excuse his having kept the Grand Jury waiting. “Sadly, indeed, was I
mistaken, and to my astonishment I found the traitor vindicated and
myself condemned by a mass of wealth, character, influence and talents.
Merciful God, what a spectacle did I behold--integrity and truth
perverted and trampled under foot by turpitude and guilt, patriotism
appalled and usurpation triumphant. Did I ever expect it would depend
on my humble self to stop the current of such a polluted stream? Never,
never.”

Why the Grand Jury did not overwhelm Wilkinson with manifestations of
appreciation and gratitude is revealed by John Randolph in a letter
to Nicholson reporting on the indictments: “But,” said Randolph, “the
mammoth of iniquity escaped. Not that any man pretended to think him
innocent, but upon certain drawn distinctions that I will not pester
you with.

“Wilkinson is the only man that I ever saw who was from the bark
to the very core a villain. I cannot enter upon it here. Suffice
it to say that I have seen it--so that it is not susceptible of
misconstruction.... Perhaps you never saw human nature in so degraded
a situation as in the person of W. before the G. J., & yet this man
stands on the very summit and pinnacle of executive favor--whilst Jas.
M--e [James Monroe] denounced....” Just then Monroe stood in Randolph’s
good graces. But like so many others he soon was to incur that
inconstant gentleman’s displeasure.

A few days later Randolph wrote again: “W-- is the most finished
scoundrel that ever lived. A ream of paper would not contain all the
proofs--but what of that? He is ‘the man whom the king delighteth to
honor’ & all who are in search of promotion find it to their interest
to shut their eyes and ears to the evidence of the guilt--among them I
could name some, whom I blush to think upon.”

Randolph then described in detail the scratches with a pen-knife
and restorations in the Burr letter which he claimed were made in
Wilkinson’s own handwriting. He concludes: “Let me know what the
opinion is with you of this redoubtable thief taker (set a thief etc.)
who commands our armies.”

In another of his emotional letters to the President, Wilkinson
confessed his perplexity at the direction the case had taken: “You are
doubtless well aware,” he wrote, “of the proceedings here in the case
of Burr. To me they are incomprehensible as I am no jurist. The Grand
Jury actually made an attempt to present me for suspicion [Wilkinson
meant “misprision”] of treason on the ground of having failed to report
Dayton to you. I feel myself between Scylla and Charybdis. The jury
would dishonor me for failing in my duty, and Burr and his conspirators
for performing it.”

The jury’s treatment of Wilkinson provided the subject for a bitter
dispute that ran for days in the pages of the _Enquirer_. Under the
heading “Drowning Men Catch At Straws,” Editor Ritchie set forth
that he was authorized to contradict the slander uttered in Davis’s
_Virginia Gazette_ and _Daily Advertiser_ (The _Enquirer_’s Federalist
rival) that a motion had been made before the Grand Jury to present the
General for high treason and that on the question the jury had divided
equally.

The _Enquirer_ traced the story to “Mumford Beverly Esq., an unworthy
member of the jury, of whose attachment to monarchy and sympathy for
Burr no doubts are admitted.” A few days later Mr. John Brockenbrough,
cashier of the Bank of Virginia and a juryman, entered the controversy.
Mr. Brockenbrough said he felt no disposition to interfere in the
controversy between General Wilkinson and his friends and Mr. Beverly,
but he deemed it his duty to state the facts. He said he had not voted
for presenting General Wilkinson for high treason, for no such vote was
taken, to his knowledge.

A whole month was allowed to elapse before juryman William Daniel Jr.
at last straightened out the matter. The motion was not to present
Wilkinson for “high treason,” but for “misprision of treason.” And,
said Mr. Daniel, the jury had been seven for and nine against.

In view of the battering he had received from the Grand Jury in his
gallant effort to serve the Administration, the poor, maltreated
General was gravely in need of sympathy and moral support. And he
got it. To his lamentation the President replied: “Your enemies have
filled the public car with slanders and your mind with trouble on
that account. The establishment of their guilt will let the world
see what they ought to think of their clamors; it will dissipate the
doubts of those who doubted for want of knowledge and will place you
on higher ground in the public estimation and public confidence.” Then
wholeheartedly and without reservation Jefferson declared: “No one is
more sensible than myself of the injustice which has been aimed at
you. Accept, I pray you, my salutations and assurances of respect and
esteem.”

Surely no President of the United States ever expressed gratitude in
such extravagant terms to a subordinate who deserved it less. Necessity
makes strange bedfellows.

While the Grand Jury was behind closed doors examining witnesses,
stagnation settled on the courtroom. Again there was need for diversion
to while away the time. The ever-resourceful Burr, seldom wanting for
an idea, supplied it. He moved that an attachment be issued against
General Wilkinson for contempt in obstructing the administration of
justice by rifling the mails, imprisoning witnesses, and extorting
testimony by torture. The allusions were to his behavior in New Orleans.

The motion at least afforded opportunity for several witnesses to pour
out lurid stories of their experiences at the hands of the tyrant. It
caused Wilkinson personal embarrassment--if that were possible--by
bringing him back into court, and gave counsel on both sides a chance
to disport themselves in prolonged argument.

On June 24, while these arguments were being heard, the Grand Jury,
led by its foreman, John Randolph, filed majestically into the
courtroom and took seats in the jury box. Argument on Burr’s motion was
immediately suspended. A profound silence fell over the assemblage and
every ear was strained as Mr. Randolph, addressing the bench, announced
that the jury had agreed upon several indictments. He then handed the
official document to the clerk who read aloud the endorsements:

“An indictment against Aaron Burr for treason.”

“An indictment against Aaron Burr for misdemeanor.”

“An indictment against Harman Blennerhassett for treason.”

“An indictment against Harman Blennerhassett for misdemeanor.”

Burr, according to those present, on hearing the indictment read,
displayed no emotion. He accepted the action of the Grand Jury as
calmly as he had accepted all his misfortunes. There seems to have
been no justification for the statement in one of the local papers
next day that the prisoner was thrown into a state of consternation
and dismay. Such behavior would have been so out of keeping with the
man’s character that the report can be safely attributed to Republican
propaganda.

After the Grand Jury had withdrawn, Judge Marshall announced that
he was now under the necessity of committing Burr. So, late in the
afternoon, the former Vice-President of the United States had to
undergo the humiliation of being conducted by the marshal through a
concourse of hundreds of curious people to the city jail, notorious for
its filth and vermin. There for the night he shared a room with a man
and woman and was in close proximity to the other prisoners.

Next day the Grand Jury indicted for treason and misdemeanor ex-Senator
Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort
Tyler, Israel Smith, and Davis Floyd.

Dayton went out of office on the same day Burr ceased to be
Vice-President. After that they were known to be closely associated.
Some people believed that the treasonable projects on which they were
supposed to be engaged were as much the handiwork of Dayton as of Burr.
It was Dayton’s nephew, Peter Ogden, who carried a letter to Wilkinson
along with Samuel Swartwout who carried the letter from Burr.

Senator Smith had been suspected of being engaged in the plot from the
time Burr stopped with him at Cincinnati in the summer of 1805. When
invited by the Kentucky Grand Jury to testify to the charges brought by
Daveiss he had discreetly disappeared.

Comfort Tyler, Israel Smith, and Davis Floyd were minor leaders of the
expedition. Tyler, who came from Onandaga, New York, had served with
Burr in the New York Assembly and there fell under his spell. Israel
Smith also was a New Yorker and Davis Floyd was from Indiana Territory.
They were no doubt indicted because they were present on Blennerhassett
Island and took part in any overt act which might have taken place
there and on the proof of which the charge of treason depended.

Burr’s first thought was for his daughter Theodosia. She must be
spared anxiety and mortification. From his cell in jail he penned
her a hurried letter in which he gave no inkling of his disgusting
surroundings. The indictment for treason, he explained, was founded on
the allegation that Col. Comfort Tyler, with 20 or 30 men, had stopped
at Blennerhassett Island on the way down the Ohio and “... that though
these men were not armed, and had no military array or organization,
and though they did neither use force nor threaten it, yet having set
out with a view of taking temporary possession of New Orleans on their
way to Mexico, that such intent was treasonable, and therefore a war
was levied on Blennerhassett Island by construction.”

The Colonel went on to say that though he was at that time in
Frankfort, Kentucky, on his way to Tennessee, nevertheless, having
advised the measure, he was by construction of law present at the
island and levied war there. “In fact the indictment charges that Aaron
Burr was on that day present at the island, though not a man of the
jury supposed this to be true.”

Of the 50 witnesses who were examined by the Grand Jury, said Burr, “it
may be safely alleged that 30 at least have been perjured.” He closed
his letter with a characteristically stoical injunction: “I beg and
expect it of you that you will conduct yourself as becomes my daughter,
and that you manifest no signs of weakness or alarm.” Was he thinking
of that long line of Puritan ancestors stretching back through New
England to the old England? He need have no concern on the score of
Theodosia’s behavior. A word from her father was the equivalent of a
command. She had never failed him yet.

After Burr had spent two uncomfortable nights in the city jail his
counsel complained bitterly to the Chief Justice. They warned that
the unsanitary conditions in the jail would break down his health.
The lack of privacy, they claimed, would interfere seriously with
the consultations with his lawyers and impair his defense. Moved by
these appeals, Judge Marshall consented that the prisoner should
occupy a room in a house which had been rented by Luther Martin across
the street from the Swan Tavern. Consent was given on condition
that suitable shutters and door fastenings be installed to insure
the security of the prisoner and that a guard of seven men be kept
constantly on duty.

These terms were accepted. The installations were inspected and
declared secure by none other than Benjamin H. Latrobe, the country’s
leading architect and at the moment President Jefferson’s Surveyor
of Public Buildings, who was then busily employed in redesigning the
national Capitol. Latrobe had been approached by Burr with a proposal
to take part in building a canal around the falls of the Ohio at
Cincinnati and was among the many persons hauled in by the Government
to give testimony.

Burr and the architect were to have another relationship of which
neither of them had dreamed. Latrobe had but recently completed a
design for a penitentiary at Richmond, for the State of Virginia,
drawn up according to the specifications of Jefferson. The building
had been erected and it met all the very latest requirements set forth
by the penologists. In addition to its functional excellence it was a
noble structure characteristic of Latrobe’s imagination and genius. It
occupied a commanding position overlooking the James River on a lofty
hill next door to the one on which stood the Gray House of Robert
Gamble. That, too, it will be recalled, was the work of Latrobe. It
now housed Colonel Gamble and his wife, his two daughters, and his
sons-in-law, Governor William Cabell and William Wirt.

Since the imprisonment of Burr in Mr. Martin’s house had brought forth
charges of favoritism, Governor Cabell hit on a plan to save Judge
Marshall embarrassment by graciously offering the court quarters for
Burr in the penitentiary. The offer was accepted by his counsel on the
understanding that, as soon as the trial commenced, the prisoner should
be returned to the Martin house in town.

So it was that Colonel Burr was transferred to the penitentiary. If in
fact, as some alleged, he had plotted to make himself an emperor, the
structure in which he was now imprisoned provided a romantic setting.
The massive walls and the sturdy tower needed only a banner floating
over them to give every appearance of a castle or other imperial
stronghold. It was the nearest thing to regal quarters he would ever
occupy.

This important housekeeping matter attended to, the prisoner was
arraigned and pleaded “not guilty” to the charges. The Court ordered
the United States Marshal to summon a panel of 48 men to report on
August 3. From these a jury was to be picked for the trial.

The time had come for another intermission. With the intermission came
the need for further divertissement. Being secured in prison, Colonel
Burr was in an awkward position to supply it. This time the local
populace and the visitors to the town who had come to take part in the
trial were to be relieved of their boredom by the navy of His Britannic
Majesty, King George III.




_Chapter_ XI


On the afternoon of June 22, a few miles outside the Virginia Capes,
the British frigate _Leopard_ fired on the U.S. frigate _Chesapeake_,
killing three men, severely wounding eight, and slightly wounding
ten. Among the slightly wounded was Commodore James Barron, ranking
officer on the _Chesapeake_. The American frigate, taken by surprise
and totally unprepared for action, fired one shot of protest and struck
her colors. A party from the _Leopard_ then boarded the _Chesapeake_,
subjected it to the indignity of mustering its crew, and removed from
it four men alleged to be deserters from a British man-of-war.

The issue of impressment was then at its height. The British Navy,
short of manpower, charged that many of its men were deserting to the
American merchant marine to enjoy better pay and working conditions.
It was not at all unusual for British men-of-war to hail American
merchantmen on the high seas and search them for deserters. Nor were
the British too careful about the men they took off, frequently
including American citizens among them. This practice had been bitterly
resented by a large part of the American public, but, while complaints
had been made to the British Government, the abuse had not yet been
considered a cause for war.

The incident of the _Leopard_ and the _Chesapeake_, however, was
different. This was the first time a British man-of-war had thus dealt
with an American man-of-war. It therefore assumed the proportions of a
national insult.

In spite of the primitive communications of the times, the bad news
traveled with astonishing speed. Three days after the clash between
the two ships word of it reached Washington. It spread rapidly to the
cities up and down the coast. As it spread public indignation rose to
fever heat. Political animosities were for the time being forgotten
as the public seethed with resentment at this latest outrage at the
hands of the British Navy. The bitterness of the days of the Revolution
against King George III, who, though old and broken mentally, was still
on the throne, was revived. President Jefferson later remarked that at
that moment he held the issue of peace and war in the hollow of his
hand.

The Richmond community shared wholeheartedly in this tidal wave of
indignation. The sensational news from Norfolk reached the city
almost simultaneously with the Grand Jury’s indictment of Burr and
Blennerhassett and their alleged fellow conspirators. Momentarily the
trial yielded first place in the public consciousness to this threat
against national sovereignty from abroad.

In its issue of Saturday, June 27, the _Enquirer_ published a dispatch
from Norfolk, dated three days earlier, which revealed the intensity
of public feeling there and clarified the reports and rumors that had
reached Richmond by presenting an orderly account of what had actually
happened.

“We are now to present our readers,” said the _Enquirer_, “the details
of the most unexampled outrage, on the perpetration of which the blood
of our countrymen has been shed by the hand of violence, and the honor
and independence of our nation insulted beyond the possibility of
further forbearance.” There followed a vivid account of the attack.

Most of the young male population of Richmond was organized into
uniformed militia companies among which there was a strong and healthy
rivalry. They seized upon this opportunity to demonstrate their
patriotism and willingness to strike a blow in preserving the nation’s
honor. The Richmond Light Infantry Blues assembled at the Bell Tavern
and adopted resolutions declaring that “Members of this company pledge
their fortunes and their lives.” The Manchester Cavalry, meeting across
the river at Brooks Tavern, resolved that “We render our services to
the Government.” The smart Richmond Troop of Cavalry, calling its
members to the Eagle Tavern, appointed a committee to draft a suitable
address to the President of the United States making a tender of its
services.

The demonstrations of loyalty were not confined to the military. On
July 1 a great mass meeting of the citizens of Richmond and Manchester
and their vicinities was assembled to take under consideration the
“late hostile attack upon the _Chesapeake_.” Judge Spencer Roane, of
the Virginia Court of Appeals, was in the chair. Editor Thomas Ritchie
acted as secretary. John Gamble, Colonel Robert Gamble’s son; Peyton
Randolph, Edmund’s son; the venerable mayor Dr. Foushee; William Wirt;
and District Attorney Hay were among the speakers who swayed the
crowd. At the conclusion of the meeting a letter was addressed to the
President of the United States asserting that “While we are sensible of
the evils which must result from war, we are prepared to encounter them
in defense of our dearest rights.”

Not content with the _Leopard_ having humiliated the United States
Navy by its attack on the _Chesapeake_, the commander of the British
squadron, which included the offending frigate now anchored in
Lynnhaven Bay, poured salt on the wound by addressing threatening
remarks to the authorities of Norfolk. Governor William Cabell
interpreted this as a threat and an insult to the sovereign State
of Virginia. He promptly called his council together and, after
consultation with it, issued an order to the Virginia militia to march
to Lynnhaven Bay and there oppose any offensive action the British
might take.

Among the militia contingents were some from Richmond and there were
few dry eyes as they marched off down Main Street to what many believed
would soon be war.

One interested spectator at the trial up to this point found his
enthusiasm shifting from the court to the military. Winfield Scott,
though not then a member of the militia, mounted his horse and rode
posthaste thirty miles through the night to his home town of Petersburg
to volunteer his services. They were accepted, but the quartermaster
was hard put to it to find a uniform large enough for the youth’s
massive frame. Somehow the problem was solved and Scott accompanied the
Petersburg troops to Norfolk. This was his first taste of military life
and it got into his blood. From then on the army, not the bar, was his
vocation.

Still another man to succumb to the military contagion was William
Wirt. To his friend Dabney Carr he wrote an impassioned letter
announcing his intention to hand his wife back to her father for
the time being and join the army. Wirt formed an ambitious plan for
creating a legion of four regiments; he was to be the colonel of one,
Carr colonel of another. For a few days his letters re-echoed the
idea. But the plan aroused opposition and, as the war fever abated,
the proposal died. Thereafter Wirt was as completely wedded to the law
as Winfield Scott was to the military. Wirt’s brief dabbling in the
military was to serve as a source of ridicule among his contemporaries.

In the very middle of the excitement over the _Leopard-Chesapeake_
affair came July 4. Even under ordinary circumstances the anniversary
of the signing of the Declaration of Independence was regularly
observed by the Richmond community with appropriate ceremonies as a
patriotic celebration. The crisis acted as an extra stimulus on this
occasion.

At daybreak the populace was awakened by the firing of a single gun. At
sunrise there followed a salute of seventeen guns. Those units of the
military which had not gone to Norfolk played a conspicuous part in the
ceremonies. At 9 A.M. a troop of light horse, three volunteer companies
of light infantry, and several more militia companies assembled on
the parade ground. From there they marched to the Capitol Square with
bands playing and colors flying. Meanwhile, in the House of Delegates,
where Judge Marshall’s court had so recently adjourned, the more sedate
people of the community were listening to orations from leading
citizens of the town, then a popular form of entertainment.

At 2 P.M. the military and civilians joined forces in the Capitol
Square. There, according to regular custom, the military formed a great
circle and from the center Mayor Foushee solemnly read the Declaration
of Independence. At its conclusion three cheers were given, the band
struck up “Yankee Doodle” and followed it by “Hail, Columbia,” while
soldiers and civilians joined in the chorus.

A silence then fell over the crowd as Shelton Jones, Esquire,
distinguished for his eloquence, mounted the platform and delivered a
funeral oration in memory of the seamen who had lost their lives on the
_Chesapeake_. During the oration the troops stood at attention with
arms reversed and, as the orator concluded his address, the solemnity
of the occasion was emphasized by the roll of muffled drums and the
firing of minute guns.

These serious ceremonies duly performed, the public now turned to the
lighter features of the celebration. The militia companies repaired
to the various places of entertainment previously designated for
them while many of the civilians assembled in the Capitol for the
drinking of toasts. Word had gone out that in keeping with the theme of
independence native drinks--and no others--were to be the order of the
day. At the Capitol the official count showed that seventeen standing
toasts were drunk, the first having been proposed by Governor Cabell.

There is no mention of the Chief Justice having been present at the
celebration at the Capitol. But Richmond was a busy place that day and
the festivities were by no means confined to one spot. His absence
from the Capitol might have been traced to another and more exclusive
assemblage at an inviting spot several miles to the west of the town
known as Buchanan’s Spring. This was a shady picnic spot on the
property of the Rev. John Buchanan. It was the regular meeting place
of the social organization known as the Barbecue Club, of which Judge
Marshall was an enthusiastic member. The club, composed of the leading
citizens of the town, had already been in existence some twenty years
and it met regularly for sumptuous dinners at which individual members
took turns at being host. The Fourth of July was always the occasion of
a meeting of the club.

The dinner, laid out on a table under an open shed, had been
prepared by Jasper Crouch, Richmond’s most popular caterer. Crouch
enjoyed eating food as much as he did preparing it and, according to
contemporary accounts, he had by this time “acquired gout and the
rotundity of an alderman.” The custom of the club forbade either
dessert or wine. The ample meal was washed down with toddy, punch, and
mint julep. A diversion greatly enjoyed by members of the club was
pitching quoits, at which the Chief Justice excelled. Tradition has
it that his quoits were made especially for him and were heavier than
those used by other members.

One celebrity who, perforce, was unable to join the general public
in these festivities was Colonel Burr. He was now a prisoner in the
penitentiary; and, if his own word is to be believed, every effort
both official and unofficial was being exerted to make his stay there
as comfortable as possible. To Theodosia he wrote describing the
considerate behavior of his jailer:

“Jailer: ‘I hope, Sir, that it would not be disagreeable to you if I
should lock this door after dark?’

“Burr: ‘By no means, I should prefer it to keep out intruders.’

“Jailer: ‘It is our custom, Sir, to extinguish all lights at 9 o’clock.
I hope, Sir, you will have no objection to conform to that.’

“Burr: ‘That, Sir, I am sorry to say, is impossible, for I never go to
bed till 12, and always burn 2 candles.’

“Jailer: ‘Very well, Sir, just as you please. I should have been glad
if it had been otherwise, but, as you please, Sir.’”

A few days later Burr wrote Theodosia again: “My friends and
acquaintances of both sexes are permitted to visit me without
interruption, without inquiring their business, and without the
presence of a spy. It is well that I have an ante-chamber, or I should
often be gené with visitors.”

Alluding to the possibility of Theodosia joining him in Richmond, he
added: “If you come I can give you a bedroom and parlor on this floor.
The bedroom has three large closets, and it is a much more commodious
one than you ever had in your life.” Once more he admonished her
to observe the stoical role he expected her to play: “Remember, no
agitations, no complaints, no fears or anxieties on the road, or I
renounce thee.”

Among Richmond’s smart society it became the fashion to prepare dainty
dishes for the distinguished and charming prisoner now suffering
persecution at the hands of the irascible tyrant in the White House.
The Colonel was overwhelmed with wine jelly, a favorite Richmond sweet.
Lemons, pineapples, and other rare and exotic fruits were showered
upon him. Admirers brought him fresh butter; and to preserve it in
the torrid heat of a Richmond summer, an icebox was installed and
generously stocked by the owners of icehouses. In short, his friends
did all they could during the weeks he was behind the bars to relieve
the ennui of his confinement and to supply him with all the luxuries
his fastidious nature craved.

The ladies were foremost in their attentions. This was in contrast to
the behavior of some of the men. In a letter to a friend, Washington
Irving reported that it had almost been considered culpable to evince
toward Burr the least sympathy or support. He had, he said, seen many a
“hollow-hearted caitiff,” who basked in the sunshine of Burr’s bounty
when he was in power, and who now skulked from his side and mingled
among the most glamorous of his enemies. But this, heaven be praised,
was not the attitude of the ladies.

“The ladies alone,” observed Irving, “have felt, or at least had candor
and independence sufficient to express these feelings which do honor to
humanity. They have been uniform in their expressions of compassion for
his misfortunes, and a hope of his acquittal; not a lady, I believe, in
Richmond, whatever may be her husband’s sentiments on this subject, who
would not rejoice on seeing Col. Burr at liberty. It may be said that
Col. Burr has ever been a favorite with the sex; but I am not inclined
to account for it in so illiberal a manner; it results from that
merciful, that heavy disposition, implanted in the female bosom, which
ever inclines in favor of the accused and the unfortunate.”

Irving might have observed that the actions of some of the ladies,
whose husbands were in some manner connected with the trial, could well
have caused those husbands embarrassment. It was fortunate for them
that Richmond viewed the personal entanglements with a tolerance that
has seldom been granted in other criminal cases.

Irving could, for example, have been referring to Mrs. Robert Gamble.
The former Catherine Grattan, who had braved Indians and panthers and
other perils of the frontier in her youth, was not now to be overawed
by a son-in-law who was one of the leading lawyers for the prosecution.
Let William Wirt employ his eloquence to get Aaron Burr hanged.
Nevertheless Mrs. Gamble felt free to send refreshments from her
kitchen to the prisoner. After all, were they not neighbors? The Gray
House and the penitentiary occupied adjoining promontories. They shared
equally the architectural genius of Benjamin Henry Latrobe. Why should
not Catherine Grattan Gamble welcome Burr with all the courtesies
customarily extended by Richmonders to a new resident with the proper
social background?

Irving’s description of Burr in prison was nothing like so glowing as
that of Burr himself. The only reason for immuring the Colonel in that
abode of “thieves, cut-throats and incendiaries,” commented Irving, was
that it would save the United States a couple of hundred dollars, which
would have been the charge for guarding him at his lodgings.

Contrary to Burr’s statement that his friends had ready access to him,
Irving reported that, “I found great difficulty gaining admission to
him for a few moments. The keeper had orders to admit no one but his
counsel and his witnesses--strange measures these!

“That it is not sufficient that a man against whom no certainty of
crime is proved, should be confined by bolts, and bars and massy
walls in a criminal prison; but he is likewise to be cut off from
all intercourse with society, deprived of all the kind offices of
friendship, and made to suffer all the penalties and deprivations of a
condemned criminal. I was permitted to enter for a few moments, as a
special favor, contrary to orders.” Could it have been that the Colonel
was afraid the enthusiastic young man might stay too long?

Irving thought the Colonel seemed in lower spirits than formerly.
He was composed and collected as usual, but there was not the same
cheerfulness that Irving had hitherto remarked. The Colonel told
him that it was with difficulty that his very servant was allowed
occasionally to see him. “He had a bad cold, which I suppose was
occasioned by the dampness of his chamber which had lately been
whitewashed.” It was with a heavy heart that Irving left him.

The Colonel’s and Irving’s accounts of the imprisonment could hardly
be more contradictory. But then Burr was trying to relieve Theodosia’s
anxieties, whereas Irving’s purpose in being in Richmond was to use his
talents to turn public opinion in Burr’s favor.

Irving’s obligation to Burr’s friends for enabling him to be present at
the trial was not a small one. The young man at this stage of his life
delighted in mingling with the great and the near-great and he had had
a rare opportunity to do so in Richmond.

To his brother-in-law James Paulding, associate editor of _Salmagundi_,
he wrote enthusiastically of his experience: “I have been treated in
the most polite and hospitable manner by the most distinguished persons
of the place--those friendly to Burr and those opposed to him, and have
intimate acquaintances among his bitterest enemies. I am absolutely
enchanted with Richmond, and like it more and more every day. The
society is polished, sociable and extremely hospitable, and here is a
great variety of distinguished characters assembled on this occasion,
which gives a strong degree of interest to passing incidents.”

But there must be an end to all good things. Irving had his magazine in
New York to think about. No telling how long the trial would take. He
had been in Richmond two months and the Court had done no more than get
through the preliminaries. So before the actual business of trying Burr
began, Irving had to set out on his return home. On the way he stopped
off in Washington and from there wrote a letter to his confidante, Miss
Mary Fairlee, a charming young person who then was the reigning belle
in New York. To her he confided that, as much as he enjoyed Richmond
society, he had been faced by a serious personal problem. It was of a
sort that was likely to happen to a handsome and eligible young man on
his first appearance in a community. He was pursued by designing young
women.

“By some lucky means or other,” Irving informed Miss Fairlee, “I
got the character, among three or four novel-read damsels, of being
an _interesting young man_ [the italics are Irving’s]; now of all
characters in the world, believe me, this is the most intolerable for
any young man, who has a will of his own to support, particularly in
warm weather. The tender-hearted fair ones think you absolutely at
their command; they conclude that you must, of course, be fond of
moonlight walks, and rides at daybreak, and red-hot strolls in the
middle of the day (Fahrenheit’s Thermom. 98½ in the shade) and ‘melting
hot-hissing hot’ tea parties, and what is worse, they expect you to
talk sentiment and act Romeo, and Sir Charles and King Pepin all the
while! ’Twas too much for me; had I been in love with any one of them,
I believe I could have played the dying swain, as eloquently and
foolishly as most men, but not having the good luck to be inspired by
the tender passion, I found the slavery unsupportable; so I forthwith
set about ruining my character as speedily as possible.

“I forgot to go to tea parties; I overslept myself of a morning.
I protested against the moon and derided that blessed planet most
villainously. In a word I was soon given up as a young man of most
preposterous and incorrigible opinions, and was left to do e’en just
as I pleased. Yet, believe me, I did, notwithstanding, admire the
fair damsels of Richmond exceedingly; and, to be candid at once, the
character of the whole sex, though it has ever ranked high in my
estimation, is still more exalted than ever.”

Bless the young man! The fair damsels would have been flattered at
his general impressions of them, even though not one of them had
succeeded in winning his heart. They may have reflected that, had they
encountered him when Richmond weather was more on their side they
might have made greater headway. If Miss Fairlee was as sentimentally
inclined as the young ladies in Richmond she must have felt reassured
by this evidence that the handsome young Washington Irving would
return home to New York as detached and uninvolved as though he had
never been exposed to the wiles of designing southern belles. On the
other hand, after reading the letter and reflecting on the character
it unconsciously revealed, might she not have concluded that Irving’s
imperviousness to the assaults of impressionable females knew no
sectional bounds?

During the first week in June the _Enquirer_ in its columns had hailed
the arrival in Richmond of the “celebrated Cowper.” The _Enquirer_
hoped that the manager of the new brick theater on the edge of Shockoe
Hill would not fail to avail himself of the opportunity of gratifying
the public by engaging him for a few evenings at least.

The “celebrated Cowper” was without doubt Thomas Abthorpe Cooper, a
handsome and talented young Irish actor. No doubt Cooper, too, had been
attracted to Richmond by the gathering of celebrities there and had
concluded that the list would not be complete without the presence of
the leading actor of the day.

Richmond in the summer of 1807 not only attracted the leading actor
of the day; it attracted also an artist recently arrived from France
who was making a name for himself in the cities of the coast through
his ingenious manner of making likenesses. On Friday, July 17, the
_Enquirer_ carried on its front page a paid notice under the heading
“Likenesses Taken and Engraved.” It stated that the subscriber, as an
advertiser was politely known in those days, begged leave to inform
the ladies and gentlemen of the city of Richmond that “he takes and
engraves Likenesses in a style never introduced before in this
country.”

The subscriber respectfully solicited the same favor and patronage he
had met with in the largest cities in the United States. Samples of his
work, said the announcement, could be seen at the subscriber’s lodgings
in Mrs. Harris’s house nearly opposite the Custom House. To stir the
Richmonders to prompt action he closed his public notice by stating
that in order not to disappoint those who might desire to “set for
their likenesses,” he begged leave to suggest that his stay in the city
would be short. The notice was signed, “St. Mémin.”

The subscriber, to give him his full name, was Charles Balthazer Julien
Ferret de Saint-Mémin. Born in Dijon, France, of an aristocratic
family, he fled the French Revolution and arrived in New York in
1793. He proceeded at once to tour the cities of the East. He visited
Philadelphia, Baltimore, and Annapolis successively. Wherever he went
he left behind him a trail of his crayon portraits. They were done in
black and white crayon on pink paper with the aid of a device invented
by the gentleman himself and known as a “physionotrace.” The profile
of the subject was thrown as a shadow on the paper and there traced
with mathematical exactness. Saint-Mémin was an artist as well as a
technician. The portrait executed life size was framed in black and
gold and the whole presented a lifelike and satisfying effect.

But that was not all. In addition to every life-size portrait, the
artist made a small copper plate about two inches in diameter from
which were struck off a dozen engravings. The sitter received the
framed portrait, the engravings, and the plate. Saint-Mémin’s usual
price was $25 for gentlemen and--somewhat ungallantly--$35 for ladies.
Though high according to contemporary values the price was not
exorbitant as portraits go.

Saint-Mémin’s reputation preceded him to Richmond. Shrewd man that
he was, he no doubt counted on the trial to provide a healthy lot of
potential customers. If so, he was not disappointed. He did the Chief
Justice. He did John Wickham, and Mrs. Wickham too. He did William
Wirt, and the Cabells, the Gambles and the Mayos, and others prominent
in Richmond society.

Modern art critics are inclined to turn up their noses at Saint-Mémin’s
work because of its mechanical quality. Yet from the standpoint of
social prestige the money paid out for it could not have been better
spent. No doubt there were many men and women in Richmond who thought
of engaging Saint-Mémin. They may then have reflected that $25 or $35
was a goodly sum. They would have been unusual if they had not had more
pressing demands than portraits--perhaps new parlor furniture, or a
great four poster bed in the heavy empire style just coming into vogue.
Perhaps they reflected that at least part of that sum might be needed
to pay the fees for their children at the dancing class going on at the
Haymarket Gardens. What better and more direct way to obtain social
prestige than by sending children to a dancing class? Or a room may
have needed papering or a leaking roof called for attention.

Whatever the practical, common-sense reason, there were many who failed
to seize the opportunity presented them by Saint-Mémin. They could not
know that a hundred years or so after they had gone to their reward
their portraits, in black and white crayon on pink paper, hanging on a
wall in New York, Philadelphia, Baltimore, Annapolis, or Richmond, and
duly authenticated as an ancestor, entitled its owner to a place in the
most exclusive social circles.

In a country where a coronet is not worn a “Saint-Mémin” comes closest
to being the equivalent symbol of nobility. Anyone who unguardedly
inquires “what is a Saint-Mémin?” could offer no better proof of not
belonging. The moral of the Saint-Mémin episode is that whenever an
offer to be extravagant appears, take it. No telling what social
prestige it may bring one’s descendants.

No, following the indictment of Burr and the others, and the
adjournment of court, and while waiting for it to convene again on
August 3, Richmond was far from dull.




_Chapter_ XII


As the day for his trial approached Burr felt the need for Theodosia.
His daughter was now in Charleston with her husband and little boy. But
Burr was not the kind to yield to sentimentality. His appeal was quite
impersonal; it might have been made to any stranger. It was based on
logical reasons and did not for once intimate that in this crisis of
his life he needed the affection and understanding which only Theodosia
could give him.

“I want,” he wrote toward the close of July, “an independent and
discerning witness to my conduct and to that of government. The scene
which has passed and those about to be transacted will exceed any
reasonable credulity, and hereafter will be deemed fables, unless
attested by very high authority.”

If there was any doubt in his mind as to the outcome he evidently was
determined not to let Theodosia know it. In his letter he breathed
nothing but self-confidence. “I repeat what has heretofore been
written, that I should never invite anyone, much less those so dear
to me, to witness my disgrace. I may be immured in dungeons, chained,
murdered in legal form, but I cannot be humiliated or disgraced. If
absent you will suffer great solicitude. In my presence you will feel
none, whatever may be the malice or the power of my enemies and in both
they abound.”

It was as though Burr had trained his daughter from her birth with
this critical moment in view. And the training had been carried out
with all the puritan vigor that ran in the blood of the Burrs and the
Edwardses. The child was the first born to the Colonel and his wife,
the widow Theodosia Bartow Prevost. The event took place in 1783 while
the Burrs were still living in Albany. The infant was named for her
mother though Theodosia Prevost Burr professed that she wanted to name
it for Aaron’s sister Sally.

Soon after the baby’s arrival the mother wrote to Sally’s husband,
Tapping Reeve, announcing the event: “Providence smiled upon our wishes
and on the 21st of June blest us with a lovely daughter ... and you
will believe me, Reeve, when I tell you the dear little girl has the
eyes of your Sally, and promises to be as handsome. I would also have
given her her name; but Burr insisted on calling her Theo--assure my
sister for me that I submitted with the greatest regret.”

The baby was barely five months old when the family moved to New York
City, and there the child grew up. Soon after, another daughter was
born to the Burrs, but she died in a few years and little is known
about her. Early in little Theo’s life she exhibited a marked devotion
to her father. At the age of four years Mrs. Burr was reporting, “Our
sweet prattler exclaims at every noise, ‘There’s dear papa’ and runs to
meet him.” It was said that her attachment for her father was not of a
common nature and that when he was away she could not hear him spoken
of without an apparent melancholy.

Such accounts sound suspiciously like an effort on Mrs. Burr’s part to
flatter the Colonel into forgiving her for having presented him with
two daughters and no sons. They might be dismissed as such had not
their truth been clearly demonstrated by later events. By this time the
once delicate baby had grown into a plump, gay little girl with rosy
cheeks and a winning smile.

Little Theo’s upbringing became almost immediately the special care of
the Colonel. The way he went about it suggests that subconsciously at
least he was trying to make amends for her not being a boy. Wherever
business might take him and however occupied he might be with his law
practice and politics and other personal matters, his thoughts were
never far away from his daughter and her training.

Burr was years ahead of his time in his acceptance of revolutionary
theories on the education of women. Someone had put in his hands a
book by the pioneer feminist Mary Woolstonecraft entitled _Vindication
of the Rights of Women_. He had been greatly impressed by it. Writing
to his wife he said: “I had heard it spoken of with a coldness little
calculated to excite attention; but as I read with avidity and
prepossession everything written by a lady, I made haste to procure it,
and spent last night, almost the whole of it, in reading it. Be assured
that your sex has in her an able advocate. It is, in my opinion, a work
of genius.”

The burden of Miss Woolstonecraft’s argument was that women are as
capable of receiving an education as are men, if not more so. Burr
embraced the theory; or else he was determined to test it. Forthwith he
proceeded to put it into practice in the education of his own daughter.
To his wife he remarked: “But I yet hope, by her, to convince the
world what neither sex appears to believe, that women have souls.” So
obsessed was he with this idea that he later confided to his wife: “If
I could foresee that Theo would become a mere fashionable woman with
all the attendant frivolity and vacuity of mind, adorned with whatever
grace or allurement, I would earnestly pray God to take her forthwith
hence.” Strange sentiments coming from a man who in his usual contacts
with women was reputed to be attracted chiefly by their physical
attributes.

In his determination to give his daughter the same education he would
have given a son the Colonel spared no expense in employing tutors. At
this period, with a flourishing law practice, he was probably better
off financially than at any time in his life. Two or more hours both in
the afternoon and evening were reserved for the child’s instruction.
And Theo proved an excellent student, thriving under what surely would
have broken down the health of an ordinary child. By the age of ten
years she was reading Horace, Terence, and Lucian and preparing to
begin Homer and Vergil. Exercises in Greek grammar shared a place with
the study of Gibbon. Her curriculum included as well philosophy and
political economy, French and German.

The Colonel’s solicitude did not confine itself to Theo’s mind. It
extended to her deportment, speech, expression, and dress as well. Nor
was her musical education neglected. Under competent instruction she
mastered the two popular instruments of the day--the pianoforte and the
harp. Besides all this, in the hours set aside for recreation she was
taught to ride, skate, and dance. Not even a princess being prepared
to sit some day on a throne could have been subjected to a more
well-rounded program of education than that which Colonel Burr bestowed
on Theodosia.

Colonel Burr’s prosperity was more apparent than real. Possessed
of extravagant tastes and a flair for lavish entertainment, he was
condemned forever to live beyond his means. In addition to his house in
the city he purchased an estate outside which he named Richmond Hill.
It comprised a commodious dwelling house, a stable, a dairy, numerous
other appurtenances, and abundant ground.

Theodosia was barely ten years old when her mother, after an illness
of several months, died of cancer. Since there was no one else for the
Colonel to call on, at that tender age Theodosia assumed the exacting
duties of acting as hostess for her father. This was no insignificant
task as the Colonel delighted in extending the hospitality of his
house to distinguished visitors who were constantly arriving in New
York. Theodosia presided at table with dignity and poise and without
self-consciousness in the presence of such notables as Talleyrand,
Louis Philippe, and Jerome Bonaparte.

It is not surprising that her fame spread throughout the city and
beyond it. An English traveler who had the privilege of being received
at Richmond Hill noted in his diary that this precocious young lady was
“elegant without ostentation, learned without pedantry” and “educated
with uncommon care.” He found her speaking French and Italian with
facility and “perfectly conversant with the writers of the Augustan
Age.”

The Colonel schooled his daughter, too, in fortitude and stoicism, two
qualities which he regarded as being among the higher virtues, and
which he practiced so industriously himself. There was a tradition that
even while she was little more than a child he required her to sleep
alone in a remote part of the house the better to exercise her courage.

Yet in spite of this exacting routine, the prodigy lost none of her
feminine charm. The English visitor at Richmond Hill observed that she
“danced with more grace than any young lady in New York.” Theodosia
is reputed to have had a number of suitors. When she had become
famous many were attributed to her with whom she was barely if at all
acquainted. Washington Irving’s name, for example, was linked with
hers, though there is no convincing evidence that they ever met.

It was to be assumed that so gifted a young woman would be hard to
please and that she was not likely to be won by an ordinary man.
However, Theodosia proved not to be unconquerable. At the age of
seventeen years she was writing to young Joseph Alston in Charleston,
South Carolina: “I shall be happy to see you whenever you choose;
that, I suppose, is equivalent to very soon.... My father laughs at
my impatience to hear from you, and says I am in love.... I had not
intended to marry this twelvemonth ... but to your solicitation I yield
my judgment.”

Joseph Alston was in every way eligible. He was the son of Colonel
William Alston, a South Carolina planter, whose wealth ran to land and
slaves. He had read law and, at the age of 22 years, was the owner of
two estates in South Carolina as well as a mansion on the Hudson River
above New York. He already had displayed talent that promised to carry
him far in his profession and in the public affairs of his state.

The young people, very much in love with each other, were married at
Albany in February, 1801. After a honeymoon spent at Richmond Hill they
journeyed to Washington to be present when the Colonel was inaugurated
as Vice-President of the United States. From there Alston took his
wife to Charleston where her personality earned for her the same
popularity she enjoyed in New York.

Theodosia seems not to have been altogether happy with her in-laws.
A letter is attributed to her in which she remarked: “We travel in
company with the two Alstons. Pray teach me how to write two A’s
without producing something like an ass.” This is one of the few unkind
comments that has been credited to her. It suggests that the Alstons
must indeed have been trying. On the other hand, how could ordinary
elderly folk entertain a young woman who had been accustomed to the
stimulating company of Aaron Burr?

In the spring of the year following their marriage a son was born
to the Alstons. They named him Aaron Burr Alston. The Colonel was
delighted. The boy was not yet two years old when his grandfather began
planning for him the same exacting educational program he had imposed
on his mother. “You do not say whether the boy knows his letters,” he
wrote to Theo. “I am sure he may be taught them. He may read and write
before he is three years old. This, with speaking French, would make
him a tolerably accomplished lad of that age, worthy of his blood.”

Most remarkable of all Theodosia’s qualities was the genius she
displayed in bestowing her affection equally upon her father and her
husband without arousing the jealousy of either of them or bringing on
herself charges of favoritism or neglect. In no case was the Colonel’s
spell cast more magically than over his daughter. In her eyes he could
do no wrong. Let others accuse him of political chicanery, let them
question his integrity, let the public of New Jersey and New York
condemn him as a murderer. Let the Government of the United States
charge him with treason and its President declare that his guilt was
beyond question. In the face of it all Theodosia remained steadfast,
her faith unshaken. Though it must have been a mortification to
her pride to know that he was in prison, she did not blame him but
attributed this base treatment to the machinations of his enemies.

Toward her husband Theodosia’s demonstrations of affection were
eloquent. During their engagement she wrote him with all the girlish
enthusiasm of her seventeen years: “Where you are, there is my country,
and in you are centered all my wishes.” And again, on an occasion when
they were separated from each other: “Every moment I feel that I have
lost so much of your society which can never be regained.”

The birth of little Aaron left the mother weak and subject to physical
disorders that she was never entirely to be free of. For a time she
despaired of her life and in one of her melancholy moods she wrote
Alston: “Death is not welcome. I confess it is ever dreaded. You have
made me too fond of life. Adieu, then, thou kind, thou tender husband.
Adieu! friend of my heart. May Heaven prosper you and may we meet
hereafter.”

In the fateful summer of 1806 when Colonel Burr departed from the
East “never to return,” he was joined in the western country by the
Alstons--Theodosia, Joseph, and little Aaron. The Alstons were for a
time guests of the Blennerhassetts on their island in the Ohio River.
There Theodosia won the undying affection of Margaret Blennerhassett
and the admiration of her husband Harman. Although the Alstons were not
present at the time of the alleged “overt act,” their visit a short
time before served to increase the public’s suspicion of Alston’s
implication in the plot. His name, it will be recalled, was mentioned
in Burr’s letter to Wilkinson of July 29.

The circumstance caused Alston intense embarrassment. He had become
accustomed to the annoyance of receiving requests for loans from his
father-in-law, but that was a small matter compared with the Colonel’s
use of his name in so damaging a document as the cipher letter to
Wilkinson. In his perplexity Alston unburdened himself in a letter to
his friend Charles Pinckney, then Governor of South Carolina.

“I have,” he said, “received and read the President’s message with deep
mortification and concern; but the letter annexed to it, stated to be
a communication in cypher from Col. Burr to Gen. Wilkinson, exacted my
unfeigned astonishment.

“I solemnly avow that, when that letter was written, I had never
heard, directly or indirectly from Col. Burr or any other person, of
the meditated attack on that place, or any other part of the United
States, than I have at this moment to suspect that our militia will
be forthwith ordered on an expedition against Gibraltar. On the other
hand, I had long had strong grounds for believing that Col. Burr
was engaged by other objects, of a very different nature from those
attributed to him, and which I confess the best sentiments of my heart
approved. I need not add that those objects involved not the interests
of my country.

“Without adverting to that integrity of principle, which even my
enemies I trust have allowed me, can it be supposed that a man situated
as I am--descended from a family which has never known dishonor, happy
in the affection and esteem of a large number of relations and friends,
possessed of ample fortune, and standing high in the confidence of his
fellow-citizens--could harbor for an instant, a thought injurious to
the country which was the scene of those blessings?

“Whatever may be thought of the _heart_ of Mr. Burr, his _talents_
are great beyond question, and to reconcile with such talents the
chimerical project of dismembering the union, or wresting from
it any part of its territory is difficult indeed.... He imagined
perhaps--which, by the way, he had no right to do--that his influence
would be sufficiently great to induce my assent and thought, therefore
he might as well consider it already obtained; or which is more
probable, he might have imagined that by the apparent concern of a
number of persons from different States, a stronger impression would be
made on his correspondent.”

Alston’s letter, of course, soon became public property. Could a young
man have found himself in a more embarrassing position? His good name
had been dangerously compromised. Alston rightly felt he should clear
himself of the suspicions which mention of his name in the letter
naturally aroused. But how could he do that without casting reflections
on his father-in-law? And how could he cast reflections on his
father-in-law without showing disloyalty to Theodosia?

The effort was not altogether successful. The first paragraph of the
letter was favorable to the Colonel in that it repudiated any idea that
he was contemplating an attack on New Orleans or on any other part of
the United States. It was as much a defense of the Colonel as it was of
himself. But the closing passages did not express sentiments which were
flattering or with which Colonel Burr could be greatly pleased.

The distinction made between Burr’s “heart” and his “talents” intimated
that while the moral issue involved in a conspiracy against the
Government would not have restrained him, his intelligence would have
told him the idea of dividing the Union was impractical. Then Alston
had gone on to state frankly that Burr had no right to use his name
without his consent and to suggest that it had been only a cheap trick
to impress Wilkinson. It definitely was not the sort of letter to help
preserve peace in the family.

On the other hand, when the Government was stretching forth its mighty
hand to grasp Burr certainly was no time for discord between him and
his son-in-law. It was reported in some quarters that when Burr heard
about the letter there was a scene between the two men. If so, wisdom
and necessity triumphed over ill temper. Whatever their innermost
feelings may have been, Burr and Alston presented to the world a solid
front.

So the Colonel wanted Theodosia at his side. She was not well, but well
or not there could be only one response to his request. The Alstons
soon were on their way from Charleston to Richmond, taking little Aaron
with them. The Colonel had time for one last letter: “I am informed
that some good natured people here have provided you a house, and
furnished it, a few steps from my ‘town house’ [he was referring to
Luther Martin’s]. I had also made a temporary provision for you in my
town house whither I shall remove on Sunday; but I will not, if I can
possibly avoid it, move before your arrival, having a great desire to
receive you in this ‘mansion.’ Pray, therefore, drive directly here.”
It took more than confinement in the penitentiary to dampen Burr’s
naturally ebullient spirits.

The Alstons duly arrived in Richmond and drove directly to the
penitentiary. They spent their first night there, then moved to the
house the “good natured” Richmonders had offered them. From there
Theodosia could supervise the menage of her father and Luther Martin in
Martin’s house nearby. Her sojourn in Richmond witnessed a repetition
of her triumphs elsewhere. The Federalist upper crust found her to
be a welcome addition to their exclusive and accomplished society.
She went about making friends everywhere until observers came to the
conclusion that by her mere presence in Richmond she did more to
further the cause of the defense than all of Burr’s brilliant array of
counsel. Long after the actors in the drama had gone to their various
rewards Theodosia’s stay in Richmond and the impression her exceptional
personality made on the community was established as a part of local
legend. She could scarcely have been treated with greater deference had
she really been the empress with whose attempted creation Aaron Burr
was charged.




_Chapter_ XIII


Dudley Woodbridge, who was his partner, said of Harman Blennerhassett
that he had every sort of sense except common sense. That is the
simplest explanation why this Irish gentleman found himself in the
summer of 1807 in the State Penitentiary in Richmond, facing a charge
of treason against the United States.

Harman Blennerhassett was born quite by chance, in Hampshire, England,
while his parents were there on a visit from Ireland. He was the
youngest son of a family described as distinguished. As a boy he
attended the famous Westminster School in London and from there went
on to Trinity College, Dublin, where he was graduated with honors. He
chose law as his profession and at the age of 25 years was admitted
to the bar. Through the death of his elder brother he unexpectedly
succeeded to the family estates, which were considerable.

Harman’s sister Katherine married Captain Robert Agnew,
Lieutenant-Governor of the Isle of Man. They had a daughter Margaret
who, on reaching her teens, was sent to school in England. While
Harman was on a visit to the Agnews he was entrusted with the pleasant
mission of crossing to the mainland to bring his niece home. Harman
at this time was 31 years old and Margaret 18. In the course of the
trip he became completely infatuated with her and proposed marriage.
No doubt dazzled by this man of the world thirteen years her senior,
Margaret accepted him. When the newly married uncle and niece arrived
on the Isle of Man and Harman introduced Margaret to her parents as
his wife the Agnews were furious. In their anger and humiliation they
disinherited Margaret and repudiated Harman. In fact the Agnews and
their friends made the situation so unpleasant that the Blennerhassetts
concluded their only recourse was to leave home and seek asylum in the
United States.

Blennerhassett sold his estates, which brought him $100,000, a tidy
sum in those days, and he and Margaret sailed for New York where they
arrived in 1796. As though this were not enough to rid them of the
curse that had descended on their romantic adventure, they did not
linger long in the East but set out to look for a permanent home on the
frontier.

Reaching Pittsburgh in the fall of the year, they bought a keelboat
and dropped down the Ohio River. The valley of the Ohio was then a
wilderness save for a few small settlements at favorable spots along
the stream. One of these was Marietta where the Blennerhassetts found a
society of refined and cultivated people who received them cordially.
There they remained throughout the winter while they reconnoitered the
neighborhood for a suitable site for an estate.

At last they found what pleased them on an island in the river two
miles below the present Parkersburg, West Virginia, at the mouth of
the Little Kanawha. This island they purchased. It consisted of 170
acres, which lay in Wood County, Virginia, a significant circumstance
in the light of later developments. There the Blennerhassetts spent
$30,000 erecting a spacious two-story dwelling with wings and numerous
appurtenances. In keeping with the custom of the time, they also
purchased slaves to serve the household and work the land.

In this American wilderness they brought into being an establishment
such as might have been found in England or on the continent of Europe.
The spacious mansion was painted white and the fields surrounding it
were neatly inclosed in white post fences. Attached to the house was
a formal garden with shrubbery and hedges in the English style and
espaliers of peach, apricot, quince, and pear. With stables, barns,
overseers’ houses, and quarters for the slaves the settlement made an
impressive sight indeed.

No less impressive was the interior of the mansion which was richly
furnished from top to bottom. Costly paintings adorned the walls and
handsome imported rugs covered the floors.

Margaret Blennerhassett was above average height, well proportioned and
graceful. Her eyes were blue and her hair dark brown and, in keeping
with the prevailing mode, she wore it in a turban. In England she had
enjoyed the benefits of the best education that was to be had by a
young woman. She spoke French and Italian fluently and was well versed
in Shakespeare’s plays, which she liked to recite. She herself wrote
poetry. In spite of these intellectual qualities she delighted also in
the rugged out-of-doors life the island afforded. She rode horseback
and not infrequently took long walks on the mainland of from ten to
twenty miles in a day. Withal she was a good housekeeper and kept an
excellent table.

Nature had been less kind to Harman. He was a spare man, standing six
feet tall, and his distinguishing feature was a long nose. He was so
near-sighted that he was helpless without his eyeglasses, and it was
jocularly reported that on the rare occasions when he went hunting
he had to take his wife and a servant along to aim the gun! Unlike
his wife he was not partial to outdoor exercise, preferring to spend
his time with books and engaging in scientific experiments. He was
interested in chemistry, electricity, and astronomy. In fact he came
to know too much about electricity and its dangerous properties. A
thunderstorm so played on his nerves that he had to close the doors
and windows and get into bed. In addition to his scholarly talents
Blennerhassett was an accomplished musician, playing both the violin
and the ’cello.

The Blennerhassetts had two sons whom they named Dominic and Harman.
What with their children, their servants, their livestock, their
well-appointed house and grounds, and their deep affection for each
other they seemed at last, after a somewhat inauspicious start, to have
achieved domestic bliss. But, under the surface disturbing forces
were at work. After eight long years, life on the island was growing
monotonous and the proprietor and his family restless. Even more
disturbing, the plantation failed to clear expenses and Blennerhassett
saw his fortune gradually wasting away.

Such was the situation when Aaron Burr, on his first trip to the West
in 1805, passed down the Ohio River from Pittsburgh in his houseboat.
He mentioned in one of his letters to Theodosia at this time that
whenever he came upon a likely looking house along the river he
would dispatch a note to the owner stating that Mr. Burr, the former
Vice-President of the United States, was in the neighborhood and would
like to call. He boasted that not once was such a request refused.
Naturally Blennerhassett Island did not escape his keen eye and he was
duly impressed with its magnificence. He sent his customary note and
his request to call was readily granted.

The master was away but the Colonel was cordially received by Mrs.
Blennerhassett. It must have been a surprise to Burr to discover in
this remote frontier a woman of Margaret Blennerhassett’s breeding
and cultivation, which were of a quality little inferior even to
Theodosia’s. And surely so polished a man as Burr, and one so capable
of making himself fascinating to women, must have been a welcome sight
to Margaret who seldom had an opportunity to entertain such congenial
company. Burr probably did not discern the financial problem that hung
over the Blennerhassetts. On the contrary, the elaborate appurtenances
of the estate may readily have misled him into estimating their
fortune at a figure much greater than it was in fact. At any rate, his
attitude toward the Blennerhassetts indicated that he considered their
acquaintance well worth pursuing.

Burr must at some time on this first trip to the West also have
encountered Harman, for a correspondence sprang up between them in the
course of which Burr suggested several plans by which Blennerhassett
might improve his fortune, and the latter asked Burr’s opinion as to
the advisability of his moving to Louisiana.

The Colonel was not above using flattery to ingratiate himself with
the Irishman. “Your talents and acquirements,” he wrote, “seem to
have destined you for something more than vegetable life, and since
the first hour of our acquaintance I have considered your seclusion
as a fraud on society.” How Blennerhassett’s ears must have burned on
reading that high praise from a man of the Colonel’s standing in the
great world.

During the last days of August in the following year Colonel Burr
landed once more on Blennerhassett Island. This time he was accompanied
by a Col. Julien de Pestre, a French émigré who had served both in the
French and English armies. De Pestre now held the imposing office of
Burr’s chief-of-staff. In attendance also was one Charles Willie, a
young German acting in the capacity of Burr’s secretary. The fourth
member of the party was Dudley Woodbridge, Blennerhassett’s partner,
whom they had picked up at Marietta.

The party was most kindly welcomed by Blennerhassett and spent the
night in his house. Next day the Colonel returned to Marietta where he
contracted with Woodbridge for 100 barrels of pork. He also ordered
from a local boatyard on the Muskingum River fifteen barges of
impressive dimensions. They were to be from forty to fifty feet long
and have a ten-foot beam. One of them was to be specially equipped for
the Blennerhassett family. The whole flotilla, when completed, was
estimated to be adequate for the transportation of 500 men and their
necessary equipment and provisions. These matters attended to, Burr
continued down the river to Cincinnati.

What Burr discussed with Blennerhassett on the night he spent on the
island was not recorded, but a hint is found in four articles which
were published a few days later in the Ohio _Gazette_. Bearing the
signature “Querist” they were the work of Harman Blennerhassett. In
them he set forth arguments as to why it would be to the advantage
of the western states to separate from the Union. He dwelt upon the
fact that the money now paid to the Federal Government in taxes, and
from which the westerners derived little return, could serve a better
purpose if kept in the West and used for local improvements.

In one of the papers Querist was careful to remark: “But I wish it
understood that I have no intention of recommending either the mode or
the time in which it should be effected.” In other words, the articles
were no more than a means of sounding out the western inhabitants
to see what their reaction to the suggestion would be. Not too many
years before secession had been openly discussed in the West and it
had attracted a number of prominent citizens. But now both Kentucky
and Tennessee were glorying in their newly acquired statehood, the
transfer of New Orleans to the United States had removed that barrier
to commerce, and other grievances of the frontier people had been
corrected. In consequence, the desire to separate from the Union had
greatly diminished if it had not entirely disappeared. So much for what
Blennerhassett wrote. If the later testimony of witnesses is to be
believed, he also engaged in some indiscreet talking, as did Burr in
Cincinnati.

From Cincinnati Burr proceeded on horseback to Nashville, Tennessee,
stopping at Lexington, Kentucky, on the way. At Nashville he met
Andrew Jackson, and it was on this visit he engaged with Jackson and
John Coffee for the building of five more boats and the assembling of
supplies.

Meanwhile Theodosia and her son arrived on Blennerhassett Island, and
here, in October, they were joined by Joseph Alston. It was not long
before Margaret Blennerhassett developed an admiration for Theodosia
that bordered on idolatry. It could hardly have been otherwise. Imagine
the many interests these two exceptionally well-educated women found
they had in common. It must have been distressing to both of them when
the visit came to an end. The Alstons said goodby to Margaret and,
accompanied by Harman, set out to join Colonel Burr in Lexington,
Kentucky.

The building of the boats and the collecting of supplies soon was known
to all the community and lent force to the rumors of a conspiracy. John
Graham, Secretary of the Orleans Territory, had now been assigned by
President Jefferson to pick up Burr’s trail and to report back on his
findings. He reached Marietta on his quest in the middle of November.
There he met Blennerhassett who by now had returned home from
Kentucky. As previously mentioned, Blennerhassett, supposing Graham to
be one of Burr’s adherents, talked to him freely. He confided to him
that he thought the West would profit by getting out of the Union. He
said Burr was of the same opinion but added that the reaction to the
articles by Querist indicated that the public was not yet ripe for the
move.

In the Pittsburgh area Burr’s lieutenant, Comfort Tyler, was assembling
supplies and enlisting recruits. Reports were gaining currency that as
many as a thousand young men had responded favorably to the appeal for
volunteers. But when the time came for departure the party consisted of
not more than thirty men distributed among four boats. The immediate
objective of Tyler’s contingent was Blennerhassett Island. There the
flotilla arrived on December 7.

While Graham was in Marietta he learned that a committee of citizens,
stirred by the President’s proclamation, had been organized in Wood
County, Virginia, opposite the island, to oppose any illegal scheme
that might be in the making. On November 21 Graham met with this group
at the courthouse near Parkersburg, and Col. Hugh Phelps, commander of
the Wood County militia, told him he had been urged by Blennerhassett
to join the expedition. According to Phelps, Blennerhassett assured
him that General Andrew Jackson had promised 1,000 men, that 800 were
expected to join the expedition from Kentucky, and from 200 to 300 from
Pittsburgh. Alexander Henderson, another Wood County man who was at the
meeting, said he was not free to give details, but advised that the
United States send a strong military force to New Orleans at once.

It was then that Graham set out in haste to catch Governor Edwin Tiffin
of Ohio, who was at Chillicothe, and lay what evidence he had before
him. With equal dispatch the Governor sent a message to the Ohio
Legislature stating that Blennerhassett had approached two gentlemen of
great respectability and invited them to join in an expedition planned
by Burr to seize New Orleans by force, take possession of $2,000,000
known to be in the bank there, and also the military stores and two
brass cannon belonging to the French.

A new government, the message continued, then would be set up under
the protection of a foreign power. This done, overtures would be made
to the western states to sever their connection with the Union and
attach themselves to the new government in New Orleans. The Governor
added that he had been informed that a force of 1,500 men had been
recruited in Ohio. His recommendation to the Legislature was that it
issue authority for the seizure of the boats that were building on the
Muskingum and the provisions collected at Marietta, and for the arrest
of any of Burr’s agents discovered within the jurisdiction of the Ohio
authorities or attempting to pass down the Ohio River.

So it was that a bill containing these authorizations was prepared and
hastily passed by the Legislature, and Judge Return Jonathan Meigs and
Major General Buell were sent to Marietta with a small body of Ohio
militia to carry out the order. Mrs. Blennerhassett, who was on the
island, learned of the rising tide of public indignation and dispatched
Peter Taylor, her gardener, to Kentucky to find Blennerhassett and Burr
and to warn Burr not to return.

On hearing that the Ohio militia under Judge Meigs and General Buell
were on the way to the boat yard, Dudley Woodbridge set off for the
island to give the alarm. On the way he ran into Blennerhassett,
Comfort Tyler, and some of the young men who were going after the
boats. But they were too late. The boats had been seized by Meigs and
Buell and with them 200 barrels of provisions.

Following this loss, and alarmed by the threatening attitude of the
Wood County militia, Blennerhassett and Tyler concluded that the
expedition would be jeopardized by remaining longer on the island.
They decided, therefore, to slip away during the night on Tyler’s four
boats, leaving Mrs. Blennerhassett and the two boys on the island with
instructions to follow later when arrangements could be made.

The weather was enough to take the heart out of the conspirators. It
had snowed during the day; then the snow was followed by rain and the
ground near the river bank was a sea of mud. Regardless of the need
for secrecy, a fire was lighted where the members of the expedition
might find a little warmth and perhaps a chance to get partially dry.
Throughout these trying preliminaries Margaret Blennerhassett exhibited
surprising energy in helping with preparations for the departure.

It was 1 A.M. on the morning of December 10 when the four boats put
off from the island and began their long journey downstream. The
conspirators numbered about thirty in all. It was a sorry war they were
waging against the United States, if war it could be called. Their
departure was made none too soon. A few hours later Colonel Phelps
arrived at the head of the Wood County militia. These patriots, finding
their quarry gone, made free with Blennerhassett’s wine, got drunk,
insulted Mrs. Blennerhassett, and vented their wrath against the owner
of the house by smashing windows, breaking up pictures and furniture,
and committing other disgraceful acts of vandalism.

The Ohio authorities set a guard on the river at Cincinnati to halt
any expedition as it came down, but the little flotilla passed during
the night and was not detected. Six days after leaving the island it
arrived at Jeffersonville, Indiana, opposite Louisville. There it found
and joined forces with Davis Floyd, another Burr lieutenant, and his
detachment of two boats.

Meanwhile Burr had appeared before the two grand juries in Kentucky
and had been discharged by both of them without being indicted. He had
faced up to Andrew Jackson’s suspicions and convinced that gentleman of
his innocence of any wrongdoing against the United States. In the boats
built for him by Jackson and John Coffee he set out from Nashville down
the Cumberland River to rendezvous with his forces on the Ohio. Burr
had sent word to Blennerhassett by Jackson’s nephew that he would join
him at the mouth of the Cumberland on December 28. He actually arrived
one day ahead--the historic meeting took place on December 27. The
flotilla had now grown to ten boats and a company of not more than 100
men.

The rank and file were in need of inspiration by this time and it
seemed appropriate for the leader to say a few words to them. So
they were marshaled on Cumberland Island for that purpose. But if
they expected to get any information from their leader they were
disappointed. With his customary air of mystery Burr merely announced
that he could not at that time tell them what their destination would
be, and that he must wait for a more appropriate occasion.

From there the flotilla continued on its journey down the Ohio River.
At Fort Massac, the army post above the confluence of the Ohio and the
Mississippi where Burr and Wilkinson had conferred in the summer of
1805, Burr presented himself to the commander, Captain Daniel Bissell,
who greeted him warmly and extended to him all the courtesies of the
post. The party had completed its visit and departed when a messenger
arrived posthaste from General Jackson warning Bissell of the nature
of the expedition and urging him to halt it. Bissell, having seen the
force with his own eyes, sent the messenger back to Jackson with the
report that there was nothing to fear from it. From then on Jackson was
more than ever convinced that the furore raised by the Administration
over the conspiracy was purely political and had no basis in fact.

On January 10 the flotilla reached Bayou Pierre, some thirty miles
north of Natchez, in Mississippi Territory. There Burr landed and went
to pay a call on a friend, Judge Bruin, who lived nearby. And there,
in a newspaper handed him by the Judge, he saw his letter of July 29
to Wilkinson and knew for the first time that he had been deserted
and betrayed by the General. At Judge Bruin’s, too, he learned of the
President’s proclamation and that his arrest had been ordered by the
acting governor of the territory, Cowles Meade.

According to their later testimony some members of the party proposed
resistance to any force that might come to arrest them. But by this
time Colonel Burr perceived that matters had gone far enough. It no
doubt occurred to him also that resistance to the civil authorities
would be most incriminating. Since he was going to base his defense
on innocence of any wrongdoing he must act in accordance with that
assumption.

Therefore, as any innocent man would have done on learning that charges
had been preferred against him and that he was, so to speak, a fugitive
from justice, Burr hastened to vindicate himself by seeking out Acting
Governor Meade and surrendering at discretion. He was taken to the
village of Washington, then the capital of Mississippi Territory, where
a grand jury was summoned and the territory’s attorney general, one
Poindexter, tried to get out an indictment against him. Again, as in
Kentucky, the Colonel’s bravado stood him in good stead. The grand jury
not only refused to indict him but took the territorial officials to
task for having arrested Burr and his men without cause.

But the Colonel knew that the respite was only temporary, since the
Federal authorities were hot on his trail. So, on February 1, after
assuring his followers that he would rejoin them shortly, he assumed a
disguise and fled.

Once more Blennerhassett, Tyler, Floyd, and the rank and file of the
now pathetic little band, were arrested and placed under guard. But
they were treated with humanity and permitted occasionally to walk
about with no restraint more binding than their own honor. As soon as
the excitement died down they were set free.

After her distressing experience on the island Margaret Blennerhassett,
accompanied by the boys, took refuge in Natchez, Mississippi. There
she was joined by her husband. Curious to know the condition of his
property Harman set out in June to visit it. He had reached Lexington,
Kentucky, when on the 25th the news of the proceedings in Richmond
caught up with him and he was arrested. He at once called in Henry Clay
to defend him but, in spite of that able counsel, the court refused to
grant a release.

On July 14. Blennerhassett wrote to his wife that a messenger, after
making a rapid journey from Richmond, had brought him intelligence
of his indictment with Colonel Burr on the charges of treason and
misdemeanor. “I have no idea of attempting an escape,” he assured her.
“I feel conscious of all want of law or evidence to convict me.”

At this point his letter was interrupted by the arrival of a Mr. David
Mead who had come to arrest him on the part of the United States. “He
is an amiable, kind young man, with whom I shall set out in a few days
for Richmond.”

Four days later, from jail, Blennerhassett wrote again asking Mrs.
Blennerhassett to look for the copy of the first letter he had written
to Burr which he thought he might need for his defense. He also
asked her for any letters she could find from Burr to her. Nor was
his present predicament to interfere with his artistic pursuits if
he could help it. He directed Margaret to forward also “the morocco
case, containing my music and the two sheets of manuscript I lent Mrs.
Wallace, with my spectacles.”

At last Blennerhassett’s slow mind was beginning to perceive the
manner in which he had been exploited by Colonel Burr. To his wife
he confided: “I am extremely sorry to find the injury to private
individuals of this country in consequence of a baseless authority for
Burr’s financial operations here last autumn far exceeding my greatest
suspicions. If it be shown that he had not funds and friends pledged to
him to warrant his drafts, his conduct would appear nefarious enough to
displace all the friendships he ever formed.”

Burr was aware of the danger to himself that lay in the possible
defection of Blennerhassett. As early as May 21 he had written him from
Richmond: “I have barely time ... to assure you and Mrs. Blennerhassett
of my devoted attachment and regard, and to express my sympathy for all
the vexations you have encountered.” From then on he was to exert every
effort to keep his alleged co-conspirator in line.

Under the gracious chaperonage of young Mr. David Mead, Blennerhassett
made the journey from Lexington to Richmond, where they arrived on
August 3. Mead took his prisoner to the Washington Tavern, to the west
of the Capitol Square, and there they had an excellent dinner. This
over, another deputy marshal appeared to present Blennerhassett with a
warrant for high treason. He had a carriage waiting outside and in this
Blennerhassett was conveyed to the penitentiary where he was assigned
the sumptuous apartments lately vacated by Colonel Burr. Here he was to
remain throughout the course of Burr’s treason trial. And here he was
to find ample time to set down an account of the proceedings. He too
was to enjoy the same gracious treatment by the best people of Richmond
that had been accorded Colonel Burr.




_Chapter_ XIV


Promptly at noon on Monday, August 3, the Circuit Court of the United
States for the Fifth Circuit and District of Virginia was opened by the
Chief Justice. The midsummer heat had done nothing to discourage the
public from attendance, and, as usual, every seat and vantage place was
at a premium.

On the bench the Chief Justice in his robes of office sat alone. Judge
Griffin is not reported to have been present on this occasion. In the
places reserved for the prosecution were District Attorney Hay, Mr.
Wirt and Mr. MacRae. Ready to act for the defense were Mr. Randolph,
Mr. Wickham, Mr. Martin and Jack Baker. Baker, a jovial fellow, appears
to have been retained because of his popularity: he played a small part
in the trial.

The clerk called the names of more than 100 witnesses. Then followed
another of those legal hitches that by this time had become so
characteristic of the trial. Mr. Hay asked for a postponement since,
he said, he had been unable to furnish Colonel Burr with a list of the
witnesses and their addresses. He reported also that he had found that
the list of the venire he had delivered to the accused was inaccurate.
So the Chief Justice obligingly granted a postponement of two days, but
not before Colonel Burr had attempted to enliven the proceedings by
again asking for a _subpoena duces tecum_.

So there was nothing for the disappointed crowd to do but file out of
the courtroom to swelter through the afternoon in the taverns and in
their homes until the sun had set and darkness had brought some slight
relief. Those who were determined to follow the proceedings by this
time were beginning to realize that they would have to adapt their
habits to the spasmodic stops and starts of the hesitant machinery of
justice.

On Wednesday court assembled only to adjourn almost immediately because
witnesses were absent. On Friday another assembly was followed by
adjournment because counsel for the United States pleaded they were not
prepared to proceed. Thus another whole week passed by with nothing
tangible accomplished toward either dismissing Colonel Burr with a
clean bill of health or consigning him to the gallows.

At last, on Monday, August 10, the proceedings got under way. A touch
of novelty was provided by the first appearance in court of Harman
Blennerhassett. He had made the trip from the penitentiary to the
Capitol in fine style, riding in a carriage drawn by a span of horses
and attended by two guards. The crowd outside the courthouse was
smaller than he had anticipated, but he found the spacious courtroom
well filled. Colonel Burr entered soon afterwards and, on catching
sight of Blennerhassett, immediately came to his side, shook him warmly
by the hand and, with a welcoming smile, told him how glad he was to
see him. It was the first time the alleged conspirators had met since
Burr said goodby to his little army at Cole’s Creek in February and
slipped out into the wilderness. That magic smile and handshake were
enough to banish for the moment the resentment Blennerhassett felt over
his treatment.

Now commenced the arduous task of picking twelve good men and true from
among the prospective jurymen who had answered to their names. In view
of the fact that virtually every bit of the most important evidence
against the accused, including all the fantastic rumors, had appeared
in the press and was common knowledge to the reading public, it was
no simple task to find men of intelligence who had not already formed
their opinions.

No sooner had Mr. Buckey, the first venireman called up, been
questioned than the difficulty became apparent. Asked if he had formed
an opinion prior to receiving his subpoena Mr. Buckey replied that he
had. Mr. Hay ventured that if the question were put to this man and
every other man on the panel no jury could ever be selected in the
State of Virginia. If the Court were to adopt that doctrine, he said,
why then it would be the equivalent of acquitting the prisoner for want
of a jury to try him.

Young Botts bristled at this remark of the District Attorney. He asked
for the floor to deplore that in this country and in this case there
had been such a general expression of public sentiment. However, until
the gentlemen for the prosecution had avowed it Mr. Botts professed he
had never doubted that twelve men might be found in Virginia capable of
deciding the question with the strictest impartiality.

Judge Marshall here intervened between counsel to point out that asking
a man whether he had formed an impression about Colonel Burr was too
general. The impression might be so slight that it did not amount to an
opinion of guilt, nor go to the extent of believing he deserved capital
punishment.

Mr. Botts addressed the venireman. “Have you said that Colonel Burr was
guilty of treason?” he asked. “No,” was the reply. “I only declared
that the man who had acted as Colonel Burr was said to have done,
deserved to be hung.” “Did you,” pursued Mr. Botts, “believe that
Colonel Burr was that man?” “I did from what I had heard,” admitted Mr.
Buckey. The gentleman was rejected.

So it went with venireman after venireman. A typical instance was that
of Mr. Jervis Storrs. He was, he said, in the habit of reading the
newspapers and could not but examine their statements relative to these
transactions. If he could believe General Eaton’s assertion that the
prisoner had threatened to turn Congress out of doors and assassinate
the President, he had said and would still say that Colonel Burr
was guilty of treason. If the letter to General Wilkinson was true,
Colonel Burr had surely been guilty of something in the West that was
hostile to the interests of the United States. On the whole Mr. Storrs
expressed a wish not to serve on the jury.

Among the veniremen questioned was Peyton Randolph. He asked to be
excused on the ground that he was a lawyer, practicing at the Richmond
bar, and as such immune to jury duty. It did not seem to occur to him
that he had ample reason for not serving in view of the fact that he
was a son of Edmund Randolph, leading counsel for the defense. These
Virginia relationships were so hopelessly intertwined that Mr. Hay,
on questioning the possibility of getting twelve men in the state who
had not made up their minds, might have added a doubt that it would
be possible to organize a court, comprising judge, jury, and counsel,
where family relationships would not endanger strict impartiality.

This circumstance was abundantly illustrated when out of the list of
veniremen Colonel Edward Carrington was called to the stand. He was
the Chief Justice’s brother-in-law and a devoted friend. But this
connection had not stood in the way of his being subpoenaed for jury
duty.

On being questioned as to his fitness to serve Colonel Carrington
expressed his feelings with complete candor. He had, he admitted,
formed an unfavorable opinion of the views of Colonel Burr, but it was
not definitive. Some people said that Colonel Burr’s object was to
invade the Spanish territories; others that it was to dismember the
Union. As for himself, said Colonel Carrington, his own opinion had not
become fixed.

But there was another subject connected with the trial, on which he
had stated an opinion. That was on General Wilkinson’s actions in
New Orleans. On the basis of what Wilkinson had been told of Burr’s
activities Colonel Carrington thought the General had behaved in a
proper manner and had said so publicly.

Burr himself addressed the venireman. “Have you, Colonel, any prejudice
of a more settled kind and ancient date against me?”

“None at all,” Colonel Carrington assured him.

“He is elected,” declared Burr.

So it was that, with the Chief Justice, the prisoner, and counsel for
both sides agreeing, the brother-in-law of the Chief Justice became
one of the first four out of that first venire of nearly forty to be
elected and sworn.

Thus were concluded the proceedings on August 10. Seven days had passed
since the convening of the court and the jury still needed eight
members to complete it.

Blennerhassett, who had been a silent witness to these events, returned
to his quarters in the penitentiary. The day in court and the intense
heat oppressed him. He dined with less appetite than the day before,
and tried to get cool by pacing his commodious cell and fanning
himself. But it did no good. He soon found himself so weak he had to
lie on the floor, and there he slept he knew not how long. At length
he awakened on hearing mention of the name of Mrs. Alston. A servant
had come from Theodosia bearing a gift of oranges, lemons, and limes.
This was not the first time she had showed the same attention. In fact
Blennerhassett had not been in prison half an hour before her first
gift arrived--tea, sugar, and cakes. Alston had come, too, to offer
reassurances on the score of the money Blennerhassett had sunk in the
adventure. He had not been too successful in this, since Blennerhassett
had formed a dislike for him. In fact it seemed as though
Blennerhassett, disarmed by Burr’s ingratiating manner, vented his
spleen on the unoffending Alston. Alston had brought with him Edmund
Randolph who volunteered his professional services in Blennerhassett’s
defense.

There were other compensations for being behind bars. The prisoner was
permitted to hire a servant at $13 a month to wait on him. He was given
every liberty inside the prison, except that he could not pass from
under its roof by day or out of his room by night. He did, therefore,
have to suffer the indignity of being locked in from 8 o’clock in the
evening until sunrise.

On the other hand, no objection was made to his stocking up with
groceries and liquors. His dinner was provided by a tavern across the
road from the penitentiary. He also enjoyed the services of a fellow
prisoner who was a skillful barber.

“This Vaun,” he recorded in his diary, “is only here for 18 years,
merely for cutting his wife’s throat with precisely the same sort of
instrument with which he operates most delicately on mine every other
day.”

There came also a message from a lady unknown to him who did not wish
to have her name mentioned, begging him to accept soups and jellies.
Later Blennerhassett learned her identity. No wonder the lady felt a
delicacy about having her name mentioned as a benefactor of Burr’s
alleged accomplice. She was Eliza Carrington, adoring sister-in-law of
the Chief Justice and wife of the juryman who was to have an important
part in trying Colonel Burr. Washington Irving was no doubt right when
he praised Richmond’s women for their compassion, their boldness, and
their independence. Could he have said as much for their discretion?

Tuesday, August 11, was another sweltering day. The Court concerned
itself with completing the jury. The proceedings were uneventful save
for one brief moment when a venireman named Hamilton Morrison was
challenged by the defense.

“I am surprised why they should be in so much terror of me,” he
observed. “Perhaps my name may be the terror, for my first name is
Hamilton.”

Colonel Burr was not amused. He stated that the remark was in itself
sufficient cause for disqualifying the venireman and the facetious Mr.
Morrison was excused.

By now the venire had been exhausted and yet eight seats on the jury
still remained empty. Mr. Hay therefore moved that the Court award a
new venire, and the Chief Justice granted a panel of forty-eight and
ordered an adjournment until Thursday, the 13th, in order to allow
time for bringing it together. But when Thursday came Burr objected
that the list of the panel he had received contained no addresses. In
consequence the adjournment was continued until Saturday. Even then the
prospect was discouraging; it was beginning to look as though Mr. Hay
was right when he expressed a fear that Colonel Burr would not be tried
for want of a jury.

However, it was Colonel Burr who offered a solution to the problem. He
proposed that he be permitted to select eight men out of the new panel.
The prosecution, despairing of getting a jury any other way, agreed.
And so at last the jury box was filled, twelve days after court had
been convened for the trial.

Unlike the Grand Jury, the Petit Jury could not boast a particularly
distinguished list of members. Colonel Carrington stood out prominently
among them; so much so in fact, that the Chief Justice waved aside
whatever scruples he may have had and placed his brother-in-law in the
key position in the trial by appointing him foreman.

Though the other eleven jurymen were not destined for immortality they
all bore substantial names that meant something in Virginia. They were
David Lambert, Richard E. Parker, Hugh Mercer, Christopher Anthony,
James Sheppard, Reuben Blakey, Benjamin Graves, Miles Bott, Henry E.
Coleman, John M. Sheppard, and Richard Curd.

By the time the jury had been organized it was Saturday again and
it hardly seemed worth while to start the trial. So Judge Marshall
adjourned the Court for the weekend. Even the heavens seemed relieved
that at last progress had been made. A violent thunderstorm on Tuesday
night broke the heat wave and made life more bearable.

During the weekend Blennerhassett was the object of what he described
as “another advance from female humanity.” Mrs. Jean Auguste Marie
Chevallié, wife of the French Consul and Judge Peter Lyon’s daughter,
sent him a message asking if he would accept refreshments of
delicacies she might provide. The ladies were outdoing themselves to
see which one could qualify as benefactor-in-chief. Mrs. Chevallié’s
genteel inquiry offset in some degree the annoyance the prisoner was
experiencing at the hands of idle visitors to the penitentiary desirous
of gratifying their curiosity by surveying his countenance and his
quarters. More disturbing than that was a letter from his financial
agent in Philadelphia informing him that, because of the attachment
served on Blennerhassett’s funds, he had been obliged to dishonor all
the bills drawn and presented for acceptance since January 20 last.
Blennerhassett interpreted the statement as marking the disappearance
of the last pecuniary resources of his poor family.

Now at last, after weeks of delay, the stage was finally set. When
Court convened on Monday, the completed jury was seated. This day saw
the arrival of reinforcements for the defense in the person of Charles
Lee. His presence appears to have been designed primarily to lend
distinction to Burr’s cause by including the magic name of Lee among
his defenders. Charles Lee, a brother of “Light Horse Harry,” had been
Attorney General of the United States in Washington’s cabinet. He, too,
was a descendant of William Randolph of Turkey Island and his wife Mary
Isham. So far as the record of the trial shows, his participation was
not in proportion to his eminence as a lawyer.

When the bailiff had called the Court to order the prisoner was
directed to stand while the clerk read the indictment. It was the same
to which he had pleaded “Not guilty” when the Grand Jury returned a
true bill on June 24.

It proclaimed that the Grand Inquest of the United States of America,
in and for the Fifth Circuit and the Virginia District, did present
that Aaron Burr, late of the city of New York, and the State of New
York, attorney at law, residing within the United States and owing
allegiance and fidelity to the same, “not having the fear of God before
his eyes, nor weighing the duty of his said allegiance, but being moved
and seduced by the instigation of the devil,” on the 10th of December,
1806, at a certain place called by the name of Blennerhassett Island,
“with force and arms, unlawfully, maliciously and traitorously did
compass, imagine and intend to raise and levy war, insurrection and
rebellion against the said United States.”

The indictment, in its noble Tudor phraseology, went on to point out
that in order to achieve his purpose Burr, “with a great multitude
of persons whose names at present are unknown to the Grand Inquest
aforesaid, to a great number, to wit, _to the number of thirty persons
and upwards_, armed and arrayed in a warlike manner, that is to
say with guns, swords and dirks, and other warlike weapons as well
offensive and defensive, being then and there unlawfully, maliciously
and traitorously assembled and gathered together,” did “falsely, and
traitorously and in a warlike and hostile manner array and dispose
themselves against the United States.”

The indictment added that this force on the same day had left the
island “with the wicked and traitorous intention of descending the
river and taking possession of the city of New Orleans.”

“... a great multitude of persons ... to wit, to the number of thirty
persons and upwards....”

Not since the three famous tailors entitled their manifesto “We, the
People of England” had so little been made to sound like so much. Thus
the indictment set for the prosecution the exacting task of proving
that thirty persons, mostly youths, assembling on an island in the Ohio
River for little more than twenty-four hours, constituted levying war
against the majesty and might of the United States of America.

To render the charge even more difficult of proof the prosecution
admitted at the outset that the alleged arch-traitor, Aaron Burr, was
not even present in person at the warlike assemblage!

But was his presence necessary to prove his guilt? In the habeas corpus
proceedings in the case of Erich Bollman and Samuel Swartwout the
Chief Justice had delivered an opinion indicating that it was not. The
prosecution lost no opportunity of reminding him of it. It was on this
opinion that it had largely counted on a conviction.

So, in his opening remarks to the jury, Mr. Hay once more quoted from
the Chief Justice’s opinion: “... if war be levied, that is, if a body
of men be actually assembled for the purpose of effecting by force a
treasonable purpose, all those who perform any part, however minute,
_or however remote from the scene of action_, are to be considered as
traitors.”

Mr. Hay went farther afield. He delved into the English authorities to
demonstrate that in Great Britain, under the statute of 25 Edward III,
on which the American theory of treason was based, the crime of treason
might be committed not only in the physical absence of the principal
but also without the bearing of arms.

When Mr. Hay had completed his opening statement, Colonel Burr appealed
to the Court to expedite the business by meeting as early as possible
and adjourning late. He cited the English custom of sitting from twelve
to sixteen hours a day. Learned counsel shuddered at the very thought.
Objection was instantly raised on the ground that English courts did
not have to contend with the heat of Richmond in midsummer. Tempering
justice with mercy, Judge Marshall ruled that the Court would meet at
nine o’clock in the morning and sit until four o’clock in the afternoon.

These preliminaries having been attended to, the call came for the
first witness for the prosecution and General Eaton was sworn. No
sooner had he taken the stand than the defense was on its feet
protesting the propriety of hearing Eaton’s evidence. They contended
that it had to do only with intention. Therefore before it could be
admitted an overt act had to be proved. The controverted point led to a
long and animated debate which consumed the rest of the afternoon.

As was to be his custom throughout the trial, Judge Marshall adjourned
Court before presenting his opinion. With his genius for application he
would work far into the night preparing his opinion in order to have
it ready when Court convened in the morning. Where he was concerned
there was to be no undue haste, no chance for misconstruction. The
opinion would be in writing and reflect the logical approach that was
characteristic of his legal papers. It was on his acute reasoning
rather than profound knowledge of the authorities that the force of his
opinions depended.

In the morning, true to his promise, the Chief Justice was ready to
deliver his opinion. It was a dissertation on what testimony was and
was not relevant to this time. As applied to General Eaton’s testimony
it permitted that part which related to Burr’s design to seize New
Orleans and divide by force the western from the Atlantic states. It
excluded the more colorful passages which had to do with Burr’s alleged
plans for the overthrow of the Government in Washington.

With this injunction Eaton was told to go ahead and tell his story in
his own way. The hint, however, was made to him that he might well
leave out autobiographical material having to do with his services to
the nation in Tripoli, which he considered a basis for the nation’s
gratitude. Eaton, however, did not take the hint, but reviewed his
exploits at considerable length before launching into the now familiar
story of Burr’s advances to him in the prospect of interesting him
in the expedition. It had appeared in print so many times that the
majority of those present knew the essential details.

When General Eaton at last finished his testimony, cross-examination
by the defense was brief and to the point. He was asked if he had not
long had a claim against the Government for repayment of the expenses
allegedly incurred by him on his Tripoli expedition. He replied that
such was the case. And was not the claim for $10,000? Eaton replied
that it was. And had it been paid? Yes. When had it been paid? In March
last!

What the defense brought out in those few short questions was that,
after years of refusal, the Congress that was in the hands of the
friends of President Jefferson at last had honored General Eaton’s
claim. And it had done so just when General Eaton’s testimony gave
every indication of being essential to the conviction of Aaron Burr.

That was all the defense wanted. It let General Eaton go. Less
than a fortnight before Eaton’s appearance in court as a witness
Blennerhassett wrote in his diary: “The once redoubted Eaton has
dwindled down in the eyes of this sarcastic town into a ridiculous
mountebank, strutting about the streets under a tremendous hat, with
a Turkish sash over colored clothes when he is not tippling in the
taverns.” That perhaps was a fair expression of the attitude at least
of the better people of the town toward this spurious general.

What a contrast to Eaton the next witness presented! In the prevailing
atmosphere of suspicion and distrust of actions and motives and
testimony, Thomas Truxtun stood forth as the embodiment of truth
and honor. Yet no man of his time had less reason to be loyal to
the Administration in Washington or more cause to resent the shabby
treatment he had received from its hands. His personal circumstances
were just the sort that Burr so often undertook to make capital of in
the pursuit of his own questionable designs.

Truxtun had had a distinguished career in the United States Navy,
advancing to the rank of commodore. In the quasi-war with France he
had commanded the U.S. Frigate _Constellation_ in its two victorious
battles with the French frigates _L’Insurgente_ and _La Vengeance_.
His professional skill was so well recognized that in 1802 he was
chosen to command a squadron which had been fitted out for the war with
Tripoli. As the squadron was about to put to sea Truxtun requested that
a captain be appointed to command his flagship. It was a reasonable
request in keeping with naval custom. But President Jefferson at that
time entertained little enthusiasm for the Navy, which he regarded as a
symbol of imperialism clashing with his democratic principles. So the
Administration refused the request.

Commodore Truxtun, feeling that he had been indifferently treated,
wrote an indignant letter of protest to Washington. It may have been
too strongly worded and impolitic, yet Truxtun’s fine record was
deserving of some consideration. But the authorities were annoyed and
interpreted the letter as an offer of resignation, which it was not.
Acting on this assumption the Administration accepted a resignation
which had not been offered, and in so doing lost a capable officer
while it opened itself up to a charge of base ingratitude toward a
deserving public servant.

Under the circumstances there was nothing for the Commodore to do but
retire to his farm in New Jersey, his outstanding professional career
having been brought to an abrupt end, and to brood over the injustice
that he had every reason to believe had been done him. He was on his
farm in the summer of 1803 when Burr, having fought his duel with
Hamilton, found it expedient to get away from New York. He and Truxtun
were friends and Burr, on his way south, spent a night under Truxtun’s
roof.

None of these past circumstances concerned Thomas Truxtun as he raised
his right hand and solemnly swore to tell “the truth, the whole truth,
and nothing but the truth.”

During the winter of 1805–06, the Commodore began, he saw much of
his friend Burr, who in their conversations frequently mentioned a
speculation in western lands. He spoke also of opening a canal or
building a bridge on the Ohio River. But Truxtun made it clear that he
was not interested.

The topic of conversation then turned to the Government. According to
Truxtun, Burr urged him to get the Navy out of his head, declaring it
would dwindle to nothing. Finally, some time in July of 1806, Truxtun
recalled, Burr told him he wished to see him unwedded from the Navy of
the United States and to think no more of “those men at Washington.”
Burr, according to the Commodore, said he wanted to “see” or “make”
him an admiral. Truxtun was not sure of the expression used. Burr then
disclosed that he contemplated an expedition to Mexico in the event of
a war between the United States and Spain. He asked if Truxtun would
take command of a naval force in this undertaking. Truxtun said he
inquired whether the Chief Executive of the United States was a party
to or concerned in the project. When Burr answered emphatically that he
was not, Truxtun replied that in that case he would have nothing to do
with it.

Burr, according to Truxtun, confided to him that, in the event of a
war with Spain, he proposed to establish an independent government
in Mexico, that General Wilkinson of the Army and many officers of
the Navy would join him. Truxtun remarked that he did not see how an
officer of the United States could join. To this Burr replied that
Wilkinson had first projected the expedition and that he, Burr, had
matured it. He added that many greater than Wilkinson would take part,
and thousands to the westward.

Truxtun testified further that Burr told him that, if there were no
war with Spain, he intended to invite friends to settle on a piece
of land on the Washita River for which he was about to complete a
contract. Burr estimated that within a year he would have 1,000
families of respectable and fashionable people there.

Such in substance was Commodore Truxtun’s testimony. It was worth all
the rest, for it was so patently honest that nobody questioned it.

When he had finished Burr inquired of him: “Did you ever hear me
express any intention or sentiment respecting a division of the Union?”

“We were very intimate,” Truxtun answered. “There seemed to be no
reserve on your part. I never heard you speak of a division of the
Union.”

Burr could not have asked for better testimony from one of his own
witnesses. It must have erased from the minds of the jury whatever
unfavorable conclusions had been reached as a result of Eaton’s
insistence that division of the Union was Burr’s aim. On the other hand
the more astute among them may have made allowances for Burr’s habit
of saying to each individual just so much as he felt that individual
should know.

When Commodore Truxtun had stepped down from the witness stand the
prosecution called Peter Taylor, the Blennerhassetts’ English gardener.
He was a simple country man of limited education, in striking contrast
to the distinguished naval officer who preceded him. In introducing him
Mr. Hay explained that the witness would directly prove the connection
between Burr and Blennerhassett. It appears, too, that the prosecution
counted on Taylor as one of the two witnesses to the overt act which
the Constitution required to prove guilt of treason.

Taylor’s testimony began with the events on the island immediately
after receipt of the President’s proclamation informing the public
of the existence of a plot and cautioning all loyal citizens to
have nothing to do with it. Mr. Blennerhassett and Mr. Alston, said
Taylor, had gone down the river to join Colonel Burr. On reading the
proclamation the people in the vicinity of the island had become
alarmed and Mrs. Blennerhassett sent Taylor in search of her husband
and Burr to warn Burr not to return to the island because of the public
outcry against him.

According to Taylor’s story, after going to Chillicothe and Cincinnati,
he caught up with Burr in Lexington, Kentucky. Burr inquired news
of the island to which Taylor replied that he had been sent by Mrs.
Blennerhassett to warn him not to return. Taylor quoted himself as
saying: “If you come up our way the people will shoot you.” He also
testified that he had told the Colonel the people were saying the land
settlement was all a fib and that Burr had something else in view.

After further wandering in Kentucky, Taylor testified that he at
last came up with Blennerhassett and that they set out together on a
return journey to the island. He pictured Blennerhassett as shrouding
himself in mystery and, when people at the inns along the way inquired
Blennerhassett’s name, Taylor was instructed to tell them it was “Tom
Jones.” Blennerhassett also directed Taylor to call him that.

Taylor said Blennerhassett began to inquire for young men who owned
rifles, explaining that he and Burr had bought land and wanted young
men to settle on it. To this Taylor replied that he would like to go
along if he could take his wife and family with him. But, according
to his testimony, Blennerhassett replied that he would have to have
further consultation with Burr on that point.

Then, according to the witness, Blennerhassett paused and after a
moment’s hesitation said: “I will tell you what, Peter, we are going to
take Mexico, one of the finest and richest places in the whole world.”
Taylor went on to say that Blennerhassett told him Burr would be king
of Mexico, and Mrs. Alston, Burr’s daughter, was to be queen when Burr
died.

Taylor said he inquired of Blennerhassett what would happen to the
young men when they found out that the expedition was against Mexico,
after they had signed up to settle the lands. He quoted the latter
as replying: “Oh, by God, I tell you, Peter, every man that will not
conform to order and discipline I will stab; you’ll see how I’ll fix
them.”

The witness said he then remarked to Blennerhassett that people were
spreading the rumor that he wanted to divide the Union. According to
Taylor, Blennerhassett explained that he and Burr could not do that
themselves. All they could do was to tell the people the consequences
of it. Blennerhassett, said Taylor, pointed out that the people in the
western states now paid $400,000 a year to the Government in taxes
and received no benefit from it. What a fine thing it would be if
they could keep the money among themselves on the western side of the
mountains, make locks, build bridges, and cut roads.

The District Attorney now took over the witness. He wanted to know if
Taylor was not on the island at the time of the assembly. On being
answered in the affirmative he asked if the men had guns. Taylor
replied that some of them had and that they went hunting. He could not
give the exact number that were armed. Further questioning brought out
that Taylor did not know whether the weapons were rifles or muskets.
He said the only pistols he saw were Blennerhassett’s. He added that
the men had powder and lead and that some of them were running bullets.
He admitted that at no time had he seen Burr on the island and that he
understood he was not in that part of the country at the time.

With the conclusion of Peter Taylor’s testimony Court adjourned for
the day. There was no doubt that much of this testimony was damaging.
Some of Taylor’s statements of what Blennerhassett said corresponded
with the testimony of other witnesses. For example, Blennerhassett’s
alleged remarks about Burr and himself being unable to divide the Union
but only to point out the advantages of such a division, corresponded
exactly with what John Graham, the Government’s investigator, said
Blennerhassett told him. But could Taylor’s word be trusted on the
matter of the Mexican empire with Burr at its head and Theodosia as his
successor? The more melodramatic the evidence the greater the suspicion
that the witness had been coached before taking the stand, or that such
wild statements were mere figments of his imagination.

When the Court reconvened on the morning of Wednesday, August 19,
the first witness to take the stand was General John Morgan, a sturdy
frontiersman who lived with his father, Colonel George Morgan, and his
brother Tom on an estate appropriately named Morganza, a few miles from
Pittsburgh.

General Morgan, having been sworn, testified that some time in August
of 1806, his father received a letter signed by Aaron Burr stating that
he and Colonel de Pestre would like to dine with them the following
day. His father, said General Morgan, asked his two sons to meet
Colonel Burr on the road and this they did about seven miles distant
from Morganza.

After a few words of general conversation, continued the witness,
Colonel Burr observed that the Union could not possibly last and that
a separation of the states must ensue as a natural consequence in four
or five years. General Morgan went on to say that, at his father’s
table during dinner, Colonel Burr again observed that the separation of
the Union must inevitably take place in less than five years. To this
General Morgan said his father exclaimed “God forbid!” General Morgan
testified further that Burr observed that with 200 men he could drive
the President and Congress into the Potomac, and that with 400 or 500
he could take possession of the city of New York.

After dinner, said the General, Burr walked with the two brothers for
about a mile. In the course of this airing he asked if either of them
had a military turn, surely a surprising question to ask a man bearing
the title of General! Morgan’s testimony ended with an account of a
farewell ride with Burr to the town of Washington, about ten miles
distant, during which Burr made further inquiries about the local
militia.

On cross-examination by Colonel Burr, General Morgan admitted that the
letter from Burr to Morgan’s father followed one from the elder Morgan
to Burr inviting him to Morganza, so that the meeting between Burr and
the Morgans had not after all been initiated by Burr.

General Morgan was followed on the witness stand by his father who
confirmed in substance the evidence presented by his son. He explained
further that he had enjoyed a long acquaintance with Burr and had
received many civilities from him. In fact, said Colonel Morgan, when
Burr was being persecuted after his duel with Hamilton he had invited
Burr to stay with him at Morganza.

Colonel Morgan considered Burr’s conversation at dinner so
reprehensible that he informed his neighbors, General Neville and
Judges Tilghman and Roberts. It was they, he said, who wrote a joint
letter of warning to President Jefferson.

General Morgan was recalled to the stand by Burr just long enough to
be asked what state of mind his father was in when General Neville and
Judge Tilghman visited him. General Morgan replied that his father had
recently had a fall which had done him considerable injury. Colonel
Burr wanted to know if General Morgan had not made an apology to Judge
Tilghman for the state of his father’s mind. But the only admission
Burr could wring from the witness was that he had said his father was
old and infirm and, like other old men, told long stories and was apt
to forget his repetitions.

Thomas Morgan, the General’s younger brother, on taking the stand
quoted Colonel Burr as having said that under the existing government
there was no encouragement for talents; that John Randolph of Roanoke
had declared on the floor of the Congress that men of talents were
dangerous to the Government. He said Burr next asked him whether he,
who at the time was studying law, would be interested in a military
enterprise. And, said Tom, when he replied that it depended entirely on
the object, Burr explained: “I wish you were on your way with me.”

The testimony now returned to the Blennerhassett household. The next
witness was Jacob Allbright, a stolid Dutchman who, like Peter Taylor,
had been in the employ of the Blennerhassetts. He testified that he had
been invited to go on the expedition and that he also had been offered
a dollar a head for any volunteers he could get from the Dutch colony
in New Lancaster, Ohio, from which he came.

But Allbright’s most important testimony had to do with the appearance
on the scene of the assemblage of Brig. Gen. Edward Tupper, of the
Ohio militia, for on it depended proof of the use of force which might
be construed as levying war. According to Allbright, General Tupper
laid his hand on Blennerhassett and at the same time declared: “Your
body is in my hands, in the name of the Commonwealth.” Then, continued
the witness, seven or eight muskets were leveled at him at which Tupper
protested, “Gentlemen, I hope you will not do the like.”

To this, said Allbright, one of the men who was about two yards away
replied, “I’d as lieve as not.” This threat, Allbright testified,
changed Tupper’s attitude and he wished Blennerhassett good luck.
Allbright’s testimony was as close to showing an act of violence as
that of any of the witnesses.

Recognizing the seriousness of the charge Burr questioned the witness
at length in an effort to show that Allbright’s testimony had been
different on an earlier occasion and, as he expressed it, “to degrade
the witness by invalidating his credibility.”

Mrs. Blennerhassett, in Natchez, expressed herself as being shocked
when she learned of the testimony of their former servants. In a letter
to her husband she set forth in strong words her opinion of Peter
Taylor and his responsibility for her husband’s indictment. “Gracious
God!” she exclaimed, “confined in a prison in the dog days, and by the
perjury of a wretch not many degrees from a brute!”

Next came the testimony of one Peter Love, still another of
Blennerhassett’s retainers, a man who had volunteered for the
expedition. He placed the number of persons assembled on the island
at between twenty and twenty-five. He mentioned men with rifles, two
braces of pistols, and a dirk belonging to Blennerhassett. But he
weakened the charge of armed force by testifying that General Tupper
and Blennerhassett had parted “in the greatest friendship,” or so he
understood from others. Nor was he of much help to the prosecution
when, in reply to a question, he said it was his understanding the
expedition’s purpose was the settlement of the Washita lands.

On being asked by Mr. Parker, a juror, if he had seen any bullets
run, Love replied that he had, but he could not say how many. “I was
a servant in the house,” explained Love, “but could not mind my own
business and other people’s too.”

Next to be heard was Dudley Woodbridge, Blennerhassett’s business
partner and a man of parts. They operated together under the firm name
of Dudley Woodbridge & Company. He testified that in September, 1806,
Blennerhassett had called on him with Colonel Burr at the company’s
counting house in Marietta. There, said Woodbridge, Blennerhassett told
him Burr wished to buy a quantity of provisions.

The Colonel, said Woodbridge, then inquired the price of provisions and
the cost of boats best calculated to carry the provisions up and down
the river. Burr left with him a memorandum of the provisions wanted and
also put in an order for the boats to be built. The latter were to be
of the Schenectady model such as were used on the Mohawk River.

The witness described Burr ordering provisions which included pork,
flour, whiskey, bacon, and kiln-dried meal, but the only thing actually
purchased was the pork. The boats, said Woodbridge, were built on the
Muskingum River about seven miles above Marietta. Only eleven of the
fifteen ordered were completed. He then went on to tell about their
seizure by the Ohio militia following publication of the President’s
proclamation. He also told of being on the island the night of December
10, but added nothing new to what other witnesses had testified as to
the happenings there.

Then, under the direction of Mr. Hay and with the consent of the Court,
Woodbridge proceeded to recount the circumstances leading up to the
assembly on the island. Late in August or early in September, he said,
Blennerhassett mentioned to him that he had embarked on an enterprise
with Colonel Burr; that General Eaton and others were engaged in it and
that the prospects were flattering. From Blennerhassett’s statements
Woodbridge inferred that the object was Mexico, though he admitted that
that was not positively stated.

Blennerhassett, said Woodbridge, asked him if he had a disposition
to join but he replied that he preferred his present situation to the
uncertainties of such an expedition.

“You know Mr. Blennerhassett well,” remarked Colonel Burr in commencing
the cross-examination. “Was it not ridiculous for him to be engaged in
a military enterprise? How far can he distinguish a man from a horse?
Ten steps?”

“He is very nearsighted,” agreed Woodbridge, “and cannot know you
from any of us at the distance you are now from one another. He knows
nothing of military affairs. I never understood that he was a military
man.”

“Is he esteemed a man of vigorous talent?” interposed Mr. Wirt.

“He is,” replied Woodbridge, “and a man of literature.” Then he
delivered his estimate of his partner’s limitations: “But it was
mentioned among the people in the country that he had every kind of
sense but common sense; at least he had a reputation of having more of
other than of common sense.”

To the question: “What were his favorite pursuits?” Woodbridge
mentioned “chemistry and music.”

Here Court adjourned for the day. When it convened on the following
morning three more eye-witnesses of the events on Blennerhassett Island
were heard. Simeon Poole, who was not on the island itself but on
the mainland opposite it, saw what looked to him like sentinels and
heard what sounded like a watchword. Maurice P. Belknap was on the
island and saw men cleaning rifles. He contradicted Poole’s testimony
by stating that though he was a stranger he had been admitted to the
island without being challenged and having to give a watchword. Edmund
P. Dane, too, was permitted on the island to wander at will about the
Blennerhassett mansion. Though he was a total stranger he said nobody
appeared to be greatly alarmed.

The sum total of the evidence suggested that if this were levying war
against the United States it was a very tepid manifestation of it.

Meanwhile Colonel Burr and his counsel were chafing over the direction
the testimony was taking. At last they could restrain themselves no
longer. The evidence that was being heard they protested was collateral
evidence. They insisted that the prosecution be made without further
delay to produce all the testimony they had relating to overt acts.

Counsel for the prosecution on the other hand maintained that it was
unusual, irregular, and improper thus to restrict the testimony. The
whole evidence, they contended, should be submitted to the jury whose
province it was to decide whether there had been war or not.

Judge Marshall interposed to say there was no doubt the Court must
hear the objections to the admissibility of evidence. Mr. Wickham
urged the gentlemen of the prosecution to introduce if they could any
more testimony they might have pertaining to what they deemed to be
the overt acts. Mr. Hay objected to this course of procedure. But, he
agreed, if the gentlemen of the defense were determined to make their
motion they might proceed.

That motion, proffered by Mr. Wickham, was that until an overt act had
been proved all other evidence was collateral, and therefore irrelevant
and inadmissible.

Since apparently the Government’s witnesses to the alleged overt
acts on Blennerhassett Island on the night of December 10, 1806, had
been exhausted, if the motion of the defense were sustained no more
witnesses could be heard. The practical effect of this would be that,
of some 140 witnesses assembled by the Government, only the handful
who had already appeared on the witness stand would be permitted to
give their testimony. If the Chief Justice were to rule in favor of the
motion of the defense it was tantamount to his taking from the jury the
privilege of deciding what testimony was relevant and arrogating it to
himself.

Therefore if the motion were sustained and, subsequently, Colonel
Burr acquitted, it took no exceptional prescience to foresee that the
enemies of Judge Marshall could charge that Burr’s acquittal resulted
from the fact that the Chief Justice had suppressed the Government’s
evidence. In refusing to commit Burr for treason the Chief Justice had
then declared that the Government had not produced sufficient evidence.
So the Government had gone out into the highways and byways and come up
with more than a hundred witnesses, which in all conscience should have
been enough to convict Aaron Burr of anything. And now, if the Chief
Justice granted the defense’s motion, he would put himself on record as
refusing to admit the testimony of the witnesses that the Government
had so zealously gathered together in Richmond.

No question about it--the Chief Justice found himself in a tight spot.




_Chapter_ XV


It is not every day that a lawyer has a Vice-President of the United
States as his client. And subsequent history has shown that it is
exceptional indeed for a lawyer to have the privilege and honor of
exercising his talents to save a Vice-President of the United States
from the gallows. As John Wickham rose to defend his motion, with his
shrewd sense of values, he could not have failed to be aware that this
was the greatest moment in his career.

Obviously counsel for the defense were not surprised when the Chief
Justice granted Mr. Wickham the right to make the motion. As learned in
the law as the gentleman was known to be, he could not have made the
finished argument he did without long and careful preparation.

He approached his task with an air of confidence derived from his
acknowledged leadership at the Virginia bar and the many victories to
his credit, a number of them over the plodding Hay. This confidence was
fostered by his realization of the great difficulty of sustaining any
charge of treason under the Constitution of the United States and of
the weakness of the evidence in this particular case. Suave, refined,
and elegant, he was the envy of his less distinguished legal brethren.

The weather had turned hot again but neither Mr. Wickham nor his
colleagues were to let themselves be discouraged by so trifling a
matter, or to shorten their arguments so much as a sentence in order to
save themselves exertion.

In introducing his case, Mr. Wickham proceeded at once to scotch the
suggestion put forward by the prosecution that the motion to disqualify
witnesses had been presented because the defense wished to suppress
evidence. On the contrary, said his lawyer, the prisoner was more than
willing that everything should be disclosed. But, the speaker pointed
out, there was a practical difficulty resulting from the great number
of witnesses the Government had summoned. If, he said, all of the 140
were examined, not only weeks but months would elapse, and throughout
it all his client would be under confinement just as though he had been
found guilty and was serving a sentence.

Having dealt with that matter to his satisfaction Mr. Wickham
next directed his attention to the most obvious weakness in the
prosecution’s case. That was its admission that when the alleged overt
act had taken place on Blennerhassett Island Colonel Burr was many
miles away.

To refresh the minds of the jury, he quoted from Article III, Section 3
of the Constitution which deals with treason against the United States
and lays down that it “shall consist only in levying war against them,
or in adhering to their enemies, giving them aid and comfort” and adds
the safeguard that “No person shall be convicted of treason unless on
the testimony of two witnesses to the same overt act, or on confession
in open court.”

To Mr. Wickham’s way of thinking the language of the Constitution
made it abundantly clear that no person in the United States could be
convicted of treason in levying war who was not personally present at
the commission of the act.

And what was the prosecution doing? It was resorting to artificial
rules of construction so that the words of the United States
Constitution would be made to take an artificial meaning based on the
statute law and common law of England. Mr. Wickham denied emphatically
that the statute and common law of England could properly be applied
to the Constitution of the United States. Mr. Wickham would go even
farther than that. He would assert that no rule which holds a person
guilty of treason who is absent from the scene of the overt act had
ever practically obtained even in England.

Oh yes, Mr. Wickham, master of precedent that he was, knew that
there were instances in English history which might be cited by the
prosecution. But he had a remedy for that. He would mention them
himself before the prosecution had a chance to do so. So he frankly
admitted that Lord Coke, eminent English jurist and legal authority,
and other writers after him, had laid down that there are no
accessories in treason either before or after the fact, but that all
are principals.

However, said Mr. Wickham, in spite of the principle declared by the
authorities, no actual adjudications bear them out except that in the
case of Sir Nicholas Throgmorton in the reign of Bloody Mary.

Mr. Wickham was well aware that there was not a lawyer of any standing
at the Virginia bar who was not conversant with the account of the
Throgmorton case as presented by Judge St. George Tucker in his
appendix to _4th Blackstone’s Commentaries_. Throgmorton had been
charged with imagining the Queen’s death. At his trial the doctrine of
constructive treason was insisted on by the prosecution and sanctioned
by the judges. When Throgmorton requested that the law books be
consulted the court told him none might be brought in, that they knew
the law sufficiently without a book. And when the jury brought in a
verdict of not guilty contrary to the wishes of the judges, the court
committed them all to prison and fined them heavily.

But, said Mr. Wickham, the court on that occasion was so contrary, not
only to the rules of law and justice, but even to those of decency,
that he persuaded himself counsel on the other side would not rely on
it as authority.

Mr. Wickham, intimating that he had made a diligent and exhaustive
search of all the authorities, declared that he could find no case in
English law where a person who was not present at the scene of the
overt act had been convicted or even brought to trial, except that of
Mary Speke, in the fourth year of the reign of King James II, at the
time of Monmouth’s Rebellion. But that, Mr. Wickham made clear, was
when the spirit of persecution was high. He thought it probable that it
was one of the cases decided by the execrable Judge Jefferies at the
Bloody Assizes.

Mr. Wickham agreed that in England there was a treason for compassing
the death of the King where the mere agreement to do the act itself
constitutes the crime. He thanked God that in this country there was
no subject to whom such a law applied and that the United States
Constitution strictly forbade that intention alone--which was so liable
to be misunderstood and misrepresented--should in any case be construed
into treason.

He cited also the cases of Mrs. Elizabeth Gaunt, an Anabaptist who was
burned alive, and Lady Lisle, widow of a regicide, as persons convicted
as accessories merely for receiving traitors. But in both instances,
he emphasized, sentence had been passed by the wicked Judge Jefferies.
After Mr. Wickham had thus associated these possible precedents with
such outrageous circumstances the prosecution would be daring indeed to
use them.

Having warmed to his task, Mr. Wickham proceeded to give his audience
an impressive demonstration of his legal erudition. He referred to
Foster’s _Crown Law_ and from that skipped to Hume’s _History of
England_. He quoted passages from Tremaine’s _Pleas of the Crown_ and
boldly plowed his way through Hale, Stanford, Brooke, and Hawkins. He
alluded to the conduct of the Duke of Cumberland after the Battle of
Culloden, and made mention of Flora Macdonald who had helped with the
escape of the Pretender. Surely, asserted Mr. Wickham, she would have
been charged with treason if the doctrine that persons absent and not
in arms had prevailed in England!

From citing the authorities in English, Mr. Wickham turned to Latin
declaring that “_Dixit quod in hoc quod factume est proditio, non
potest esse accessarius felonice et proditire non potest esse
accessarius_.” Not content with Latin he lapsed into some strange
tongue that must have confused Mr. Robertson, the reporter, in spite
of his knowledge of five languages. But Mr. Robertson did his best
and set it down thus: “_Nota P. Hussey C.I. que accessory ne poet este
a treason; le recetment de traitor, ne poet este tantum felony, mes
est treason_.” Mr. Wickham’s was a brilliant display of erudition.
Perhaps the passage quoted was as familiar to his fellow lawyers as the
golden bird of prey on the sign in front of the “Eagle Tavern.” One
wonders what the jury made of the gentleman’s scholarship and in which
direction they were swayed.

Again Mr. Wickham repeated the strict definition of treason as set down
in the Constitution--the levying of war against the United States,
the overt act and the two witnesses. Its object, he said, was clear.
It was to perpetuate the liberties of the people of this country. The
framers of the instrument well knew the dreadful punishments inflicted
and the grievous oppressions produced by constructive treason in
other countries. That is why their language was plain, simple, and
perspicuous.

Mr. Wickham demanded of opposing counsel what security would be
afforded by the Constitution to the best or meanest man in the country
if the construction on which they insisted was correct. If it was
correct then all that was wanted to fix the guilt of treason on an
individual was to have an insurrection existing somewhere in the United
States, no matter where.

Now, he said, suppose the Government should wish to destroy any
man. They find him in Georgia, and the insurrection happens in New
Hampshire. This would suffice for the purpose. But if their cause was
to go on the prosecution would have to contend that even less would
suffice to create treason, that even an insurrection was not necessary,
but that a peaceable assemblage going down the Ohio River would be
sufficient for their purpose.

Continuing to expound his hypothetical case Mr. Wickham suggested
that under the prosecution’s construction a man might be seized and
hurried by force from New Hampshire to Georgia, or to any part of the
United States which his accusers might choose as best for the purpose.
Obviously he had reversed the journey of his client from Alabama to
Virginia. It would be in vain for him to prove that he was not present
when the offense of which he was accused was committed, that he never
at any period of his life had been there, that the actors and the scene
were alike unknown to him. Wretches who from interest or revenge were
ready to further the views of his oppressors, would present themselves
and he might be convicted of levying open war against the Government
with people whom he never saw and at a place where he never was!

The hour was now growing late and Mr. Wickham had talked the better
part of the day. His argument might have proved tedious to his audience
composed entirely of men. Surely a little ribald humor was in order
after all the heavy reasoning he had forced them to endure. So, casting
aside his dignity, Mr. Wickham gave it to them.

He noted that by an act of Parliament in the reign of Henry VIII, it
was made treason for any woman the king should marry, thinking her to
be a true maid, or virgin, to marry him if she were not so.

Now, ventured the speaker, the paramour of such a woman (Mr. Wickham
supposed her to be a maid of honor and he a lord of the bedchamber)
might aid her in imposing on the king. She is tried, found guilty, and
executed. How would her lover be charged? Would he be indicted by the
name A. B., Gentleman, or by his title of Lord, for marrying the king,
not being an unspotted virgin or, to use the language of the act, “a
pure and clean maid”?

“This,” concluded Mr. Wickham, “may seem to be treating the subject
with more levity than I could wish to do, but the argument directly
applies ... for it is as much a physical impossibility that Colonel
Burr should be at Blennerhassett’s Island and in Kentucky (places
several hundred miles distant) at the same time, as that an individual
should be at the same time a man and a woman.”

Shortly thereafter the court adjourned for the day. No doubt those
who had been present retired to their taverns for a spot of brandy
and laughed over Mr. Wickham’s merry argument about the maid of honor
and the lord of the bedchamber who was made to marry the king in the
indictment. No doubt there were some instances where the quick-witted
had to repeat the argument and help the slow-witted to see the point of
the joke.

Of Richmond’s public establishments for food, refreshment, and shelter
for the night none--including even The Eagle--surpassed the Swan
Tavern. Standing on Broad Street that separated the Capitol Square
and its public buildings from the stylish residential quarter of
Shockoe Hill, identified by a sign bearing a white swan on a pale
blue background, it was largely favored by the judges of the Court of
Appeals and legislators of high rank. Its proprietor, Col. John Moss,
was a man of great natural dignity enhanced by starched linen. The
Colonel had the reputation for setting an excellent table over which he
presided in person. His ham was always prime, his fresh meats the best
the market could afford. If any criticism was heard it was only that
Colonel Moss was “a nice calculator who aimed to give his guests just
enough but no more.” But if his food was the best he ought not to be
condemned for seeing that none of it was wasted.

Also reflecting the Swan’s high standards were its wine cellar and
its bar. The former was stocked, as the popular expression of the day
defined quality, with “the best London Particular.” The bar was a
favorite place of assemblage for the lawyers after a hard day in court.
It was presided over by one Lovell, a droll fellow whose wit was as dry
as his wines and spirits.

It was perhaps not entirely accidental that the house which Colonel
Burr was sharing with Luther Martin was situated close to the Swan
and its bar. There, when he was not otherwise engaged, Mr. Martin was
likely to be found.

On retiring to the Martin house between sessions the Colonel often
found Theodosia and little Aaron there. Theo was exercising a careful
supervision over the housekeeping and the house was becoming a popular
meeting place for Burr sympathizers. Many noticed and remarked that,
in spite of his years, old Martin was beginning to exhibit a romantic
attachment for Theodosia.

To Blennerhassett, under lock and key at the penitentiary and alone,
Burr wrote apologetically: “I am surrounded by visitors, which
prevents me from adding more than the assurance of my respect and
attachment.”

One emissary between the two accused reported to Blennerhassett that
“Burr lives in great style and sees much company within his gratings,
where it is as difficult to get an audience as if he were really an
emperor.” Another described Burr as being “as cheerful as ever. But as
a jockey might restore his fame in the course, after he had injured it
on a tight rope, so perhaps the little ‘Emperor’ at Cole’s Creek, may
be forgotten in the attorney at Richmond.”

Blennerhassett’s use of the word “Emperor” as applied to Burr is
peculiarly reminiscent of the language Peter Taylor attributed to him
on their journey back to the island from Kentucky in the fall of 1806.

The heat was oppressing Blennerhassett again. “I find it very
agreeable,” he wrote in his diary, “to get upon a chair by which I am
enabled to raise my mouth to the lower tier of openings in the gratings
of the windows and breathe another air for half an hour.”

When Court convened next day Mr. Wickham took up the question of what
constituted an overt act of levying war, which must be proved before
the guilt of treason can attach to the principal.

Here the Chief Justice interrupted to inquire if any adjudged case
could be produced where the court was called upon to decide, and did
decide, that the evidence submitted to the jury did or did not amount
to proof of overt act. Mr. Hay broke in to say that he never knew
the attempt to be made but once. That was before Judge Patterson,
of the Supreme Court, and it had been unsuccessful. Mr. Wickham,
notwithstanding, insisted that, “It is the right and duty of the court
to instruct the jury what amounts in law to an overt act of levying
war.” That was an important point and more was to be heard of it. Mr.
Wickham concluded his argument with a satiric peroration of which Mr.
Hay was the butt: “But what did the gentleman say in defining the
‘levying of war’? That there is no necessity for arms, nor for the
employment of force! That there is no necessity even for potential
force to effect the intended purpose by terror! That there is no
necessity for the act to be public! That an overt act of treason may be
committed without arms, without force, either actual or potential. If
this were the law there would be no safety!”

In the time allotted to him Mr. Wickham had fairly well covered the
English precedents touching on the case and exhibited other evidences
of his profound legal knowledge. Had the poet Tom Moore been present
he would have had even more tangible reason than enjoying the gracious
hospitality of the gentleman’s house for saying that Mr. Wickham could
hold his own in any court.

At this point Mr. Hay surprised the Court and the defense by announcing
that he had two more witnesses to the alleged overt act whom he had
somehow overlooked. One was Israel Miller who had come down from
Pittsburgh with Comfort Tyler’s party. The other was Purley Howe, an
Ohioan, who had made forty boat poles for Blennerhassett and, on the
fateful evening of December 10, had come to the Ohio bank of the river
to deliver them. The two witnesses added little to the testimony that
already had been given. Miller made an estimate of men and arms and
Howe testified to having seen two sentinels armed with rifles on the
flatboat that came to the Ohio bank to pick up the boat poles.

The burden of the defense was now assumed by the ponderous Edmund
Randolph. As befitted an elder statesman he announced that his duty as
counsel to Mr. Burr was fortified by something more important, namely
his duty as a citizen to combat and, if possible, refute the pernicious
doctrine of constructive treason. He quoted Montesquieu to the effect
that, “If the doctrine of treason be undeterminate in any country,
however free its form of government, it is sufficient to make it
degenerate into tyranny.”

In his zeal to protect his fellow man the gentleman was so bold as to
lecture the Chief Justice. He adverted to Judge Marshall’s embarrassing
statement in the case of Bollman and Swartwout that to be guilty of
treason a person need not be present at the scene of the alleged overt
act. Mr. Randolph said he could not bring himself to believe that the
Supreme Court meant to uphold constructive treason. He contended that
even if the language of Judge Marshall in his capacity as Chief Justice
had been explicit and imperious, nevertheless the same Judge Marshall
as the presiding officer in the subordinate court ought not to conform
to it.

Realizing that this was rather a large order Mr. Randolph hastened to
add, “I do not, I dare not, ask you to rebel nor prescribe what you
should do. But let us pray Heaven to stay the arm of the destroying
angel!”

Having thus adjured the Chief Justice, Mr. Randolph cited the opinions
of the American justices--Patterson, Iredell, and Chase--claiming that
they showed that an assemblage without force could not be regarded as
treason. He agreed with his fellow counsel, Mr. Wickham, that such a
contention was repugnant as well to the English doctrine. “Foster,
Hale, Hawkins, Coke, Kelynge, Reeves and all other writers,” he
asserted, “you will find concur in proving that not a single indictment
for treason in levying war has ever been carried into complete effect
in England without actual force.” Mr. Hay interrupted to explain that
he had only meant to say that the provisions of the Constitution ought
to be construed according to the principle of common sense.

Mr. Randolph pricked up his ears at the words “common sense.” With the
ferocity of a tiger attacking its helpless prey he sprang upon the poor
District Attorney.

“Common sense,” he sneered. “Common sense, it seems, creates an
accessory and introduces him as a principal, contrary to the
Constitution. Common sense does not say, like the Constitution,
that treason consists in levying war, but brings in a new person to
participate in the guilt and punishment of treason. This common sense
extends, instead of restraining, the rigor of capital punishment. This
common sense is oppression and tyranny. I pray Heaven to save us from
the deductions of such common sense as this!”

Mr. Randolph next complained of the vagueness of the indictment. The
accused, he charged, must shape his defense to what does not appear.
The laws of this country called on him to defend himself, but they had
not apprised him against what. He must, lamented Mr. Randolph, sit
down and conjecture what the charge was. And where, he asked, was the
accused to obtain the information? Was he to write to the President, or
to the Federal Judge, or to the public prosecutor?

In his little essay on “Common Sense” Mr. Randolph mentioned its having
created an accessory and introduced him as a principal. He now returned
to that theme, contending that before anybody else could be tried,
the principal in the case had first to be convicted. If, he argued,
the previous conviction of the principal was not necessary, then the
Government could bide its time until the death of the principal so that
the accessory might thus be deprived of the main chance of disproving
his offense and thereby be unjustly oppressed. This seemingly profound
reasoning was the defense’s subtle means of insinuating that if there
had actually been an overt act the principal in it was not Burr, who
was many miles away, but Harman Blennerhassett who was actually present
at the scene.

The arguments of Mr. Wickham and Mr. Randolph completed for the time
being the presentation of the defense’s side of the case. It now came
the turn of the prosecution. But Mr. Hay pleaded for time. He called
Judge Marshall’s attention to the fact that it was then Friday and
expressed the hope that further discussion of the motion made by the
defense could be postponed until Monday. That, he said, would give the
prosecution time to reflect on the matter.

Mr. Wickham, Mr. Martin and Mr. Botts at once joined forces in
protesting so long a postponement. But Mr. Hay and Mr. Wirt held
out stoutly for a delay. An argument, they said, which had occupied
two whole days in the delivery before the Court must have required
considerable labor and reflection to arrange and digest. It was, they
contended, unreasonable therefore to suppose that such an elaborate
argument could be fully comprehended and an answer prepared in a single
day.

Mr. Wirt observed that five or six gentlemen of great professional
experience were united in the defense. He suggested that the motion
might be regarded as a mere _ruse de guerre_ which they have sprung on
counsel for the United States as from an ambuscade. More vital still,
he reminded that if the motion were to succeed there would be an end of
the case.

Judge Marshall, impressed by the arguments of counsel for the
prosecution, removed any possible charge of favoritism to the defense
on such an important issue by granting Mr. Hay’s request. Argument was
forthwith postponed until the following Monday.

Nevertheless the Court did meet briefly on Saturday. It was for the
purpose of arraigning Mr. Blennerhassett, who up until now had been
present at the sessions in a somewhat anomalous capacity. So he was
asked to stand while the indictment for treason was read to him. Here
Mr. Botts interrupted the proceedings to call attention to the fact
that there was a misnomer in the indictment and he had not had a chance
to consult with his associates on the subject. He asked that the
arraignment therefore be postponed. The request was granted by the ever
obliging Chief Justice.

The two attorneys for the defense had made it emphatic in their
arguments that the fundamental issue was whether treason as strictly
defined in the Constitution was to prevail, or whether the broader and
vaguer principle of constructive treason was to be admitted. If the
definition of treason as laid down in the Constitution were followed to
the letter the chances were good that Aaron Burr would go free.

But had not the President of the United States openly declared him
guilty? Did not half the people in the United States believe him so,
condemning him on the sensational evidence that had been spread by the
public press? Was the evidence of General Eaton and Commodore Truxtun
and of the lesser witnesses to be dismissed? Mr. Hay had alluded to
common sense. Mr. Randolph had sneered. But the prosecution had not yet
been heard.




_Chapter_ XVI


On the day following the postponement of his arraignment Harman
Blennerhassett received an important visitor in his quarters in the
penitentiary. He was William Duane, formerly a partner of Benjamin
Franklin and Edward Bache in the publication of the _Aurora_. Duane was
now the fiery editor of that newspaper which he had made into an organ
of the Jeffersonian administration.

Duane expressed great sympathy for Blennerhassett. He told him
his friends were making a scapegoat of him. Then, according to
Blennerhassett, Duane tried to lure him into a confession of having
written certain papers then in the hands of the prosecution. But the
chief purpose of his visit was to try to persuade Blennerhassett to
betray Burr.

This Blennerhassett steadfastly refused to do. And that was strange
since he was himself convinced that, as Duane charged, he had been made
a scapegoat. Less than a week after Duane’s visit he posted in his
diary: “You were right, therefore, honest Hay, on observing the other
day to Woodbridge while expressing your concern for my situation ‘that
I must now think Burr has duped me,’ but you were wrong in supposing I
am indebted to you for that discovery; I am possessed of it these nine
months.”

Burr, who had his informants everywhere, was immediately apprised of
Duane’s visit and lost no time getting word to Blennerhassett to be on
his guard against spies who came to him under the mask of friendship.
This precaution was unnecessary. Whatever Blennerhassett may have
confided in his diary he was always completely disarmed when he came
into the presence of Burr, and even when they were apart he seemed
still to feel Burr’s influence.

Blennerhassett’s determination not to turn state’s evidence against
the man who had duped him after pretending to be his friend has been
attributed to the mildness of his temper or lack of courage. Perhaps
each was a factor. However, Blennerhassett was not a bright man. His
romance with his niece is evidence of an impetuosity that led him to
act without counting the cost. From the time of their first meeting
Burr had courted him assiduously, protesting that his vegetating on
the island was a fraud on society and holding out brilliant prospects.
Blennerhassett would have been easy prey for an even less skillful
flatterer. What chance did he have with a man who had duped some of the
best minds in the country and once through oratory alone had provoked
the Senate of the United States to adoration and tears?

When Court convened on Monday morning MacRae opened for the prosecution
and proceeded to live up to his reputation for wielding a meat axe. He
was not the least restrained by the consciousness that his remarks were
being made in the presence of, and only a few feet away from, Aaron
Burr.

The prisoner, he charged, had with unexampled dexterity contrived from
the very beginning to quit his situation as the accused. Instead of
Aaron Burr defending himself he was found taking the high ground of
public accuser and assailing others.

Mr. MacRae charged that Wilkinson, whom he called “the savior of his
country,” and who had prevented the execution of this detestable
plot, had incurred the hatred and resentment of the prisoner and his
associates in proportion as he deserved well of his fellow citizens.
Let others question General Wilkinson’s integrity. Mr. MacRae would not
do so, at least not in open court. In MacRae’s language Wilkinson was
“the patriotic and meritorious officer (like those who opposed and
overthrew Cataline, the Roman conspirator) who defeated this daring
scheme against American liberty.” He would not be forgiven by the
conspirators.

“If he [Burr] be innocent and pure as the child unborn,” sneered Mr.
MacRae, “if he knew nothing of the transaction, why is it that this
motion is made to exclude the evidence?”

What though the prisoner was not on Blennerhassett Island when the
overt act was committed? The speaker contended that nevertheless he was
guilty if anybody was guilty.

“Is there,” he asked, “any human being who having heard the evidence of
General Eaton ... the evidence of the Messrs. Morgan and the evidence
of the witnesses who speak of the overt act on the island, especially
Jacob Allbright and Peter Taylor, who can doubt his guilt?”

Mr. MacRae professed he could not see why it should be necessary for
Colonel Burr to be on the island if he enlisted the men, and sent them
to the place, and acted himself in another place. Nor would he bring
up the cases of Lady Lisle and Elizabeth Gaunt who had been mentioned
by Mr. Wickham. Why should he? These women were accessories after the
fact. But Mr. Burr had never been regarded as an accessory. He was the
first mover of the plot; he planned it; he matured it; he contrived the
doing of the overt acts which others did. Burr, charged MacRae, was the
alpha and omega of this treasonable scheme, the very body and soul, the
very life of this treason!

So, observed Mr. MacRae, Mr. Wickham had said the prosecution must
prove that the accused was personally present. “No, Sir,” he objected,
“it is necessary to prove that some act laid has been committed....
If the law pronounce that he is liable for the acts of his agents,
and if the fact be that his agents by his commands and at his request
committed the act, where is the necessity of producing proof that he
was on the spot himself?”

Counsel for defense had complained of construction. “Our construction
we think correct,” said Mr. MacRae, “because it is calculated to secure
the rights of the citizen and to render the government permanent;
whereas if the construction of the gentlemen on the other side be
correct, the government cannot be permanent. Let them have the power of
ubiquity. The conspirators will always contrive to avail themselves of
this plea that they were not present.”

Mr. MacRae turned to the Old Testament to support his argument. He
used the story of David and Uriah to illustrate it, confident that it
was well known to all the members of the jury in an age when everybody
read the Bible. David, he recalled, placed Uriah in the front of the
battle in opposition to a very powerful opponent in order that he might
be slain and that David might afterwards take his wife. If people
were asked who killed Uriah, David or the antagonist by whose sword
Uriah fell, the answer of all would be that--having placed him in the
front of the battle in a place of the greatest danger, in immediate
opposition to a man of great strength and power, with the intention
that he should be killed--David killed him.

The speaker now applied the principle to the case before the court: “We
suppose the prisoner, by himself and agents, to have been acting at or
about the same time at Beaver, Kentucky, and Blennerhassett’s Island.
We suppose that the prisoner enlisted men before he came to Beaver and
at it. We suppose that afterwards his men proceeded by his orders to
Blennerhassett’s Island and were there increasing their numbers by more
enlistments and providing the means of transporting his troops down
the river towards the scene of his expedition, while he was himself
enlisting more men in Kentucky and making arrangements preparatory to
his meeting and assuming the command of the whole at the mouth of the
Cumberland; and that in fact, pursuant to this plan of operations, he
did meet and take the command of all the conspirators at the latter
place.”

Were there precedents in the law to sustain this argument? Mr. MacRae
cited the case mentioned in Hale’s _Pleas of the Crown_ of the Lord
Dacre and divers others who came to steal deer in the park of one
Pelham. Rayden, one of the company, killed the keeper of the park, the
Lord Dacre and the rest of the company being in other parts of the
park. Yet it was held that it was murder in them all and they died for
it. And, said Mr. MacRae, there was American authority, too. He cited
Dallas’s _Reports_ and the case of the United States against Mitchell
in the Whiskey Rebellion in which Judge Patterson’s charge to the jury
showed that a man did not have to be present at the overt act.

Mr. MacRae then took his fling at the Chief Justice’s opinion in the
Bollman and Swartwout case. So the defense considered that it was not a
regular, solemn opinion? That it was not delivered on a point depending
before the judges, but extrajudicial and therefore not authority? Why,
declared Mr. MacRae, the language was so explicit and pointed that it
could not possibly be misunderstood!

“I consider it as completely proved by the opinion,” he continued, “...
that if an unlawful assemblage of men meet together for a treasonable
purpose, it is not necessary that arms should be in the hands of those
who are concerned, in order to make them traitors. I have imagined
that their meeting together in this manner (in military array) would
be sufficient to show that their purpose was treasonable.” The speaker
considered also that the reason of East on the subject was conclusive
where, among other things, he held that “any assembly of persons met
for a treasonable purpose, armed and arrayed in a warlike manner, is
_bellum levatum_, though not _percussum_!”

On that note MacRae ended his argument. “_Bellum levatum_, though
not _percussum_”--that theme with variations was to get exhaustive
treatment from the next speaker. But the court had heard enough for one
day.

When, on the morning of the 25th, the bailiff called for order, the
dashing 34-year-old William Wirt entered the lists as champion for
the prosecution. Critics of the Administration complained bitterly of
President Jefferson using the public money to employ private counsel
when there were official prosecutors on the payroll for the purpose of
performing that particular task. But the President felt he could not
leave so great a responsibility to the plodding Hay, especially after
the defense had assembled such a dazzling array of counsel. On this
hot August morning the time had come for Wirt to prove to the public
that the fee he would receive from the Government was well earned.

Wirt was faced with a dilemma. At this phase of his career his chief
asset was a natural flow of words that was surpassed only by that
of James Wilkinson. While eloquence might be counted on to sway a
jury its effect on the Chief Justice was highly problematical. Judge
Marshall’s style was logical and free from embellishments. He also had
a keen sense of the ridiculous. Thus, as Wirt warmed to his task and
instinctively soared to rhetorical heights, he found himself being
rudely brought down to earth out of anxiety over what mischievous
thoughts lay behind the solemn countenance of the Chief Justice.

The speaker commenced his dissertation by undertaking to clear himself
of personal malice toward the accused. The humanity and justice of the
nation, he observed, would revolt at the idea of a prosecution pushed
on against a life which stood protected by the laws.

“I would not,” he declared, “plant a thorn, to rankle for life in my
heart by opening my lips in support of a prosecution which I felt and
believed to be unjust.”

Mr. Wirt noted that the gentlemen of the defense appeared to feel a
very extraordinary and unreasonable degree of sensibility on this
occasion. They seemed to forget the nature of the charge and that
he and his colleagues were the prosecutors. But the lawyers of the
prosecution did not stand there to pronounce a panegyric on the
prisoner. They were there to urge on him the crime of treason against
his country!

The lawyers of the prosecution, Mr. Wirt warned, were not going to
mince matters. When they spoke of treason they must call it treason.
When they spoke of a traitor they must call him a traitor. When they
spoke of a plot to dismember the Union, to undermine the liberties of
a great portion of the people of this country and subject them to a
usurper and a despot, they were obliged to use the terms that conveyed
those ideas.

Why, then, were the gentlemen of the defense so sensitive? Why on those
occasions so necessary, so unavoidable, did they shrink back with so
much agony of nerve, as if instead of being in a hall of justice they
were in a drawing room with Colonel Burr and were barbarously violating
towards him every principle of decorum and humanity?

The speaker then proceeded to deal facetiously with Wickham’s
erudition. The latter, he reminded, had invited them to consider the
subject abstractly. But would there not be danger in that? While they
were mooting points, pursuing ingenious hypotheses, chasing elementary
principles over the wide extended plains and Alpine heights of
abstracted law, was there not danger that they would lose sight of the
great question before the Court?

The motion before the Court, Mr. Wirt agreed, was a bold and original
stroke in the noble science of defense. It marked the genius and
hand of a master. For, said he, it gave the prisoner every possible
advantage. Yet at the same time it cut off from the prosecution all the
evidence which went to connect the prisoner with the assemblage on the
island, to explain the destination and objects of the assemblage, and
to stamp beyond controversy the character of treason upon it.

If, asked Mr. Wirt, the views of the prisoner were, as they had been so
often represented by one of his counsel, highly honorable to himself
and glorious to his country, why not permit the evidence to disclose
those views?

“No, Sir,” he protested, “it is not squeamish modesty. It is no
fastidious delicacy that prompts these repeated efforts to keep back
the evidence. It is apprehension! It is alarm! It is fear, or rather
the certainty, that the evidence whenever it shall come forward will
fix the charge.”

And now Mr. Wirt, with the instinct of a good showman, was reminded
that he was speaking to an audience of men and must season his
discourse with a little spice. “I will not,” he asserted, “follow the
example which he [Mr. Wickham] has set me on a very recent occasion....
I will not, like him, in reply to an argument as naked as a sleeping
Venus--but certainly not half so beautiful--complain of the painful
necessity I am under, in the weakness and decrepitude of logical vigor,
of lifting first this flounce and then that furbelow, before I can
reach the wished for point of attack.” Mr. Wirt’s metaphor must at
least have provoked smiles from the audience, if not downright laughter.

On the contrary, said Mr. Wirt, he would endeavor to meet the
gentleman’s propositions in their full force and to answer them fairly.
He would not, as Mr. Wickham had done, as he was advancing toward them
with his mind’s eye, measure the height, breadth and power of the
proposition; if he found it beyond his strength, halve it; if it still
was beyond his strength, quarter it; if still necessary, subdivide
it into eighths; and when, by this process, he had reduced it to the
proper standard, take one of those sections and toss it with an air of
elephantine strength and superiority.

Mr. Wirt would not, in commenting on the gentleman’s authorities,
thank the gentleman with sarcastic politeness for introducing them,
declare that they conclude directly against him, read just so much
of the authority as serves the purpose of that declaration, omitting
that which contained the true point of the case which was made against
him. Nor, if forced by a direct call to read that part also, would he
content himself with running over it as rapidly and inarticulately as
he could, throw down the book with a theatrical air and exclaim “Just
as I said,” when he knew it was just as he had not said.

Having thus performed this little exercise in satire at Mr. Wickham’s
expense, Mr. Wirt got down to the case in point. He noted that Mr.
Wickham had read the Constitutional definition of treason and given the
rule by which it was to be interpreted. After he had done that it would
have been natural for him to proceed directly to apply that rule to the
definition and give the result.

But no. Even while they had their eyes on the gentleman he vanished
like a spirit from American ground and was seen no more until he
turned up in England, “resurging by a kind of intellectual magic in
the middle of the 16th century, complaining most dolefully of my Lord
Coke’s bowels.”

“Before we follow him in this excursion,” proposed the speaker, “it may
be well to inquire what it was that induced him to leave the regular
track of his argument. I will tell you what it was. It was, Sir, the
decision of the Supreme Court in the case of Bollman and Swartwout....
Sir, if the gentleman had believed this decision to be favorable to
him, we should have heard of it in the beginning of his argument.”

And so the prosecution was back again, lunging at the chink in the
defense’s armor which the Chief Justice, in one rare moment of careless
workmanship, had left there.

What said the Supreme Court? Mr. Wirt read the offending passage: “...
if a body of men be assembled, for the purpose of affecting by force
a treasonable purpose, all those who perform any part, however minute
or _however remote from the scene of action_, and who are actually
leaguered in the general conspiracy, are to be considered as traitors.”

The constant reiteration of his error must have brought a blush to the
tanned cheek of the Chief Justice. Or had constant repetition by now
rendered him immune to embarrassment?

Counsel for the defense, said Mr. Wirt, had taken the bold and
difficult ground that the passage which he had read was extrajudicial,
a mere _obiter dictum_. They were, he insisted, mistaken. It was a
direct adjudication of a point immediately before the Court.

The speaker referred to the fact that Judge Marshall had been asked
by the defense to disregard the Bollman-Swartwout decision. But, he
asked, how could an inferior court control the decision of the superior
court? If the Chief Justice, sitting as a circuit court, had the right
to disregard the rule decided by the Supreme Court and to adopt a
different rule, then every other inferior court had a right to do the
same. Then there would be as many various rules as to treason as there
were courts. The result, Mr. Wirt insisted, might be--and certainly
would be--that what would be treason in one circuit would not be
treason in another, and a man might be hanged in Pennsylvania for an
act against the United States, of which he would be perfectly innocent
in Virginia.

And, continued Mr. Wirt, if treason requires the actual presence at the
scene of the assemblage, how easy it would be for the principal traitor
to avoid this guilt and escape punishment forever. He might go into
distant states and from one state to another. He might secretly wander,
like a demon of darkness, from one end of the continent to the other.
He might enter into the confidence of the simple and unsuspecting. He
might pour his poison into the minds of those who were before innocent.
He might seduce them into love of his person, offer them advantages,
pretend that his measures were honorable and beneficial, connect them
in his plot and attach them to his glory.

Mr. Wirt’s hypothetical case was beginning to show a striking
resemblance to what Aaron Burr was charged with having done. And he was
not yet through. This imaginary man might prepare the whole mechanism
of the stupendous and destructive engine and put it in motion. Let
the rest be done by his agents. He might then go a hundred miles from
the scene of action. Let him but keep himself from the scene of the
assemblage and the immediate site of battle and he would be innocent in
law, while those whom he had deluded would suffer the death of traitors!

“Who,” he asked, “is the most guilty of treason? The poor, weak,
deluded instruments, or the artful and ambitious man who corrupted and
misled them? There is no comparison between his guilt and theirs. And
yet you secure impunity to him, while they are to suffer death! Is
this according to the rule of reason?” Here Mr. Wirt launched forth on
a lengthy dissertation on the subject of principals and accessories
before and after the fact that did credit to his familiarity with legal
precepts and the dicta of the authorities both in this country and in
England.

And now the speaker poised himself for the supreme effort, while a hush
of anticipation fell over the assemblage.

“Who is Blennerhassett?” he inquired in his melodious voice. “A native
of Ireland, a man of letters, who fled from the storms of his own
country to find quiet in ours. His history shows that war is not the
natural element of his mind. If it had been, he never would have
exchanged Ireland for America. So far is an army from furnishing the
society natural and proper to Mr. Blennerhassett’s character that, on
his arrival in America, he retired even from the population of the
Atlantic States and sought quiet and solitude in the bosom of our
western forests.”

Let the Chief Justice be secretly amused. Mr. Wirt was not going to
deny himself the superb opportunity of holding his audience spellbound
with his oratorical gifts. “But he carried with him taste and science
and wealth; and lo, the desert smiled!

“Possessing himself of a beautiful island in the Ohio, he rears upon it
a palace and decorates it with every romantic embellishment of fancy.
A shrubbery that Shenstone might have envied, blooms around him! An
extensive library spreads its treasures before him. A philosophical
apparatus offers to him all the secrets and mysteries of nature. Peace,
tranquillity and innocence shed their mingled delights around him.

“And to crown the enchantment of the scene, a wife, who is said to be
lovely even beyond her sex and graced with every accomplishment that
can render it irresistible, had blessed him with her love and made him
the father of several children. The evidence would convince you that
this is but a faint picture of the real life.”

The speaker’s countenance changed from joy to distress and his voice
assumed a solemn tone. “In the midst of all this peace, this innocent
simplicity and this tranquillity; this feast of the mind, this pure
banquet of the heart, the destroyer comes. He comes to change this
paradise into a hell. Yet the flowers do not wither at his approach. No
monitory shuddering through the bosom of their unfortunate possessor
warns him of the ruin that is coming upon him.

“A stranger presents himself. Introduced to their civilities by the
high rank which he had lately held in this country, he soon finds his
way to their hearts, by the dignity and elegance of his demeanor, the
light and beauty of his conversation and the seductive and fascinating
power of his address. The conquest was not difficult. Innocence is
ever simple and credulous. Conscious of no design itself, it suspects
none in others. It wears no guard before its breast. Every door and
portal and avenue of the heart is thrown open, and all who choose it
enter.

“Such was the state of Eden when the serpent entered its bowers. The
prisoner, in a more engaging form, winding himself into the open and
unpracticed heart of the unfortunate Blennerhassett, found but little
difficulty in changing the native character of that heart and the
objects of its affection. By degrees he infuses into it the poison of
his own ambition. He breathes into it the fire of his own courage;
a daring and desperate thirst for glory; an ardor panting for great
enterprises, for all the storm and bustle and hurricane of life.

“In a short time the whole man is changed, and every object of his
former delight is relinquished. No more he enjoys the tranquil scene.
It has become flat and insipid to his taste. His books are abandoned.
His retort and crucible are thrown aside. His shrubbery blooms and
breathes its fragrance upon the air in vain; he likes it not. His
ear no longer drinks in the rich melody of music; it longs for the
trumpet’s clangor and the cannon’s roar. Even the prattle of babes,
once so sweet, no longer affects him; and the angel smile of his wife
which hitherto touched his bosom with ecstasy so unspeakable, is now
unseen and unfelt.

“Greater objects have taken possession of his soul. His imagination has
been dazzled by visions of diadems, of stars and garters and titles of
nobility. He has been taught to burn with restless emulation at the
names of great heroes and conquerors. His enchanted island is destined
soon to relapse into a wilderness; and in a few months we find the
beautiful and tender partner of his bosom, whom he lately permitted not
the winds of summer ‘to visit too roughly,’ we find her shivering at
midnight, on the winter banks of the Ohio and mingling her tears with
the torrents that froze as they fell.

“Yet this unfortunate man, thus deluded from his interest and his
happiness, thus seduced from the paths of innocence and peace; thus
confounded in the toils that were deliberately spread for him, and
overwhelmed by the mastering spirit and genius of another--this
man, thus ruined and undone and made to play a subordinate part in
this grand drama of guilt and treason--this man is to be called the
principal offender, while he, by whom he was plunged into misery, is
comparatively innocent, a mere accessory. Is this reason? Is it law? Is
it humanity? Sir, neither the human heart nor the human understanding
will bear a perversion so monstrous and so absurd! So shocking to the
soul! So revolting to the reason!”

Thus ended Wirt’s classic accusation of Burr. The time remaining to
the speaker was devoted to a prosaic discussion of _bellum levatum_ as
distinguished from _bellum percussum_. Gentlemen on the other side,
said Mr. Wirt, asked for battles, bloody battles, hard knocks, the
noise of cannon. But there was none. There did not have to be. The
Constitution said “levying war,” not “making war.” He had recourse to
his dictionary to show that the word “levy” means “to raise.” So there
needed to be no force. The word force was used figuratively merely to
signify the assembled body and not any deed of violence.

Nevertheless, if the defense insisted upon force, did not the
assemblage on Blennerhassett Island exert a species of potential
force on the surrounding country? Did not Comfort Tyler and his party
put that country into a state of consternation? What urged the state
government of Ohio to send a body of men to take that party and seize
its boats? What induced the State Legislature to deliberate with closed
doors? What caused the militia of Wood County, Virginia, to be put in
motion and marched to the island? The speaker traced the wave of alarm
as it moved from the island southward all the way to New Orleans.

The day was almost spent when, with a sigh of weariness, Mr. Wirt
announced that he had finished what he had to say. He begged pardon for
consuming the time of the Court so long. He thanked it for its patience
and polite attention. He pleaded that he was much too exhausted to
recapitulate his argument. But to such a Court as that of the Chief
Justice’s he was sure that was unnecessary.

After his masterly effort Mr. Wirt would not have been human had he
not felt a glow of satisfaction over his performance. Even those on
the other side must have conceded that he had more than earned his
fee. All that came after the portrayal of the relationship between
Blennerhassett and Burr was anticlimax. That passage, duly recorded
by Mr. Robertson, found its way into books of elocution and became
one of the most popular pieces of literature to memorize and declaim.
The Chief Justice was kind enough to remark that he had been greatly
impressed by the speaker’s eloquence. What effect it had on the members
of the jury for whose consumption it was chiefly intended only they
could say, and they left behind them no record of their reactions.

There was also the effect on the prisoner whose misdeeds had been so
vividly described. The Colonel sat through it all calmly, but with his
alert mind he took in every word of it. It is said that in later years
he entertained himself and his friends by reciting the more florid
passages and that his performance seldom failed to be rewarded with
peals of derisive laughter.




_Chapter_ XVII


Wirt’s argument had consumed the better part of the day, but there
still was a little time left before the regular hour for adjournment.
Two of the lawyers for the prosecution having held the floor in
succession it was again the turn of the defense.

Of Colonel Burr’s lawyers none was better equipped by temperament to
counterbalance William Wirt than was Benjamin Botts. He, too, could
boast the vigor and abandon of youth. In fact he was the youngest of
all the array of legal talent which had been attracted to the case.
He was distinguished for his wit and he was a master of ridicule, for
which Mr. Wirt’s florid oratory made an excellent target. As Wirt had
set out after Wickham in his opening remarks, so young Botts turned his
guns on Wirt.

“I cannot promise you, Sir, a speech manufactured out of tropes
and figures,” he began with mock apology. Then, alluding to Wirt’s
reference to “an argument as naked as a sleeping Venus,” he continued:
“Instead of the introduction of a sleeping Venus, with all the luxury
of voluptuous and wanton nakedness to charm the reason through the
refined medium of sensuality, and to convince us that the law of
treason is with the Prosecution by leading our imaginations to the
fascinating richness and symmetry of a heaving bosom and luscious
waist, I am compelled to plod heavily and meekly on through the dull
doctrines of Hale and Foster.” Mr. Botts, too, was not without skill
in playing up to the gross humor of an all-male audience.

“So far though from reproving the gentleman’s excitement of the boiling
blood of such of us as are in the heyday of youth, without the previous
caution of clearing the hall of those whose once panting desires have
been chilled by age, and upon whom the forced ecstasy sat unnaturally
and uneasy, I only lament my utter incapacity to elicit topics of legal
science by an imitation of so novel and tempting an example. Nothing
but the impossibility of success would prevent me also from grasping
at the fame and glory on this grave occasion, and at this time of
pleasure, of enriching the leering lasciviousness of a like bewildering
thought to transport anew the old and the young.”

In such manner Mr. Botts soon put the assemblage in good humor. Even
the Chief Justice, who enjoyed a joke as much as the next man, must
have joined in the fun. Having thus ingratiated himself with his
audience by this gay introduction he proceeded to present his serious
argument. His first proposition he told them would be to endeavor to
establish the fact in support of the motion that the acts proved to
have taken place on Blennerhassett Island were not in themselves acts
of war and that no intention could make them acts of war.

What had actually happened? According to Mr. Botts about thirty men had
landed on the island and remained there for two or three days. It is
true, they had some arms and ammunition. They guarded their property at
the boats. They prepared provisions to take with them down the river.
At a place contiguous to the island it was admitted they had killed
some squirrels. As notable a circumstance as any in this overt act was
that they had had what one of the witnesses called “a watchword.” All
but Blennerhassett and Tyler were confessedly ignorant of the plan.
They got alarmed on hearing the report of a mob and fled secretly in
the night after Comfort Tyler had declared his purpose not to resist
constituted authorities.

Now, said Mr. Botts, the proposition of the opposing side was that
these were acts of war, that they were intended first against the
people of Wood County, Virginia, in which the island was situated, and
then against New Orleans.

He would suppose first that the acts were against Wood County. Very
well, then, the boats, the oars, the provisions for a long journey, the
after-descent of the river were overt acts of levying war against Wood
County.

“But, Sir, the party was armed!” he exclaimed, imitating the manner
of the prosecution. Why? Mr. Botts contended that it showed they were
expecting the people of Wood County would attack them. In other words
Mr. Botts apprehended that the people of Wood County meditated war on
the people of the island, not that the islanders meditated war against
the people of Wood County.

Then, continued Mr. Botts, it was found that the people of the island
had fled silently in the night from those of Wood County. And because
they fled, it seems they were guilty of acts of war!

On the other hand, said Mr. Botts, pursuing his argument, “if the war
was not against Wood County it was against New Orleans. And New Orleans
was 2200 miles away!”

In the same playful mood, Mr. Botts suggested that the defendant
might claim that these persons had no arms, or if they had guns that
they were not long enough to shoot all the way from the island to New
Orleans. He presumed that the reply the prosecution would make to that
was that no arms were necessary, that they might make war with their
fingers. Or the defendant might urge that persons in this country have
a right to carry arms, that it is also conformable to usage for people
going down the river to kill ducks and other such game.

“The prosecutor,” Mr. Botts presumed, “would answer that arms are not
necessary; that they had three or four guns, a little powder and shot
even to kill fowls and ten or twelve boats; that it was a most bloody
war indeed; that without arms it would be war, but with these arms it
was a most dangerous war against the United States!”

If this was making war against the United States, declared Mr. Botts,
then “If I run away and hide to avoid a beating, I am guilty and may
be convicted of assault and battery!” Here Mr. Botts suggested the
propriety of adjourning.

When Court met next morning and Mr. Botts resumed his argument he was
in the same facetious mood. Once more he went back to the charge of
levying war and recalled the failure of the grand juries in Mississippi
and Kentucky to indict.

“The Mississippi Territory and Kentucky, as we are informed, were
the seat of war,” he observed. “But the simpletons of that State and
Territory hunted but could not find the war. They were so stupid as not
to perceive in a collection of men without arms, without any possible
means of annoyance, without any hostile disposition and without
the possibility of getting away their women and families, anything
criminal, much less any aptitude to overturn two mighty empires.

“It remained for us, the proud members of the Virginia bar, to come out
and astonish the world with the profundity of our learning in matters
of war. They have ascertained that there was a terrible war. I ask you
what manner of war was it? We have had a much more serious war here
than on the island. We have had here a carnage of breaths, sour looks
and hard words and the roaring of vocal cannon. We have had a battle
with the laws and the Constitution fought courageously and furiously by
our enemy.

“Is it not a mockery to speak of the war on Blennerhassett’s Island?
Shall we not be the sport of Europe and the world by such a discussion?”

In spite of the nation’s independence, which it now had enjoyed for a
matter of more than thirty years, the Virginia bar still did obeisance
to that of England. Though Burke had died in 1797 and Charles James
Fox and the younger Pitt had gone to join their fathers within the
year, counsel in the Burr case transferred their veneration to their
successors in Westminster. They seemed to have imagined fatuously that
this spirit of camaraderie was reciprocated and that the great men of
England had temporarily put aside the affairs of empire to follow every
move being made by opposing counsel in the hall of the Virginia House
of Delegates in Richmond.

Now, continued Mr. Botts, Mr. Hay had said that constructive treason
in this country would not be dangerous. Mr. Botts would suppose
an imaginary case. He would suppose there had been well-grounded
apprehension of an approaching war with a neighboring and powerful
nation. He would suppose that the United States had a feeble army in
the neighborhood of the boundary line between the two countries, and
that the American general had orders to fall back. Mr. Botts, be it
noted, was as good at making hypothetical cases for the defense as was
Mr. Wirt for the prosecution.

He would suppose that the populous rich city of New Orleans was in
danger of invasion. He would suppose that a hero distinguished for
military science and valor and as patriotic as he was ambitious of
honorable fame--but whose good name was blighted and blasted by the
malice of his countrymen--should have seen the dangers hanging over his
country: New Orleans threatened with invasion and conquest by a Spanish
force, the citizens there in danger of murder and captivity, their
wives and daughters ready to be a prey to Spanish lust, and all else in
that favored country exposed to desolation.

He would suppose that the hero knew that a band of faithful patriots
could be collected immediately around his standard. He would suppose
that with this band of patriots the hero should at this fortunate and
critical moment have rescued the country, the army, the people, by
a reasonable relief to the decrepit and half baffled forces of the
United States. He would suppose that in the same magnanimous spirit the
hero should after this have gone on his enterprise to establish the
independence of the Mexicans and give liberty to millions now groaning
under bondage.

Suppose he had done all this: he would have acquired immortal glory and
be renowned in future ages as the deliverer of his country, worshiped
as its idol and called its savior as Washington was.

Thus Mr. Botts artfully contrived to present the character of Aaron
Burr as his defenders chose to imagine it. The defense scored the
prosecution for trying to introduce constructive treason into the
United States. It did not object to introducing constructive heroism,
provided the hero was Colonel Burr. The Colonel laughed at William
Wirt’s extravagant language. Is it not possible that he stifled a
cynical smile as he heard himself thus being glorified by young Botts?

Mr. Botts’s supposing ended, he next described in heart-rending
language the manner in which the well-meaning and patriotic Colonel had
been basely betrayed and thwarted. In what some might have considered
not too good taste he recalled that Christ himself had been abused,
mocked, and spit upon. Why then should not a mere mortal man be in like
manner abused?

The young champion next raised his lance against the President of the
United States. He charged that Mr. Jefferson’s interference with the
prosecution of the case was improper, illegal, and unconstitutional.
He had no doubt, he said, that the President had acted from good
intentions, without sufficiently reflecting on the subject, and that
he was inadvertently following one of the very worst English examples
in the most arbitrary reigns. He wished Mr. Jefferson could be at his
side now to hear what could be said on the subject. Young Mr. Botts was
sufficiently sure of his powers of persuasion to believe that under
those circumstances Mr. Jefferson would be convinced that he had done
wrong.

Then Mr. Botts came to his concluding peroration. “We are told,” he
said, “that the virtue of the people will do everything; that the voice
of the people must be heard and must decide where they are sovereign;
that the voice of the people is the voice of God; and that a majority
of the people must always do right....

“I hope the gentlemen ... will not refer the fate of individuals
accused to the sudden and violent impulse of their feelings and
passions.... There are cases where individuals have been sacrificed
by the voice of the people. Socrates was made to drink the hemlock,
and Aristides was banished by the people.... Admiral Byng was made
to die for the same cause. Jefferson was run down in the year 1780
by the voice of the people.” Mr. Botts’s reference here was to the
unpopularity of Mr. Jefferson during the Revolution when he was
Governor of Virginia and the state was invaded by the British and
complaints of Mr. Jefferson’s ineffectiveness in meeting the crisis
raised murmurs for his impeachment.

After that Mr. Botts was back again appealing to Holy Writ to drive
home his point: “Reformation and Christianity itself prove the general
errors subject to pervade the people. Jesus Christ himself was
crucified by the people.”

On this sacred note Mr. Botts closed his discourse. He had proved
himself to be as entertaining as any of his elder brethren of the bar.

The industrious Mr. Robertson rendered yeoman service in recording
the lengthy and often tedious proceedings. Even he was beginning to
tire. He concluded it was not necessary to set down all that was
said. Instead he contented himself with making the entry, “here some
facetious and pleasant remarks passed between Mr. Botts and Mr. MacRae;
which afforded amusement for the moment, but are omitted as irrelevant
to the report.” Irrelevant? Who knows but that if Mr. Robertson had
recorded the facetious and pleasant remarks that Mr. MacRae made in his
exchange with Mr. Botts, Mr. MacRae might have been spared the ignominy
of going down to posterity as a sour Scotsman.

Soon after there appeared the entry: “Here a desultory conversation
ensued between Mr. Botts and Mr. Wirt in which some warm and animated
observations were made respecting the evidence, and Mr. Wirt’s comments
thereon.” Had Mr. Botts’s ridicule got under Mr. Wirt’s skin? At this
point the Chief Justice poured oil on the troubled waters by remarking
that the evidence was such that different gentlemen might draw
different inferences from it.

After Botts came the District Attorney’s turn again. “I cannot,” he
confessed with his customary modesty, “instruct you by my learning,
amuse you by my wit, make you laugh by my drollery nor delight you with
my eloquence. All I can do is to express to you in plain language the
convictions perhaps of a mistaken judgment.” Here was no mock humility,
but the sincere outpouring of a spirit oppressed by the knowledge
that among his colleagues of the Richmond bar he was labeled as a
mediocrity. Hay would have been even duller of wit than public opinion
made him out to be if he had not noted the special consideration
assigned to such of his contemporaries as Wickham, Botts, and Wirt.
He could have consoled himself with the reflection that in such an
assemblage humility was a rare and welcome virtue.

Mr. Hay had no sooner fairly begun on his discourse than he made an
allusion to Justice Samuel Chase and his conduct in the Fries case
in which he had strained the law to convict for the Government. The
censure the judge brought on himself, observed Mr. Hay, was not on
account of his opinions but for his arbitrary and irregular conduct at
the trial. Chase, he reminded, attempted to wrest the decision from
the jury and prejudge the case before hearing all the evidence in it.
It was, said Mr. Hay, the identical thing this Court was being called
on to do by the gentlemen of the defense. At this the gentlemen of the
defense pricked up their ears. Mr. Hay was to hear from them later.

The remark about Justice Chase was preliminary to a dissertation on
the institution of trial by jury. “If,” Hay averred, “it ever shall
be determined by this Court that it has it in its power to take the
decision of facts from the jury, the trial by jury, one of the greatest
bulwarks of civil liberty, may be struck down and destroyed.”

The great question at issue in this case, he said, was compounded of
law and of fact, of which latter the jury were the judges. Therefore
every allegation which related to the indictment, all the evidence
relating to and bearing on the issue, ought to be brought forward and
heard by the jury. The prosecution held that Colonel Burr was guilty of
levying war against the United States. Colonel Burr said he was not.
The evidence the defense sought to exclude bore directly on the point
at issue. Mr. Hay expressed himself as positive the framers of the
Constitution never intended to take the decision of the general issue
in a criminal case away from the consideration of the jury and give it
to the judge.

The speaker paused for an impressive moment and then, selecting his
words with care, addressed the bench: “I consider this principle of
the trial by jury, preserved in its uttermost purity and independence,
as connected with the best principles of the human heart. It ought to
be viewed and approached with the utmost reverence and caution; and
when a judge is called to do what may lead him to encroach on this
principle, he will advance with the utmost circumspection and awe. I
will take the liberty to say that it will be far more safe and correct
to remain a thousand miles on this side of the line which separates
the rights of the Jury from those of the Court, than to go a hair’s
breadth beyond it; and if he should encroach he ought for no human
consideration to touch it. If ever he do, he undermines civil liberty.”
That short dissertation on trial by jury must have made some of those
present wonder if they had misjudged when they wrote George Hay off as
a mediocrity.

The District Attorney returned to the old question of whether actual
presence of the accused at the scene of the overt act was necessary to
sustain a charge of treason. Suppose, he said, Colonel Burr had never
been on the spot where the overt act was committed. Suppose he knew his
men were there and about to be attacked. Suppose he sent more men there
to help them, along with arms, ammunition, and provisions and all other
things necessary for their defense. Suppose an attack was made and
repelled and thousands fell in the battle. Would it be contended by the
gentlemen of the defense that Aaron Burr, not having been personally
present when this overt act of his procurement was committed, was not
a principal but an accessory? That his soldiers were principals in
treason, but he was not? To prove the fallacy Mr. Hay proposed that
they look at the result. He is innocent and safe. They are guilty and
punished.

“Is it possible,” he asked, “that the human mind can be so perplexed
by learning and so misled by ingenuity, so totally bereaved of all its
powers, as to adopt a conclusion like this?”

Mr. Hay closed his argument by reverting to Mr. Wickham’s expressed
fear that the doctrine the prosecution asked the Court to sanction
would be fatal to the liberty and happiness of the people of the
United States. He pictured Mr. Wickham trembling for his country,
himself, and his posterity lest the prosecution succeed.

“I too am a citizen of this country,” he declared, “and the father of
children for whose happiness and welfare I feel a solicitude as lively
and affectionate as any parent can feel. To the true happiness of my
country I hope I know that I am sincerely and ardently attached. But
I see no danger. I apprehend none for myself or my posterity. I am
perfectly willing to risk my own life, liberty and happiness, and those
of my posterity on the propriety of the principles which we recommend.
Let them avoid traitorous conspiracies and designs fatal to the liberty
and happiness of their fellow citizens; let them avoid traitorous
assemblies, overt acts of war, and they will be safe.”

Thus concluded Mr. Hay. Next on the list of pleaders was Luther Martin,
but he sent word to the Court that he was not ready. So Mr. Charles
Lee, of the defense, arose to fill the breech. It was one of the rare
occasions when he was recorded as having spoken.

Counsel for the defense had been waiting impatiently for a chance to
pounce on the District Attorney from the moment he brought up Justice
Chase and the Fries case. Now Mr. Lee had that agreeable opportunity.

“The gentleman said in substance there was no difference between the
opinion which we desire you to give and that for which Judge Chase was
impeached,” charged Mr. Lee, addressing the Chief Justice. “It was very
kind of the gentleman to remind the Court of the danger of a decision
of the motion in favor of the prisoner, a decision like that which has
already produced the impeachment of another judge.”

Mr. Lee knew full well he was touching a tender spot. By thus accusing
the District Attorney he was acting on the popular belief among Judge
Marshall’s friends that the Chief Justice was himself as much on trial
as was the prisoner at the bar. Mr. Hay was prompt to do what he could
to counteract that impression.

“The cases are different,” he replied. “What I said was only said to
put Mr. Botts right in his misrepresentation. It was innocently said
and compatible with the highest respect for the Court, not with the
design which the gentleman (I will not say candidly) insinuates.”

Here the Chief Justice intervened. “I did not consider you as making
any personal allusion, but as merely referring to the law,” he assured
Mr. Hay. Thus, with an exhibition of his customary common sense, Judge
Marshall graciously accepted Mr. Hay’s explanation, whatever his
innermost thoughts might have been.

Mr. Lee, however, persisted. “The gentleman plainly insinuated the
possibility of danger to the Court from a favorable opinion to the
prisoner,” he protested, “because he said that the opinion which
we claimed for him was the same in substance as had occasioned the
impeachment of one judge already. It certainly would not be unfair to
infer that it was intended to show that the same cause might again
produce the same effect.”

Colonel Burr’s urgent request that the trial be expedited seemed doomed
to failure. Mr. Lee, having been less long-winded than his colleagues,
completed his argument some time before the hour of adjournment. The
proposal was made to send a messenger to summon Mr. Martin whose
appearance was next on the agenda. But the lawyers of the defense who
were present declined to do so, stating again that Mr. Martin was not
yet ready. The Court therefore adjourned for the day.

It was not until Friday morning, August 28, that Mr. Martin at last
made his entry and rose to address the Court. In speech and appearance
he was coarse and crude. Toward his enemies he could be vindictive,
as he already had shown in the previous proceedings of the trial. His
emotions were as violently stirred in behalf of those he called his
friends. On the other hand no one surpassed him in his knowledge of the
law and in the application of that knowledge to whatever case he might
be pleading.

At the moment Colonel Burr enjoyed his complete loyalty. And since his
introduction to her a few weeks before he had developed a consuming
admiration for Theodosia Alston. Now came the supreme opportunity to
serve them both.

Mr. Martin opened his address with an expression of regret that the
artifices and persecutions of his enemies had placed Colonel Burr in
his present predicament. But, he continued: “I shall ever feel the
sincerest gratitude to Heaven, that my life has been preserved to this
time, and that I am enabled to appear before this Court in his defense.

“And if the efforts of these highly respectable and eminent gentlemen
with whom I have the honor to be associated, united with my feeble aid,
be successful in rescuing a gentleman for whom I with pleasure avow my
friendship and esteem, from the fangs of his persecutors--if our joint
efforts shall be successful in wiping away the tears of filial piety,
in healing the deep wounds inflicted on the breast of the child, by
the envenomed shafts of hatred and malice hurled at the heart of the
father--if our efforts shall succeed in preserving youth, innocence,
elegance and merit from despair, from distraction--it will be to me
the greatest pleasure. What dear delight will my heart enjoy. How
ineffable, how supreme will be my blessing.”

The solicitude of the elderly gentleman for the prisoner’s daughter
was not lost on his audience. The old and kindly disposed no doubt
heard them and were touched. The young and cynical were amused that the
old man’s infatuation for the beautiful young matron was capable of
producing such eloquence. It was one of the current jokes of the town.

However, pursued the speaker, private friendship for the accused and
his connections was not his only inducement. He was as well thankful
to Heaven that when a question as to the right construction of the
principles of treason was to be decided--on which the happiness or
misery of the present and future ages depended--he was to have an
opportunity to exert to the utmost his feeble talents in opposing
principles which he considered so destructive as those advanced on the
present occasion. If he and his colleagues, said Mr. Martin, were able
to satisfy the Court that the principles the reverse of those contended
for on the part of the prosecution ought to be established, he would
think he had not lived in vain.

Mr. Martin took pains to make it clear that neither Colonel Burr nor
his counsel had ever admitted or suggested that Harman Blennerhassett
was guilty of treason. What then was the propriety of Mr. Wirt saying
that they were willing to sacrifice him, and that he might be hanged
without pity or remorse on their part?

Mr. Martin then brought to bear all the wisdom acquired during his
thirty-six years at the bar. He referred to Hale and Hawkins. He
recalled the Statute of 39 Elizabeth Cap. 15, wherein A and B both
consented to enter a house to rob and only A entered and B stood by,
wherefore A was “ousted of his clergy” while B still had it. He cited
the case of Pudsey in 1 Hale 534 to show how it came within the general
principles of the cases of constructive presence as stated in Foster
349.

He, too, mentioned the case of My Lord Dacre who came with a band of
men to steal deer in the park of one Pelham. And he noted that Hawkins,
in his second volume, Chapter 9, section viii, page 442, also explained
very clearly the principle of constructive presence. He admitted that
in Great Britain there was a species of treason which consisted in the
intention without any act consummating the guilt of treason. He meant,
of course, compassing the death of the king when the crime was only
imagined. But in America, since there was no king, there were only two
species of treason, which were levying war against the United States or
adhering to their enemies, giving them aid and comfort.

“Sir,” he exclaimed, “I execrate a contrary doctrine as highly
tyrannical and oppressive. And here I beg leave to enter my censure
against the decisions of the court in Pennsylvania on this subject
in the cases of what are called the Whiskey and the Hot Water
Insurrections.”

Having thus abruptly paid his compliments to the American judges with
whose decisions he differed he went back across the sea to England and
John Wedderbourn’s case and Deacon’s case and that of the king versus
Captain Vaughan, who went aboard a vessel called the _Loyal Clencartie_
in the service of the French king to cruise against the subjects of
the English king. As he expounded the law in this masterly fashion how
could he have failed to bring a blush to the cheek of Mr. Ritchie of
the _Enquirer_ who had used his columns to belittle Luther Martin and
scoff at the absurdity of importing a Maryland lawyer to try a case in
a Virginia court.

It was gossiped that during the preparation for his appearance Mr.
Martin had drunk even more freely than was his usual custom. If so the
indulgence had done nothing to befuddle his brain or dim his memory of
precedents. Next he turned to the incident of Lord Balmerino entering
the gates of Carlisle and holding the city for the Pretender. He cited
other allegedly treasonable acts having to do with the efforts of the
Stuarts to regain their throne. This was a fruitful field for English
precedents for acts of treason. But, he contended, those who had levied
war in Perth were charged with levying it in Perth. So, too, were those
who levied war in Aberdeen charged with levying it in Aberdeen. He
could find no case in which a person was charged with levying war in a
place where he was not present.

“But,” he observed, “if the counsel for the Crown in Great Britain had
found out this new doctrine discovered by the ingenuity of the counsel
for this prosecution, prosecutions would have been easily conducted and
much trouble saved. If this new doctrine be as the gentlemen effect to
believe, unanswerably correct, then it shows incontrovertibly great
ignorance on the part of the lawyers who prosecuted in Great Britain
in encountering so much unnecessary trouble and adopting a mode of
prosecution so difficult as they did, and the superior ingenuity of the
gentlemen in discovering this very easy and plain mode.”

Then Mr. Martin was off after Nicholas Throgmorton, following his case
with allusions to the cases of Alice Lisle and Mary Speke, who were
so despitefully treated by Judge Jefferies of the Bloody Assizes. He
delved into the eighteenth year of the reign of King Edward I to bring
forth the case of Bago de Clare to whose house one John Wallis, a
clerk, brought a letter of citation from the Archbishop of Canterbury,
and some of de Clare’s family forced Wallis to eat the process and wax
seal affixed thereto. And de Clare pleaded that he was not required to
answer the suit brought against him until the principal actors had been
convicted. So he was released on bail to answer after the principals
had been convicted. From which incident, which had happened more than
five centuries before, Mr. Martin sought to prove that in the State of
Virginia in the year of Our Lord 1807, Colonel Burr could not legally
be brought to trial until Harman Blennerhassett had been tried and
convicted. If Mr. Botts’s allusion to the Crucifixion and Mr. MacRae’s
use of Uriah’s death through the connivance of David are excepted, Mr.
Martin deserved the prize for going farthest back into history for a
precedent.

The speaker had occupied the time of the Court for the entire day and
the hour was growing late. When asked if he could finish his argument
that evening he replied that he could not. So the Court was adjourned
until the usual hour on the morrow and judge, jury, learned counsel,
prisoner, witnesses, and spectators drew a sigh of relief and went off
to refresh themselves and enjoy as much of a night’s rest as the hot,
humid atmosphere permitted.

When Court reconvened on Saturday morning, August 29, Mr. Martin
resumed his argument. Here he gave his attention to the opinion in the
case of Bollman and Swartwout. He brought out that when the opinion
was given only four of the seven judges of the Supreme Court were
sitting. Would four judges in an extrajudicial manner have undertaken
to settle the construction of the law so infinitely important to the
United States? Would they have decided so important a question in a
collateral, irregular manner on a point not immediately before them?
And that also without the aid of the other three judges?

Even if they had done so, contended Mr. Martin, their decision
“certainly deserves no credit as binding on this Court. As a binding
judicial opinion it ought to have no more weight than the ballad or
song of Chevy Chase.”

Mr. Martin alluded to Mr. Hay’s statement “with great zeal and pathos,
that he pledged his own and the life of his children and posterity, on
the propriety of the doctrine which he has advocated: that, if they
avoid conspiracies, that if they be innocent, they will be safe.”

“A most delusive doctrine,” he exclaimed. And he warned Mr. Hay: “If
he be now in the full tide of successful experiment, in the enjoyment
of the approbation of his country and his government, so was, not long
ago, the gentleman whom I advocate. He was as highly distinguished by
the kind favor of the people as he could be by their suffrages.

“It was then incredible that their favor should so soon be changed
to calumny and rancor of party into the most malignant hatred. The
gentleman may now think himself perfectly safe, by the prevalence of
his party and his principles; but the day very possibly may come when
he may find himself as obnoxious as the gentleman whom I defend.

“He may possibly by the same means, the malice, the injustice and
violence of party spirit, like my client, not only find himself reviled
and calumniated, but his dearest friends abused and persecuted. I
should be sorry that such a prediction should be realized with respect
to any gentleman; but, such are the natural consequences of his own
pernicious doctrine, and those we oppose.”

And now the speaker arrived at the end of his argument. Those of the
assemblage whose minds may have wandered now and then in the course of
Mr. Martin’s exposition of the technicalities of the law were brought
to attention by the solemnity of his countenance and the careful
weighing of his words:

“When the sun mildly shines upon us, when the gentle zephyrs play
around us, we can easily proceed forward in the straight path of our
duty. But when the bleak clouds enshroud the sky with darkness, when
the tempest rages, the winds howl and the waves break over us--when the
thunders awfully roar over our heads and the lightnings of heaven blaze
around us--it is then that all the energies of the human soul are
called into action.

“It is then that the truly brave man stands firm at his post. It is
then that by an unshaken performance of duty man approaches the nearest
possible to the Divinity. Nor is there any object in the creation on
which the Supreme Being can look down with more delight and approbation
than on a human being in such a situation and thus acting.”

The speaker turned to look straight into the eyes of the Chief Justice
as he continued: “May that God who now looks down upon us, who has
in his infinite wisdom called you into existence and placed you in
that seat to dispose justice to your fellow citizens, to preserve and
protect innocence against persecution--may that God so illuminate your
understanding that you may know what is right; and may he nerve your
soul with firmness and fortitude to act according to that knowledge.”

So saying, Mr. Martin shuffled over to his seat. It is a safe
assumption that the Chief Justice was not a little moved.

There were souvenir hunters even in those early days. In the _Gazette
and General Advertiser_, organ of Richmond’s Federalists, on the
morning of August 31 appeared this advertisement:

  The Gentleman--who while I was on Sat. last addressing the court,
  TOOK MY CANE from the seat behind me and carried it away--is
  respectfully requested to send it when he has done with it, to
  the Bar of the Swan Tavern. Luther Martin.

It hardly required a public notice to let people know where Mr. Martin
in his moments of relaxation was most likely to be found.




_Chapter_ XVIII


One of the principals who failed to hear Luther Martin’s masterly
argument was Harman Blennerhassett. He felt unwell on Thursday; on
Friday he awoke with a continuation of his indisposition attended by a
fever which made him so miserable he returned to bed without waiting
for breakfast. In keeping with the prevailing custom he dosed himself
with three or four grains of calomel.

Blennerhassett was a hypochondriac but on this occasion his ailment
was not imaginary. He was a victim of influenza which suddenly struck
Richmond in epidemic form. Next day the news reached him in the
penitentiary that half the families in the town were afflicted. The
disease hit the staff of the _Enquirer_ so hard that it was with the
greatest difficulty that popular organ of public opinion continued
publication.

Kind Mrs. Gamble heard of Blennerhassett’s illness and did what she
could to contribute to his comfort. On Sunday she sent him fruit and
fresh butter and fine calf’s foot jelly nicely chilled in ice. The
same day he was honored by a call from Mr. Martin and was by that time
sufficiently recovered to receive the visitor. Mr. Martin appeared none
the worse for wear as a result of his very strenuous labor in court.
Blennerhassett recommended his brandy as being considered superior and
put a pint tumbler before the Marylander.

No ceremonies retarded the libation. Blennerhassett’s absence from
the court during the time Mr. Martin held the floor was not to deprive
him of the privilege of getting a generous sample of the gentleman’s
eloquence and wisdom. The visit did not exceed thirty-five minutes. Yet
so fluent was the speaker that he delivered an account of an entire
week’s proceedings in the trial. He not only quoted verbatim long
extracts from his own speech but also extracts from the speeches of
other lawyers on both sides of the case.

Mr. Martin also regaled his host with whole columns, from a series
of papers, which he had written under the pen name of Investigator.
He also caricatured Jefferson and gave a history of his acquaintance
with Burr, expatiating on the latter’s virtues and suffering. These
last were not received enthusiastically by Mr. Blennerhassett. At the
moment he happened to be feeling particularly aggrieved over the manner
in which he had been duped by the adventurer. In fact, the laudatory
comments on Burr made by Martin raised the suspicion that he had been
deliberately sent by Burr to restore Blennerhassett’s good humor as
a precaution against the ever-present danger of his turning state’s
evidence.

Among other things Martin expressed the opinion that because Burr had
alleged he expected a war between Spain and the United States his
expedition was lawful. But, countered Blennerhassett, “may not a jury
think Burr did _not_ expect war and find their verdict then on the
confession?”

If Burr supposed that Blennerhassett would be favorably impressed by
Martin he was greatly mistaken. The latter had hardly left his presence
before Blennerhassett sat down and went to work drawing one of those
pen portraits which were so much the vogue at the time among those who
laid any claim to literary talent.

“His manner,” wrote Blennerhassett, “is rude, and his language
ungrammatical, which is cruelly aggravated upon his hearers by the
verbosity and repetitions of his style.... Fancy has been as much
denied to his mind as grace to his person or habits. These are gross,
and incapable of restraint, even on the most solemn public occasions.”

The influenza skipped the Chief Justice. Perhaps it considered it
futile to attempt an assault on his hardy constitution. It was just
as well for, over the weekend, he had strenuous work to do. Court
had adjourned late Saturday afternoon. It was scheduled to reconvene
early Monday morning. In the approximately thirty-six hours between
adjournment and reconvening, it was Judge Marshall’s task to review the
arguments presented, weigh them against each other, and arrive at a
conclusion to be contained in a written opinion. The Judge was taking
no chances. He knew that whatever opinion he might render would be
immediately scanned in Washington and perhaps misconstrued, that any
slip he might make would be used against him.

Sunday was an important day in Richmond when almost everybody went to
church. The Roman Catholics were ministered to by the Abbé du Bois, a
refugee from the French Revolution, who said mass in the courtroom of
the Capitol. Methodists and Baptists were numerous and had their own
churches.

The House of Delegates was the scene of an unusual example of
denominational co-operation between the Episcopalians and the
Presbyterians. The two sects were led respectively by Parson John
Buchanan and Parson John Blair, devoted friends who, in their lighter
moments, discussed philosophy and punned in Latin. Buchanan was a
bachelor and well heeled. Blair had numerous progeny and was hard
pressed to make ends meet. So Parson Buchanan applied his logic to the
practical end of convincing Parson Blair that all of Parson Buchanan’s
fees for marriages, funerals, and the like should by right go to Parson
Blair.

The Presbyterians did not yet have a church and the only Episcopal
church was St. John’s, on a high hill to the east and hard to reach.
The upshot of it was that Episcopalians and Presbyterians worshipped
together in the House of Delegates, with Parson Buchanan and Parson
Blair occupying the pulpit on alternate Sundays.

Whether Sunday, August 30, 1807, was Parson Buchanan’s turn in the
pulpit or Parson Blair’s history does not record. Judge Marshall was
an intimate of both parsons and a devout churchman as well. But it is
unlikely that, with the exacting business in hand, he found time to
attend church that day.

Even with that allowance there was not much time for reflection. A
plausible explanation is that while the lawyers were debating the Chief
Justice was formulating his opinion. This one was to be the longest
in the whole trial and the one containing the most references to the
authorities. It may well be that he made notes of these authorities
cited by the speakers as the argument proceeded.

Did he work by candlelight long into the night? Did he wake up with the
birds and labor during the cool hours of the early morning? Or did he
sit under the trees in his spacious yard during the day, braving the
critical looks of his neighbors as they returned from church? Whatever
the Chief Justice’s method, when court met on Monday morning, August
31, he was ready to deliver his opinion. Counsel, jury, and public in
attendance knew that the crisis in the trial had been reached.

The ever-courteous Marshall made use of his introduction to compliment
counsel on both sides. The motion, he said, had been argued in a manner
worthy of its importance and with an earnestness evincing the strong
conviction felt by opposing counsel that the law was with them.

“A degree of eloquence,” he declared, “seldom displayed on any occasion
has embellished a solidity of argument and a depth of research by which
the court has been greatly aided in forming the opinion it is about to
deliver.”

The Chief Justice restated the issue which was that, the testimony
having shown that the prisoner was not present when the overt act
mentioned in the indictment took place, objection had been raised that
testimony offered to connect him with those who committed the overt act
was totally irrelevant and therefore must be rejected.

His first task was to clarify the confusion arising out of the opinion
in the Bollman and Swartwout case, which already had been brought up
by counsel on both sides. It was said that it was on the basis of that
opinion that the Grand Jury had seen fit to bring in the indictments
for treason. The offending phrase was the one which said: “If a body
of men be actually assembled for the purpose of effecting by force a
treasonable object, all those who perform any part, however minute, or
however remote from the scene of action, and who are actually leaguered
in the general conspiracy, are to be considered as traitors.”

If the phrase meant what it seemed to mean then, surely, the absence
of Colonel Burr from Blennerhassett Island at the time of the alleged
overt act in no way relieved him of his guilt. Was the phrase a mere
_obiter dictum_ or chance remark as the defense maintained, or was it
a formal declaration of the court changing the previous conception of
treason as laid down in the Constitution as the prosecution assumed
it to be? The time had come for the Chief Justice to make known which
interpretation was correct.

He had heard, said Judge Marshall, that his opinion had been construed
to mean that any assemblage whatever for a treasonable purpose, whether
in force or not in force, whether in condition to use violence or not
in that condition, was levying war. It had not been expressly advanced
by the bar, but he understood it had been adopted elsewhere. (Anyone
who was at all conversant with the existing political situation knew
that the interpretation referred to was that of President Jefferson.
It had been adopted by his partisans, and it was because it had gained
such a firm hold that the incidents of Blennerhassett Island, mild
as they were, were assumed by the prosecution to fulfill the Chief
Justice’s definition of an overt act of levying war.)

Judge Marshall pointed out that the court which gave the opinion was
composed of four judges. Of these he said one was sick. He seemed
uncertain as to this judge’s opinion. Three judges were absent.
Therefore, said the Chief Justice, if the three judges who were absent
concurred with the sick judge who was present “and perhaps dissents,”
a majority of the judges might overrule the decision. A critical
observer might have charged that the Chief Justice was falling back
upon a good many suppositions.

What, he asked, was levying war? He had, he said, looked at all the
English authorities and, so far as he could see, levying war meant just
that. The words had received no technical meaning different from their
natural meaning. The assemblage must be a warlike assemblage, carrying
the appearance of force, and in a situation to practice hostility. The
Chief Justice added for good measure that the American judges, so far
as their opinions had been quoted, seemed to go even farther than the
English authorities and require the actual exercise of force.

But, he reminded, it had been said that all these authorities had been
overruled by the decision of the Supreme Court in the case of the
United States versus Bollman and Swartwout. Now it would be expected
that an opinion which was to overrule all former precedents and to
establish a principle never before recognized would be expressed in
plain and explicit terms. Had the intention been to make so material
a change, then the Court ought to have expressly declared that any
assemblage of men whatever who had formed a treasonable design
constituted the fact of levying war. Yet no such declaration was made.

What was more, said the Chief Justice, in the case of Bollman and
Swartwout there was no evidence that even these two men had met for the
purpose of executing a plan. In their case the issue of an assemblage
did not appear. In short, the Chief Justice asserted that general
expressions ought not to be considered as overruling settled principles
without a direct declaration to that effect.

Thus at last the ghost of the opinion in the case of Bollman and
Swartwout was laid by the same hand that had raised him. At least the
Chief Justice must have hoped so. It was not often that his rare gift
of logical reasoning was put to so severe a test. By this time counsel
for the prosecution must have seen how the wind was blowing, if they
had ever harbored any doubts about it.

The Chief Justice now got to the nub of his opinion. It was essential,
he said, that an indictment be explicit as to the nature of the crime
and the place where it was committed. Otherwise the accused would not
know how to defend himself. The whole treason laid in the indictment
was the levying of war on Blennerhassett Island and the whole question
was whether the prisoner was legally present. It was as if no other
overt act ever had existed. Therefore, said Judge Marshall, the only
point the Court was examining was the constructive presence of the
prisoner at the fact charged.

Now, said he, had Burr arrived on the island he would have been present
in fact. Or, had he taken a position near enough to co-operate with
those on the island, the question of whether he was constructively
present would be a compound of law and fact which the jury would decide
with the assistance of the Court as respected the law.

On the other hand, if the prisoner was not with the party at the time,
did not intend to join it, and if his co-operation was at a great
distance, in fact in a different state, then he was not constructively
present. Therefore the Judge confessed that he was strongly of the
opinion that proof of the actual or legal presence of the prisoner on
the island by the evidence of two witnesses could not be made.

But, continued the Judge, the prosecution might contend that the
indictment did not charge the prisoner with actually being present
at the assemblage on the island, but that though he was not at it
he caused it. If the law was as the prosecution maintained then
the procurement of the assemblage took the place of presence at
the assemblage. In that case, he insisted, under the Constitution
procurement of an assemblage should be testified to by two witnesses
just like presence at an overt act.

Judge Marshall pointed out that, because the advising of treason or
the procuring of treason was a secret matter of the mind rather than
an actual deed, it might be objected that it would be hard to prove.
But, he retorted, the mere difficulty of proving a fact surely did not
justify a conviction without proof.

Was the testimony the Government proposed to offer to prove the
overt act laid in the indictment? No, it was evidence of subsequent
transactions at a different place and in a different state. Such
testimony, he declared, was not relevant. It could be produced only as
corroborative or confirmatory testimony, if it could be produced at all.

The Chief Justice had now dealt with the decision in the Bollman and
Swartwout case and made it clear that it had not been intended to serve
as a new rule of law introducing constructive treason into the United
States. He had followed that up by showing that neither Colonel Burr’s
actual presence nor legal presence on the island at the time of the
overt act had been proved. This done he was coming to the end of his
opinion. The words he was about to speak had evidently been carefully
chosen. He must have been aware of the solemnity of the moment even
though he may not have foreseen that he was speaking for posterity as
he began:

“Much has been said in the course of the argument on points on which
the Court feels no inclination to comment particularly; but which may,
perhaps not improperly, receive some notice.

“That this Court dares not usurp power is most true.

“That this Court dares not shrink from its duty is not less true.

“No man is desirous of becoming the peculiar subject of calumny. No
man, might he let the cup pass from him without self reproach, would
drain it to the bottom.

“But he has no choice in the case, if there be no alternative presented
to him but a dereliction of duty or the opprobrium of those who are
denominated the world, he merits contempt as well as the indignation of
his country, who can hesitate which to embrace.”

There spoke the soldier of the American Revolution. Not all the power
that could be exerted by the presidential office, not all the threats
of public violence nor the prospect of public scorn could frighten
John Marshall from doing his duty as he saw it. If Aaron Burr was to be
found guilty of treason it would be only after he had been granted all
the protection that was due him under the Constitution and the laws of
the land.

If that be an undue encroachment of the Judiciary on the powers of the
Executive and the Legislature, let Mr. Jefferson make the most of it!

“The result of the whole,” concluded Judge Marshall, returning to his
customary calm, judicial language, “is a conviction as complete as the
mind of the Court is capable of receiving on a complex subject, that
the motion must prevail.”

He observed that the jury had heard the opinion of the Court on the law
of the case. They would now apply that law to the fact and would find a
verdict of guilty or not guilty as their conscience might dictate.

Although the great probability of an opinion ruling out the rest of
the evidence must have been foreseen by the prosecution, Mr. Hay was
momentarily confused as to how next to proceed. So, as soon as the
Chief Justice had concluded his remarks to the jury, the District
Attorney requested that the Court grant him time to consider it. Judge
Marshall readily agreed and an adjournment was taken until the morrow.

Whatever courses the counsel for the prosecution may have discussed
among themselves during the evening they came upon no plan to counter
the opinion of the Chief Justice. So, when the Court met next day, Mr.
Hay announced that he had nothing to offer the jury either of evidence
or argument and must, therefore, leave the case to it.

At the order of the Chief Justice the jury then retired. The assemblage
was not kept long in suspense. Soon the jury was on its way back to
the courtroom led by its foreman, Colonel Carrington. Asked by Judge
Marshall if a verdict had been reached, the Colonel arose and replied:
“We of the jury say that Aaron Burr is not proved to be guilty under
this indictment by any evidence submitted to us. We therefore find him
not guilty.”

Not guilty “by any evidence submitted to us.” Did the jury then mean to
imply that had some of the evidence not been withheld under the motion
made by the defense and sustained by the Chief Justice, it would have
found Aaron Burr guilty? Would that not be the impression made on the
public? If such an impression were made on the public could the verdict
then be regarded as an exoneration?

Colonel Burr did not think so. He was on his feet at once protesting
and he was supported in his protest by other counsel for the defense.
The Colonel called the verdict unusual, informal and irregular. He
demanded that the objectionable qualification be stricken out.

Luther Martin called it a tempest in a teapot. Colonel Carrington
interposed to say that if the objections to the offending passage were
continued the jury would strike it out. He was immediately contradicted
by his fellow juryman Richard E. Parker, an ardent Jeffersonian, who
shouted that it had been inserted deliberately and that it would stay
there.

Judge Marshall listened patiently throughout the controversy and
compromised the issue by stating that, in the opinion of the Court, the
verdict was in effect the same as a verdict for acquittal. He would
therefore let it stand in the bill as the jury had pronounced it. The
entry made on the record would be simply, “Not Guilty.”

With his customary courtesy the Chief Justice thanked the jury for its
patient attention during the whole course of the long and tedious trial
and dismissed it. Attorney Hay, recognizing the hopelessness of getting
a verdict of treason on the basis of the assemblage on Blennerhassett
Island therefore entered a _nolle prosequi_ to the indictments of
Blennerhassett and the other alleged conspirators. That is to say,
having failed to convict Burr, the Government would drop the charges
against his subordinates. However, Hay asked that they and Burr as well
be still held on charges of treason on the possibility of some other
overt act elsewhere being charged against them. This move was made by
Mr. Hay at the instigation of President Jefferson. Again the Chief
Justice listened patiently through another long argument over the
legal point involved. When it was over he ruled against the request,
pointing out that all of them still had to be tried before the present
Court on a charge of misdemeanor.

Yet another protracted argument arose over the proper bail for Aaron
Burr. His counsel contended that he should give none at all. Now that
the Colonel’s neck was safe it was no longer necessary for the Chief
Justice to make every concession the defense requested. He insisted
upon bail and ordered it set at $5,000. In spite of the defense’s
contention that no one dared perform this favor for Colonel Burr
because of public opinion two sureties at once presented themselves
and, on September 8, Aaron Burr found himself a free man. For nine
weeks he had been under confinement.

This being the sickly season in Washington the President had retired to
Monticello. Postmaster Gideon Grainger had installed a special courier
service between Washington, Richmond, and Monticello and Secretary of
State Madison’s summer home, Montpelier. It was to Monticello that
Hay reported to the President on the Government’s defeat which he
attributed to the unfriendly attitude of Judge Marshall. To show that
this was not his opinion alone he stated that “Wirt, who has hitherto
advocated the integrity of the Chief Justice, now abandons him. This
last opinion has opened his eyes, and he speaks in the strongest terms
of reprobation.”

Jefferson was willing enough to adopt this excuse for the failure of
the prosecution. He replied at once, “Yours of the 1st came to hand
yesterday. The event has been what was evidently intended from the
beginning of the trial; that is to say, not only to clear Burr, but to
prevent the evidence from ever going before the world.

“But this latter must not take place. It is now, therefore, more than
ever indispensable that not a single witness be paid or permitted to
depart until his testimony has been committed to writing....

“These whole proceedings will be laid before Congress, that they may
decide whether the defect has been in the evidence of guilt, or in the
law, or in the application of the law, and that they may provide the
proper remedy for the past and the future.”

There was no doubt as to where the President believed the defect to
lie. Burr had escaped conviction of treason. But in his trial on the
charge of a misdemeanor there was a prospect that the witnesses, who
had been refused opportunity to testify by the Chief Justice, would be
heard.

“Not proved to be guilty by any evidence submitted to us.” The
President in his letter made it clear that Mr. Hay was to be
responsible for seeing that the evidence which had been withheld
reached the eyes and ears of Congress. Then Congress would know where
the defect lay and provide the proper remedy.

The President had abandoned the hunt for Aaron Burr. He was now hot on
the trail of the Chief Justice.




_Chapter_ XIX


An Act of Congress of 1794 provided that if any person should, within
the jurisdiction of the United States, begin or set on foot a military
expedition against the territory of any foreign power with whom the
United States was at peace, he would be guilty of a high misdemeanor.
It was under this statute that Burr, Blennerhassett, and their fellow
conspirators now were to be tried. The specific charge against them was
that they had begun or set on foot an expedition against Mexico, then a
possession of Spain with whom the United States was at peace.

It was the opinion of some people that, in their effort to have Burr
exonerated of the charge of treason, his counsel had virtually admitted
the misdemeanor. Blennerhassett, it will be recalled, criticized one of
Luther Martin’s arguments for just that reason.

In the few days that intervened between the two trials Colonel Burr was
making the most of his new freedom. With the beautiful Theodosia on his
arm he strolled through the town in order to give the Richmond populace
full opportunity to see and admire her. The most serious crisis in her
father’s affairs having passed, she was on the point of returning to
South Carolina with her husband and son.

Blennerhassett too had now been relieved of the ignominy of confinement
behind bars. Released from the penitentiary he went to board in town
while Colonel Burr moved from Luther Martin’s house to the one that
had previously been occupied by the Alstons. It was not long before
Blennerhassett received a visit from the Colonel. According to his own
account he represented distinctly and with firmness that he expected to
be repaid for all the financial losses he had suffered either through
endorsing Burr’s papers or buying supplies for him. And, since he was
no doubt quite aware that such payment was beyond the Colonel’s powers,
he let him know that he intended to hold Alston answerable for any
losses he might have sustained over and above the amount of Alston’s
guarantee by letter.

Both men were the objects of courtesies at the hands of the
fashionable element who composed the Federalist society in Richmond.
Blennerhassett’s interest in music was immediately rewarded by
invitations to meetings of the Harmonic Society. Though at the outset
he could not assist in the program because he had no spectacles, he
was granted an honorary membership for the length of his stay in town.
He found the flutes good, four violins moderately good, and three
excellent singers who performed some charming trios by Dr. Calcott,
inspired by extracts from Ossian. These were new to Blennerhassett’s
ears and, on the whole, he enjoyed himself so much that he stayed
listening to the music until midnight.

The visitor was more fortunate at a meeting of the society a few nights
later. Somebody lent him a pair of spectacles, thus enabling him to
read notes and take part in a symphony and also in a quartet by Pleyel;
but, he lamented, “with less effect than if I had been provided with my
own.”

In fact now that Blennerhassett was free, on Sundays when the Court was
not sitting and in the evenings, he found many opportunities to enjoy
the best Richmond society. He made a special visit to Mrs. Gamble, no
doubt to thank her in person for the calf’s foot jelly and butter she
had sent him while he was in prison. He found her to be “a most amiable
old lady, so fraught with the generous humanity characteristic of her
sex, as to suffer not the connections of her daughters ... to prevent
her expressing not merely a concern for the general hardships we have
suffered, but even to censure the last two days’ proceedings in court.”
The “connections” of her daughters were of course Agnes’s husband,
Governor Cabell, and Elizabeth’s husband William Wirt who, had it not
been for Hay’s _nolle prosequi_, would at that very moment have been
using his eloquence to get Blennerhassett hanged.

Mrs. William Brockenbrough, too, was among the ladies expressing
solicitude for the poor persecuted prisoners. The former mistress of
Tuckahoe and present wife of the rising young banker was, observed
Blennerhassett, the nearest approximation in Richmond to a _savant
bel esprit_. Her reputation for intelligence was, perhaps, somewhat
enhanced in Blennerhassett’s estimation by her insistence that she must
get a copy of “The Querist” to read. The proud author of that series
of articles just then was under the impression that David Robertson,
who had done such a fine job of taking notes on the trial in shorthand,
was going to give them a longer life by including them in the book he
proposed to compile on the trial. In this expectation he proved to be
mistaken. “The Querist” articles were not made a part of Robertson’s
two classic volumes.

After his long years on his island with no settlement closer than
Marietta, Blennerhassett evidently relished the cultivated society that
the capital of the Commonwealth of Virginia provided. He experienced
great delight in the piano performance of a talented young Frenchman.
It lasted two hours and introduced Blennerhassett to the most recent
compositions of Haydn who, at the age of 75 years, was still producing
his melodious music. At another meeting of the Harmonic Society
he enjoyed the company of Mrs. Wickham and of Mrs. Chevallié. It
did not quite compensate for the separation from his wife, but the
Blennerhassetts were not entirely out of touch. “I had this morning,”
he exulted, “a long double letter from my adored wife. Its red seal was
as welcome to my eyes as the evening star to the mariner.”

However, these delightful diversions could not entirely erase the fact
that the Messrs. Burr and Blennerhassett were in Richmond for other
than social affairs. On September 9 the petty jury to hear the case of
misdemeanor against the Colonel was sworn in and the trial of witnesses
commenced. The trial was less than a week old when the same obstacle
presented itself that had halted proceedings in the treason trial.
Defense counsel again objected to what they regarded as quantities of
irrelevant matter in the testimony.

After the issue had been debated at length the Chief Justice again
issued one of his long and learned opinions sustaining the defense’s
objection. The testimony, he ruled, must include only that which showed
the expedition to have been military in nature and designed against the
dominions of Spain. He ruled further that the testimony must deal only
with the acts charged in the indictment and which were alleged to have
occurred within the jurisdiction of the Court.

Again the District Attorney confessed he had presented all the
testimony answering the description of that which the Chief Justice
had ruled to be admissible. So, like the treason trial, that on the
misdemeanor charge came to an abrupt conclusion. It took the jury
not more than half an hour to find Aaron Burr not guilty of a high
misdemeanor. Again, as in the treason trial, on hearing the verdict Mr.
Hay entered a _nolle prosequi_ in the cases of Blennerhassett and the
other accused men.

The defeat of the Government was now well nigh complete. The gallant
Wilkinson, observing the proceedings in Richmond, wrote a letter of
condolence to his chief.

“The disgraceful and dishonorable scenes which have been passing in
review here are drawing to a close,” he lamented. “Burr has just been
acquitted on the trial for misdemeanor and now a motion will be made
for his transmittal to Kentucky, which will go off the same way. The
chief [Marshall] has stepped in too deep to retreat, and indeed, his
enterprise and hardihood almost justify the suspicion that he has been
a party to the conspiracy.” Wilkinson spoke of reforming the Federal
courts and getting rid of a “corrupt judge.”

Mr. Jefferson, in a letter to a friend took his cue from the General,
remarking: “The scenes which have been acting at Richmond are
sufficient to fill us with alarm. We supposed we possessed fixed laws
to guard us equally against treason and oppression; but it now appears
we have no law but the will of the judge.”

Once more it looked as though many of the Government’s witnesses, who
had been gathered together with such great pains and who had been
waiting all these weeks to testify, would go home without being heard.
But Mr. Hay had one more trump card to play. He moved that the alleged
conspirators be committed both on charges of treason and misdemeanor
which might have taken place in Ohio and Mississippi. Through this
motion the Chief Justice found himself transformed into an examining
magistrate. As such he regarded it as essential that all the evidence
be heard. So at last, in spite of the protests of defense counsel, the
Court was thrown open to any and all witnesses the Government chose to
present.

For the most part they were youths and humble folk who had joined the
expedition or had had dealings with the party on Blennerhassett Island.

Edmund P. Dane--the Blennerhassetts had come to his house at Belpré to
buy cider. They had invited him to go on the expedition, assuring him
it was not hostile to the Government and aimed only at settling the
Washita lands.

Israel Miller--he was with the expedition when Burr met it at the mouth
of the Cumberland. He mentioned a few weapons.

“Do they kill ducks and turkeys with bullets?” inquired Mr. MacRae, who
was familiar only with hunting on the eastern coast.

“If the gentleman had ever been in Kentucky,” remarked Burr dryly, “he
would have known that it was considered inglorious there to kill a
squirrel, or even ducks, with anything but bullets.”

James McDowell--he went with the expedition as far as Chickasaw
Bluffs, the present site of Memphis. He saw a few guns with bayonets,
but no boxes of arms. It appeared to him that Burr was in command.
Recalled to the stand, he admitted that after leaving the mouth of the
Cumberland he saw six or seven boxes that were so heavy he could not
lift them.

Stephen S. Welch--he joined the party at the mouth of the Cumberland.
He said the proposition put up to him was settlement of the Washita
lands. Samuel Moxley and Chandler Lindsay, John Mulholland and Hugh
Allen told much the same story.

“Had you any reason to suspect that any of the party meditated
hostility against the United States?” inquired Burr of Allen. “Never,”
Allen replied.

A prize witness for the prosecution was Sergeant Jacob Dunbaugh, a
member of Captain Bissell’s command at Fort Massac when the Burr
expedition passed there. Dunbaugh testified that Burr invited him to
join the expedition and go down the river, for which purpose Captain
Bissell gave him a furlough of twenty days. After the expedition had
left Bayou Pierre he said he saw Colonel Burr and another man go to the
bow of the boat and set to work with an ax, augur, and saw, chopping
and sawing. According to Dunbaugh two bundles of arms tied up with
cords were sunk. On being questioned he estimated the arms at from
forty to forty-three stands. He said he also saw pistols, swords,
blunderbusses, fusees, and tomahawks.

Dunbaugh testified further that, after Captain Bissell had given him
leave to go with the expedition, Colonel Burr had called him into his
cabin and asked him if he could persuade ten or twelve of the best men
in the garrison to go along. He protested that he had repelled any such
suggestion. On further questioning it was brought out that what the
Sergeant meant to convey was that Colonel Burr wanted the men to desert.

The reason for the alleged sinking of the arms was in order to hide
them from the Mississippi authorities when they made a search of the
boats. Dunbaugh said one man had been delegated to take out a hogshead
of potatoes with which to fill an arms box to make it look like a box
of potatoes. The arms, he declared, suspended by cords, were down so
deep that the boat could not get to within fifty yards of the shore.

Dunbaugh’s evidence was the strongest that yet had been given to
show the military aspects of the expedition. But it lost much of its
force when, under cross-examination, the Sergeant confessed that he
had overstayed his twenty-day furlough, had been arrested and found
guilty of desertion and imprisoned, and that he had written to General
Wilkinson promising him that if he were released he would be in New
Orleans in three days, presumably to do the General’s bidding in the
trial.

More impressive because of its source was the evidence of Alexander
Henderson, a respected citizen of Wood County. Mr. Henderson described
a visit from Mr. and Mrs. Blennerhassett who mentioned to him the
advantages to be gained by the West in separating from the Union. The
Blennerhassetts had remained for dinner and after the meal was over
Harman enlarged on the same theme in the presence of Alexander and his
brother John. He told them, said Alexander, that New Orleans was to be
seized, and that artillery to the number of fifty pieces belonging to
the French was to be commandeered.

“Did you understand whether he said anything for Mr. Jefferson?” asked
Mr. Wirt, evidently with an end to refreshing the witness’s memory.
Alexander replied that “Mr. Blennerhassett said that if Mr. Jefferson
was any way impertinent that Colonel Burr would tie him neck and heels
and throw him into the Potomac.”

“What did he say of his means of opposition to the Government?”

“He mentioned,” said Henderson, “that with three pieces of artillery
and 300 sharpshooters he could defend any pass in the Allegheny
Mountains against any force the Government could send.”

The witness testified further that Blennerhassett had shown them two
numbers of “The Querist” and told them he had written them.

“It is remarkable,” observed Mr. Wirt, addressing the Court, “that
Colonel Burr was at the island on the 1st of September and the first
number of ‘The Querist’ is dated the 4th.”

John Graham, Secretary of the Mississippi Territory, who had been
directed by the Government in Washington to investigate Burr’s
activities in the West, was next called to the stand. He told of
his meeting with Blennerhassett who, with his customary gift for
blundering, at first mistook him for a friend of Colonel Burr and
one who was sympathetic with the expedition. Yet he admitted that
Blennerhassett had mentioned the settlement of the Washita lands as
being the object. Furthermore, according to Graham, when he tried
to discourage him from taking part, Blennerhassett replied that the
expedition was legal, that he and Burr were familiar with the law and
knew what they were doing. As for the separation of the western country
from the Union, he and Burr held that it would be beneficial for the
people of the West but realized that they were not yet ready for it.

Saturday, September 26, was a red letter day in the trial since it
brought two colorful figures to the witness stand in the persons of
General Eaton and General Wilkinson. Eaton now was permitted to include
in his testimony that part of his affidavit which Judge Marshall had
forbidden in the treason trial on the ground that it was irrelevant
to the doings on Blennerhassett Island. The evidence was sensational
enough but, having been published in the newspapers throughout the
country months before, it was an old story that had lost most of its
original force.

According to Eaton, in the course of their conversations in Washington
during the winter of 1806, Burr told him that if he could win over
the Marine Corps and secure the interest of Truxtun, Preble, and
Decatur, he would turn Congress out neck and heels, assassinate the
President (or what amounted to that), and declare himself the protector
of an energetic government. Eaton insisted that Burr had used such
expressions as “hang him,” “throw him into the Potomac,” and “send him
to Carter’s Mountain.” Carter’s Mountain was that eminence overlooking
the town of Charlottesville, Virginia, on whose edge lay Monticello.

In response to these boasts Eaton claimed he had observed to Burr that
one solitary word would destroy him. When Burr inquired what the word
was Eaton replied, “Usurper.” Burr, continued Eaton, smiled at the
General’s want of confidence, quoted examples of dictators from ancient
history and, if Eaton’s memory served, mentioned Caesar, Cromwell, and
Bonaparte.

Yet who could believe Eaton, a mere adventurer who had not yet had time
to spend the $10,000 indemnity presented to him by the Government so
shockingly close to his appearance as its witness? Eaton’s blustering
and braggadocio while he was hanging around during the summer waiting
his summons to testify also had created an unfavorable impression
in the town. The story was spread that one disgusted Richmonder had
threatened to kick the Hero of Derne out of a saloon. Nevertheless
Eaton’s account of Burr’s lurid boasts bore an astonishing resemblance
to those the Morgans had claimed Burr had made to them, and those that
Alexander Henderson had charged that Blennerhassett had made to him.

Now at last, when the proceedings were almost through, General
Wilkinson was allowed to give his version of the conspiracy in open
court. It was the story of Samuel Swartwout’s arrival at Wilkinson’s
headquarters at Natchitoches with the cipher letter from Burr, and of
Eric Bollman’s arrival at New Orleans with the duplicate. It provided
a fresh opportunity for the General to present himself to that large
and attentive audience in the role of the savior of his country. But
the cross questioning to which he was subjected by the defense made him
squirm, while the explanations he gave in reply were a major test of
his ingenuity.

Had he made an erasure in the letter? Yes, he had erased the sentence
“yours, postmarked 13th of May, is received.” The sentence was a clear
giveaway that he had been in previous communication with Burr.

“Have you ever sworn that this was a true translation?” asked Mr. Botts.

“No, only substantially so,” was Wilkinson’s reply.

When the questioning drove him into a corner he excused his conduct on
the ground that at the time he had many military duties to perform in
defense of his country and was in a hurry. Besides, he had been upset
by the death of his wife. No doubt there was truth in that for his
devotion to her was universally acknowledged.

Why, Mr. Wickham asked him, had he waited from October 10th, when
Swartwout handed him the cipher letter, until October 21 to notify the
Government? Mr. Wickham’s implication was that he had needed the time
to make up his mind. But the General had a different and plausible
explanation. He said he took that time in order to get out of Swartwout
all the information he could about the conspiracy. Why had he asserted
in his first letter to the President that he did not know the leader?
Wilkinson pleaded that he was not at that time sure since he could not
fully trust what Swartwout told him.

September gave way to October and Wilkinson was still on the stand
being badgered by the defense. Counsel for Colonel Burr were desirous
of linking the General’s high-handed conduct in New Orleans with orders
issued by the Government. This line of questioning brought a protest
from Hay.

“It has been the constant effort of the counsel on the other side
to identify General Wilkinson with the Government,” he charged. “We
have heard of the plundering of post offices, violating of oaths and
prostrating of private rights. Now it is asked if the Government
approved of these acts. Is it proper, is it decorous to pursue this
course?”

“Do you recollect expressing to any person that he would confer
the highest obligation on the Government by seizing Colonel Burr?”
Wilkinson was asked by the defense. The General admitted that he might
have said that since those were his sentiments. His great object, he
declared, was to apprehend Burr and deliver him to the civil power
for trial. The city of Washington was the place he wished to have him
sent. But personal injury to the Colonel had not entered his head. He
recollected a German had come to him and proffered his services to take
the Colonel “dead or alive.”

“I was shocked at the very idea,” declared Wilkinson, “and declined
employing him.”

When Mr. Wickham demanded a letter purported to have been written by
President Jefferson to Wilkinson approving the measures the General had
taken, he set off another argument almost as acrimonious as that which
had attended Burr’s request for the _subpoena duces tecum_.

“These gentlemen, it seems, are carrying on an impeachment against the
President of the United States,” asserted Mr. Wirt, not unmindful of
the political effect of the charge. “What is their object in demanding
this letter? It is no more than vainly to attempt to inculpate the
President and to gratify their spleen and their resentment against
him. Is that their object? Is Aaron Burr more or less guilty because
he [the President] has approved or disapproved the measures of General
Wilkinson?”

“They want to ask you,” continued Wirt, pursuing the same line of
criticism, “which is the most guilty, Thomas Jefferson or Aaron Burr?
Are you, then, trying the President? And even if you were, would
you not have him here and give him an opportunity of answering his
accusers?”

“It has already been decided in this Court,” retorted Martin, “that the
President has no more rights than the man who walks the street in rags.
‘What!’ says the gentleman. ‘Will you then violate the sanctity of
private correspondence?’ Sir, when the gentleman made this declaration,
I looked at his face to see whether it did not blush with shame, and
even burst with blood, at expressing such a sentiment.”

“I hope, Sir,” observed Wirt, “the redness of a man’s face is no
evidence of a man’s guilt.” This indirect allusion to Martin’s own
physiognomy, red presumably as a result of his addiction to the bottle,
was surely not lost on the audience.

The Chief Justice expressed regret that the question of producing the
letter had arisen. It was irksome to him, he declared, and it was with
considerable reluctance that he must insist on its being produced. He
did only what his duty prescribed. However, Judge Marshall concluded,
though he did not know what the letter contained he saw no need for it
to be read aloud.

Now the tables were turned by the prosecution. They had contended all
along that there was nothing in the letter which reflected against
the President. So MacRae stated that the prosecution preferred to
read the letter to the Court as being “the only way to avert the
misrepresentations of its contents.”

No sooner had the argument over this one letter been settled than
Wickham was up again demanding that the whole of another letter from
the President to Wilkinson be produced. The Chief Justice reminded him
that the President had certified his reasons for communicating only
certain parts of the letter. He believed that the withheld parts had no
application to the present prosecution.

Mr. Martin was on his feet again protesting. He hoped the Court had
not definitely decided the point. Once more he displayed his personal
animosity toward Mr. Jefferson. “Has not the Court already declared
that the President has no more power here than any other man? If this
be law, for which gentlemen now contend, God forbid that I should
remain a citizen of the United States.

“And is Mr. Jefferson to be the judge of the relevancy of evidence,
in a prosecution in which he has taken so active a part against the
accused? Mr. Jefferson, Sir, is a man of no legal knowledge. He was of
no celebrity as a lawyer before the Revolution, and he has since been
so much engaged in political pursuits that he has had time enough to
unlearn the little law he ever knew.”

Hay rose to the defense of the President against Martin’s vituperation.
“The only end of this conversation is abuse of Mr. Jefferson,” he
declared.

“Sir,” retorted Martin, “we shall use Mr. Jefferson so as not to abuse
him. Remember that the life and liberty of Colonel Burr are shown to
be no longer dependent on Virginians, and therefore I am free from
any restraint in declaring what I think.” In this scornful thrust at
Virginians might be discerned a reply to Editor Ritchie’s belittlement
of the capacity of a certain Maryland lawyer.

It now came General Wilkinson’s turn to take the offensive in
explaining his actions in New Orleans by presenting the warning letter
dispatched by Andrew Jackson to Governor Claiborne. He also offered a
deposition stating that Burr’s stepson, Judge Prevost of New Orleans,
had saluted a public officer there and congratulated him on the
arrival of General John Adair, of Kentucky, as second in command to
Burr. The Chief Justice ruled that it would not be correct to permit
the deposition to be read. The episode nevertheless set the stage for
another of Wilkinson’s patriotic outbursts. Striking an attitude, he
declared: “I was prompted by that pure patriotism which has always
influenced my conduct and my character which I trust will never be
tarnished. I shall continue to defy the utmost art, fraud, deception
and villainy that my enemies can practice toward me.” Never was the
General more eloquent than when he was proclaiming his virtue.

The proceedings now and then were enlivened by verbal exchanges between
Martin and Wirt. General Wilkinson offered a letter that Mr. Martin had
requested the day before. Mr. Martin looked at it and remarked that it
was “only an extract.” The General replied that he had no other.

“We take no extracts,” retorted Mr. Martin, returning the paper to
Wilkinson.

“Unless it be of molasses,” commented Wirt, sotto voce. At this stage
of the trial Blennerhassett noted that Martin was “more in his cups
than usual.”

The defense counted heavily on the evidence of a Major James Bruff
to discredit Wilkinson. Bruff testified that the General had held
out inducements to him to join an expedition against the Spaniards.
He stated that on a visit to Washington he had called on both the
Secretary of War and the Attorney General and warned them that
Wilkinson was acquainted with Burr’s plans and involved in them.
According to his story, Secretary of War Dearborn replied that it would
be impossible at this point for the Government to discredit Wilkinson.

The Government, however, had foreseen Bruff’s testimony and prepared
itself to meet his charges. It had on hand as witnesses Lt. Edmund
Pendleton Gaines--the same Gaines who had accepted Burr’s arrest--and
a Commodore Shaw. These military gentlemen had traveled to Richmond
in the same stagecoach with Bruff and testified that Bruff had
announced in their presence that he was going to get even with General
Wilkinson. Bruff had recently been sentenced by a court martial. The
testimony of Gaines and Shaw supported that of Wilkinson who asserted
that Bruff had long borne toward him an implacable hatred.

In replying to Bruff’s testimony Wilkinson artfully contrived to work
into his evidence damaging details of Burr’s behavior at their meeting
at St. Louis in the autumn of 1805, which hitherto he had been given
no opportunity to present. He attributed to Burr a reference to the
imbecility of the Government, the prophecy that it would moulder to
pieces, and his observation that the people of the western country were
ready for revolt.

“To this I recollect replying,” said the General unctuously, “that
if he had not profited more by his journey in other respects, he had
better have remained at Washington or Philadelphia; for surely, said
I, my friend, no person was ever more mistaken. The western people
disaffected to the Government! They are bigoted to Jefferson and
Democracy.” The General no doubt was not unmindful of how that would
sound when the President got around to reading the testimony.

Wilkinson concluded with a parting shot at Major Bruff: “But I can
state before you, Sir [addressing the Chief Justice], and before God
[turning his eyes up to Heaven and placing his hands over his heart]
that this whole narrative is either a vile fabrication or a distortion
of fact.” After a whole week of cross-questioning the General’s spirit
was unquenched and his flair for histrionics as keen as ever.

During all these tedious proceedings the “culprit” Burr, too, contrived
to enjoy himself. Even though he had confessed that he had been duped,
Blennerhassett still could not resist the Colonel’s magic charm. The
two were constantly in each other’s company. Blennerhassett found
Burr as gay as ever and busy speculating on the reorganization of his
projects just as though they had never suffered the least interruption.
He observed to the Irishman that within six months all their schemes
would be remounted. What was more, said the Colonel, they could
remodel them in a better mould than formerly since they now had a
clearer view of the ground and a more perfect knowledge of men.

Blennerhassett listened in silence while he thought to himself “...
time will prove him as incapable in all his future efforts as he has
been in the past.”

The day after the jury had declared Burr “not guilty” of a misdemeanor
the Colonel celebrated at a dinner party which included Martin,
Blennerhassett, and a cousin of Judge Prevost. The dinner itself
featured all the delicacies Richmond’s lavish Main Street market
afforded and it included also three or four wines.

“Splendid poverty!” Blennerhassett exclaimed.

During the chit-chat after the cloth had been removed a note was handed
the Colonel. Blennerhassett, who sat next to him, detected the odor of
musk and mentioned it. This was the cue for his host to enliven the
company with the story of a flirtation. Blennerhassett gave space to
it in his diary “only to convey an idea of the temperament and address
which enabled this character on certain occasions, like the snake, to
cast his slough, and through age and debauchery, seem to uphold his
ascendancy over the sex.”

Yet, in spite of this caustic criticism, Blennerhassett did not
cease to marvel at Burr’s ingenuity. He discovered in the Colonel’s
possession a complete file of all the depositions made before the Grand
Jury. “It must be confessed,” he remarked, “that few other men in his
circumstances, could have procured these documents out of the custody
of offices filled by his inveterate enemies. I have long been at a loss
to imagine the means he used, of which I am not yet fully informed.”

Burr, too, succumbed to the malady which had laid low so many people
in Richmond. On one of his visits Blennerhassett found him in bed. He
suggested that a doctor be called, to which Burr replied that he had no
confidence in the local physicians. Blennerhassett expressed himself as
being of the same opinion, unless he excepted Dr. McClurg. This was an
unwarranted reflection against some of Richmond’s outstanding members
of the medical profession.

Blennerhassett thoughtfully went to a druggist and returned with
medicine carefully prepared which he left with the Colonel. When
he returned in the evening to see how his patient was faring, Burr
confessed that, instead of taking Blennerhassett’s medicine, he had
given himself a dose of laudanum. He defended his action on the ground
that he felt weak and in need of an opiate.

At one of their meetings Burr confided to Blennerhassett that as soon
as the trial was over he proposed to set off immediately for England,
there to collect money for his projects.

“In London, no doubt,” commented Blennerhassett bitterly, “he will
pledge himself to appropriate every guinea they will advance him to the
promotion of such operations on the continent as will best serve the
interests of Britain; and if he had not already exposed his duplicity
and incapacity in his favorite area of intrigue to Yrujo, he would
again as readily promise to advance, with Spanish dollars and Spanish
arms, the fortunes of the Spanish minister and his master.”

Toward the close of the trial Blennerhassett had the pleasure of
drinking tea and spending the evening at the Chevalliés’. There he met
Mrs. David Randolph, formerly the mistress of Moldavia, and the sister
of a son-in-law of Jefferson. Moldavia, derived from the names of Molly
and David Randolph, was Richmond’s fashionable boarding house. Mrs.
Randolph was famous as a provider and the author of a cook book. She,
it will be recalled, was credited also with having designed a tin-lined
ice chamber for storing perishable foods that was used as model for the
first American refrigerator. Blennerhassett found her accomplished,
charming in manner, and possessing a masculine mind. He recorded that,
in spite of her relationship to the President, “I heard more pungent
strictures upon Jefferson’s head and heart ... and she certainly
uttered more treason than my wife ever dreamed of, for she ridiculed
the experiment of a republic in this country.” No wonder since the
President had deprived her husband, a Federalist, of the lucrative
post of U.S. Marshal of Virginia.

The last days of the trial were enlivened also by a personal encounter
between General Wilkinson and young Sam Swartwout. They ran into each
other on a narrow sidewalk and the injured young man shouldered the
portly major general off into the street, uniform and all. He followed
this insult with a challenge to a duel to which Wilkinson did not
reply. He would have no correspondence with traitors, and conspirators,
he declared. Swartwout therefore was reduced to publishing in the
_Virginia Gazette_ an open letter to the General which read:

“Sir--I could not have supposed that you would have completed the
catalogue of your crime by adding to the guilt of treachery, forgery
and perjury, the accomplishment of cowardice....

“Having failed in two different attempts to procure an interview
with you, such as no gentleman of honor could refuse, I have only to
pronounce and publish you to the world as a coward and poltroon.”

Burr’s gaiety, which Blennerhassett noted, was not at all times
apparent in the courtroom. As the Chief Justice began to show greater
leniency toward accepting the prosecution’s testimony the Colonel
became progressively more bitter. He made little effort to conceal his
irritation at what he conceived to be weakness and vacillation on the
part of Judge Marshall.

At last the prosecution came to the end of its list of witnesses and
left to the Court a decision on Hay’s motion that the conspirators be
held on charges of treason and misdemeanor outside the jurisdiction
of the Virginia circuit. On October 20 the Chief Justice delivered
his final opinion. Weighing the whole of the testimony, he said,
it appeared to him to predominate in favor of the belief that the
enterprise was really designed against Mexico. If there had been
any plan for dismembering the Union it was known only to Burr and
Blennerhassett. Even the witnesses offered by the prosecution had
asserted that they had heard nothing and suspected nothing hostile to
the United States. How then could the assemblage of men be said to
have levied war against the United States? He therefore concluded
that, in his judgment, it would be improper to commit the accused on
the charge of treason.

As to the charge of misdemeanor, it appeared to the Chief Justice that
Burr’s purposes were to settle the Washita lands and to invade Mexico
if opportunity offered, perhaps only in the event of war with Spain.
But this was a matter which should be left to the decision of the jury,
and he would make no comment on it one way or the other to influence
their judgment. He therefore would commit Burr and Blennerhassett for
preparing and providing the means for a military expedition against
Spain. In this instance the misdemeanor was alleged to have occurred
in Ohio. Therefore Burr and Blennerhassett were released on bail for
the action of the Circuit Court in that state at its next meeting on
January 4, 1808.

Hay interpreted the decision as a defeat for the Government forces.
He immediately said that he would advise the Government to desist
from further prosecution. No man on either side had labored more
indefatigably than he. But his patience was now at an end. And so in
the last days of the trial he threw aside all restraint and confided
in Jefferson his true sentiments with respect to Wilkinson. To the
President he wrote: “The declaration which I made in court in his
favor some time ago was precipitate; and though I have not retracted
it, everybody sees that I have not attempted the task, which I in fact
promised to perform. My confidence in him is shaken, if not destroyed.
I am sorry for it, on his account, on the public account, and because
you have expressed opinions in his favor; but you did not know then
what you will soon know, and what I did not learn until after--long
after--my declaration above mentioned.”

Whatever Mr. Jefferson’s innermost feelings may have been on receipt
of this letter from the District Attorney surely he was then in no
position to confess any misgivings about the man whom he had taken as
his chief ally in the proceedings in Richmond.

Burr was no better pleased with the Chief Justice’s decision on the
Hay motion than was its author. In his disappointment at not being
granted complete exoneration he ignored the courageous behavior of
Judge Marshall in his behalf at the critical moment when the mob was
hot on Burr’s heels.

Three days after the rendering of the final decision he wrote in
disgust to Theodosia: “After all, this is a sort of drawn battle. The
Chief Justice gave his opinion on Tuesday. After declaring that there
were no grounds of suspicion as to treason, he declared that Burr and
Blennerhassett should give bail in $3,000 for further trial in Ohio.

“This opinion was a matter of regret and surprise to the friends of the
Chief Justice, and of ridicule to his enemies--all believing that it
was a sacrifice of principle to conciliate Jack Cade.”

Gratitude was not one of Colonel Burr’s most conspicuous attributes.




_Chapter_ XX


It will be recalled that when Aaron Burr was under suspicion in the
Fall of 1806 he made haste to assure his friends in no uncertain
language that there was no truth in the rumors.

Senator John Smith of Ohio, who had received the Colonel cordially on
his visit to Cincinnati, was among the first to grow alarmed and to
make direct inquiry. Burr replied that he was “surprised and hurt” at
the unusual tenor of Smith’s letter. He then went on to say: “If there
exists any design to separate the Western from the Eastern States,
I am totally ignorant of it. I never harbored or expressed any such
intention to anyone, nor did any person ever intimate such design to
me.”

A month later, in November, Burr addressed a letter to Governor William
Henry Harrison, of the Northwest Territory. “Considering the various
and extravagant reports which circulate concerning me,” he said, “it
may not be unsatisfactory to you to be informed (and to you there
can be no better source of information than myself) that I have no
wish nor design to attempt a separation of the Union, that I have no
connection with any foreign power or government, that I never meditated
the introduction of any foreign power or influence into the United
States, or any part of its territories, but on the contrary should
repel with indignation any proposition or measure having that tendency;
in fine, that I have no project or views hostile to the interest,
or tranquillity, or union of the United States, or prejudicial to
its government; and I pledge to you my honor for the truth of this
declaration.”

Within the space of a few days he was assuring Henry Clay that: “I
have no design, nor have I taken any measure, to promote a dissolution
of the Union or a separation of any one or more States from the
residue.... I do not own a musket nor a bayonet, nor any single article
of military stores, nor does any person for me by my authority or with
my knowledge.”

On top of all that General Andrew Jackson was himself authority for
the statement that, in reply to his inquiries, Burr had given “the
most sacred pledges that he had not, nor never had, any views inimical
or hostile to the United States, and whenever he was charged with the
intention of separating the Union the idea of insanity must be ascribed
to him.”

Here then from the lips of the accused himself were the most
categorical denials of the serious charges that had been brought
against him. To the truth of his assertions he pledged his honor as a
gentleman. It was a pledge supported by many generations of Burrs and
Edwardses representing the purest blood of Puritan New England. Only by
hair-splitting with the deliberate intention of misleading could his
declarations be otherwise construed.

Since then Burr’s innocence of the crimes of treason and high
misdemeanor, so far as his actions within the territory of Virginia
were concerned, had been attested by two juries of his peers in a
tribunal presided over by the Chief Justice of the United States. The
only mark against him that remained unresolved was his commitment by
Judge Marshall for possible misdemeanor in the State of Ohio.

In the light of this exoneration the Federalists might well claim that
their charge had been sustained: to wit, that Burr was an unoffending
man who had been subjected to merciless political persecution at the
hands of Thomas Jefferson and his followers. On the basis of the
decisions rendered in Richmond future generations might perpetuate that
belief.

Some eighty years were to pass before fresh evidence was disclosed
touching on the activities of Aaron Burr at the turn of the century.
It was on or around the year 1890 that Henry Adams, the historian,
gained access to the British and Spanish archives which contained
the written reports of their representatives in this country during
the administration of Thomas Jefferson. The ministers of these two
countries were respectively Anthony Merry and the Marquis de Casa Yrujo.

Anthony Merry came to the United States highly recommended by our
Minister to the Court of St. James’s, Rufus King. Merry sought the
office and, according to all accounts, was eager to do a good job.
Unfortunately for that ambition he arrived at a time when Jefferson’s
ingrained antipathy toward England was at its peak. It also was at
a time when the President was showing his greatest persistency in
applying his theories of equality to the official society of the
capital. The unhappy Merry proved to be an ideal subject on which Mr.
Jefferson could practice his theories.

The first opportunity came when Mr. Merry went with Secretary of State
Madison to present his credentials at the White House. The traditional
story is that the President received the emissary from his Majesty King
George III in his bedroom slippers. Of course there was no rule against
such informality. Mr. Jefferson’s indifference to dress was notorious.
No slight may have been intended. Yet the British Minister, wearing the
full regalia of his office, was made to look somewhat foolish. He not
unnaturally assumed that the author of the Declaration of Independence
was being deliberately rude.

That impression gained support soon thereafter when, at his official
dinners, the President abolished the rules of precedence and
substituted that of “pêle mêle,” under which the company marched from
the drawing room to the dining room in whatever order they found
themselves. The system deprived the British Minister of the place to
which he felt entitled.

It so happened that Mrs. Merry was a lady of fiery temper who rejoiced
in the clash of battle. She was more eager than her husband to pick
up the gantlet Mr. Jefferson had thrown down. The result of all this
was a tempest in official circles in Washington which the critics and
enemies of the President rejoiced in and did nothing to allay.

Such was the unfriendly relationship between the President and the
Merrys when, in July of 1804, following his duel with Hamilton, Colonel
Burr appeared as a refugee in Philadelphia. The Merrys were spending
the summer there. It was not long before the Colonel, with his unerring
eye for singling out malcontents in the prospect of working them into
his plans, made a contact with Merry. In a letter to Lord Harrowby,
then the British Foreign Secretary, dated August 4, Merry informed his
superior of the details of a visit he had just received from Colonel
Williamson, an emissary of Burr, whom he described as the “actual
Vice-President of the United States (which situation he is about to
resign).” On that point Merry was definitely misinformed.

Burr, said Merry, had made an offer through Colonel Williamson to lend
his assistance to his Majesty’s Government in any manner in which they
might think fit to employ him, “particularly in endeavoring to effect
a separation of the western part of the United States from that which
lies between the Atlantic and the mountains.” Burr’s proposition, said
Merry, would be fully detailed to Lord Harrowby by Williamson who was
to embark for England within a few days.

Merry alluded to Burr’s profligacy of character. He then sketched his
existing situation, describing how he was now cast off by both the
Democratic and Federalist parties but still preserved connections with
some people of influence. He called attention to Burr’s great personal
ambition and the spirit of revenge he harbored against the Jefferson
administration. These circumstances Merry thought might possibly induce
him to exert his talents and activity with fidelity to his employers.
That, in substance, was Merry’s first communication with his superiors
on the subject of Burr.

In the succeeding months Burr made his trip to the South, then returned
to Washington and presided at the trial of Justice Chase before
retiring from the Vice-Presidency. Meanwhile his friend Colonel
Williamson had journeyed to England where he held conferences with the
British ministers trying to get the co-operation of their government in
Burr’s plans. Burr’s next contact with Merry was shortly before he set
out on his first trip to the West.

About this time there arrived in Washington a delegation from Louisiana
to lay their grievances before the Government. Under the treaty by
which the territory had been ceded to the United States its people were
promised all the rights and privileges of United States citizens. But
the United States Government was slow in carrying out its commitments.
Here was another discontented group.

To Lord Harrowby on March 29, 1805, Merry directed another letter
which he marked “Most secret.” Merry mentioned that Burr had been very
intimate with the Louisiana deputies during their visit to Washington.
From Burr he learned that the people of that territory seemed
determined to make themselves independent of the United States and
that the execution of their design was delayed only by the difficulty
of obtaining previously an assurance of protection and assistance from
some foreign power.

Burr, according to Merry, then alluded to the possibility of the
inhabitants of the western parts of the United States joining in
this independence movement since Louisiana must always have command
over them because of their rivers joining with the Mississippi. Burr
as usual threw out hints without definitely committing himself. “It
is clear,” commented Merry, “that Mr. Burr (although he has not as
yet confided to me the exact nature and extent of his plan) means to
endeavor to be the instrument of effecting such a connection.”

Merry went on to quote Burr as saying that for obvious reasons the
people of Louisiana would prefer having the protection and assistance
of Great Britain to that of France; but that if His Majesty’s
Government should not think proper to listen to his overture,
application would be made to the Government of France. Burr claimed
that the French Government was eager to embrace such an opportunity and
that, even while at war with England, it could find means for sending
to America the small force that would be needed for the purpose.

As to the military aid from the British that would be required for the
enterprise Burr, according to Merry, thought that two or three frigates
and the same number of smaller vessels, stationed at the mouth of the
Mississippi to prevent its being blockaded by any such force as the
United States could send, and to keep open the communications with the
sea, was all that would be required.

Then Burr came to the vital matter of cost. Merry said Burr conceived
that a “loan” of about £100,000 would be sufficient for the immediate
purposes of the enterprise. Burr went even further to suggest a way to
prevent any suspicion of His Majesty’s Government being involved in the
transaction until the independence of Louisiana had been declared. Such
suspicion would be raised if remittances were made from England to the
United States or if bills were drawn in this country. Burr knew that a
payment of £200,000 was due from the United States to England in the
coming July. He proposed that the British Government appropriate part
of this sum to his plan. If they would do that, Burr told Merry, he
could devise the means to get the money into his possession without its
destination being either known or suspected.

Merry gave no intimation of being surprised at this proposal. If the
British Government had been as naïve as its minister in Washington,
imagine the change in Burr’s declining fortune on finding himself
possessed of the equivalent of approximately $500,000 out of the
British Treasury and under conditions that would prevent the British
Government from confessing its source or protesting any purpose to
which Burr might put it.

Shortly after this interview Burr set out for the West. It will be
recalled that some careless talk, which gave rise to rumors, alarmed
Daniel Clark in New Orleans and caused him to sound a warning to Burr
through General Wilkinson. Merry, who by this time imagined that he
was a party to the intrigue, also heard the rumors and expressed his
anxiety in a letter to Lord Mulgrave who had succeeded Harrowby in the
ministry of William Pitt. He wrote: “... I learn that that gentleman
[Burr] has commenced his plans in the Western country, and apparently
with much success, although it would seem that he or some of his agents
have either been indiscreet in their communication, or have been
betrayed by some person in whom they considered that they had reason
to confide, for the object of his journey has now begun to be noted in
the public prints, where it is said that a convention is to be called
immediately from the States bordering on the Ohio and the Mississippi
for the purpose of forming a separate government.”

There was a more favorable interpretation of the leak which Merry
thought worth mentioning. “It is, however, possible,” he said, “that
the business may be so advanced as, from the nature of it, to render
any further secrecy impossible.” Merry concluded by noting that Burr
had been received everywhere with the most marked attention.

When Burr returned from his western trip in November he lost no time
in calling on the British Minister. Merry faithfully reported their
conversation to Lord Mulgrave in a letter dated November 25. Burr,
according to Merry, opened the conversation by stating that he had
supposed the British Government disposed to give him assistance.
However, continued Burr, the information he had received on this head
was not sufficiently explicit to warrant his sending a confidential
person to London to make the necessary communication as he had promised
to do. He had therefore to content himself by speaking through Merry.

His disappointment at the hesitation of the British Government, Burr
told Merry, had given him the deepest concern because his journey
through the western country and Louisiana as far as New Orleans, not
to speak of a visit to a part of West Florida, had been attended with
so much more success than he had even looked for. Everything, he said,
was completely prepared in every quarter for the execution of his
plan. Therefore he had been induced to enter into an agreement with
his associates and friends to return to them in March to commence
operations.

Again Burr refrained from entering into details with Merry. He thought
enough had been said to start the project and that the rest of the
arrangements could be made through authorized persons he recommended to
accompany the British ships. These would cruise off the mouth of the
Mississippi, commencing April 10 at the latest and continuing there
until the commanding officer should receive information from him or
from Daniel Clark that Louisiana had declared itself independent.

Burr, according to Merry, suggested that his former estimate of naval
strength needed to be increased by a number of smaller vessels since
he had learned on good authority that East and West Florida and other
parts of the Spanish dominions on the North American continent were
impatient for independence. Therefore the increased British force and
whatever he himself could provide would be required for this additional
task.

Burr mentioned no names in his conversation with Merry, contenting
himself with presenting his plans in broad outline. “Throughout the
Western country,” Merry quoted him as reporting, “persons of the
greatest property and influence had engaged themselves to contribute
very largely towards the expense of the enterprise; at New Orleans he
represented the inhabitants to be so firmly resolved upon separating
themselves from their union with the United States, and every way to be
so completely prepared, that he was sure the revolution there would be
accomplished without a drop of blood being shed....”

Merry concluded with Burr’s reference to Wilkinson’s army: “... the
American force in that country (should it not, as he had good reason
to believe, enlist with him) not being sufficiently strong to make any
opposition.” It was accordingly settled that the revolution would begin
at the end of the coming March or the beginning of April, provided
always that the British Government should “consent to lend their
assistance toward it, and the answer, together with the pecuniary aid
which would be wanted, arrived in time to enable him to set out the
beginning of March.”

To spur the British Government to action Burr once more threatened
them with the prospect of the people of Louisiana turning to France.
Then he presented another impelling argument for British help in the
enterprise though at the expense of his own loyalty to his native land.

“He observed,” reported Merry, “what I readily conceived may happen,
that when once Louisiana and the Western country become independent,
the Eastern States will separate themselves immediately from the
Southern; and that thus the power which is now risen up with so much
rapidity in the western hemisphere will, by such a division, be
rendered at once informidable....”

Despite Burr’s pleading and Merry’s indorsement, the British Government
remained apathetic. The last hope of assistance from that quarter
vanished when in January, 1806, William Pitt died and was succeeded as
Prime Minister by Charles James Fox, an avowed friend of the United
States.

Burr, however, had more than one string to his bow. If he could
not wring money from the British he might still try his luck with
the Spaniards. The most convenient victim was Yrujo, the Spanish
Minister. Yrujo had married a daughter of Thomas McKean, signer of the
Declaration of Independence and at the moment Governor of Pennsylvania.
He was well informed as to what was going on in the United States. As
early as the summer of 1805, when Burr was in the West and the rumors
were beginning to fly, he reported to Cevallos, Spanish Minister of
State: “The supposed expedition against Mexico is ridiculous and
chimerical in the present state of things; but I am not unaware that
Burr, in order to get moneys from the English Minister or from England,
has made to him some proposition, in which he is to play the leading
role.”

Having thus early divined Burr’s purpose of extracting money from the
British he should not have been surprised when, six months later,
he found himself the object of financial solicitation. Burr did not
personally approach Yrujo. He sent as his emissary his old friend
Jonathan Dayton, the ex-Senator from New Jersey. The visit took place
in Philadelphia where Dayton was already present and to which Burr
repaired after his last apparently futile appeal to Merry.

Dayton, according to Yrujo’s report to Cevallos, explained that the
reason of his visit was that he had information, known only to three
persons in the country, which he thought would be worth thirty or forty
thousand dollars to the Spanish Government. When Yrujo encouraged him
to proceed Dayton disclosed the story of Burr’s secret conferences with
Merry. It included the plan for taking the Floridas and for effecting
the separation and independence of the western states. The Floridas,
said Dayton, were to be associated with the new federated state, and
for her share in bringing it about England was to receive a preference
in matters of commerce and navigation. The plan, he continued, had
obtained the approval of the British Minister who had recommended it
to his Government. Dayton added that on his trip to the West Burr had
found the people of that section not only disposed toward independence
but also anxious to make an expedition against the kingdom of Mexico.
The proposal, said Dayton, had been well received by the British
Cabinet.

In his previous letter to Cevallos, Yrujo had spoken of Burr’s
proposed expedition into Mexico as chimerical. Surely nothing was more
chimerical than his present plan to help pay for it by frightening the
Spaniards into giving him money for warning him of what was going to
happen to them. General Jackson and other prominent westerners who were
enthusiastic over such an expedition and had hailed Burr as the leader
no doubt would have been astonished had they known that he was thus
divulging his plans to the Spaniards in the hope of getting money from
them.

But in this instance Yrujo was not so easily fooled. He did not believe
that the British Government had fallen for the plan as Dayton asserted.
Yrujo reasoned that, had they done so, Burr and Dayton would not now
be coming to him. He was quite aware that Dayton, while pretending to
betray the plot, had actually been sent by Burr.

Yrujo did not commit himself. He dismissed the ex-Senator courteously,
promising to talk to him again. Burr and Dayton appear to have realized
that they had overplayed their hand. A few days later Dayton paid a
return visit. This time he confessed that Burr’s plan had not been
received with enthusiasm by the British ministry.

Dayton now unfolded another. It was that a certain number of men
were to be introduced into the city of Washington, in disguise and
well armed. At a signal from Burr they were to seize the President,
Vice-President, and the President of the Senate, thus securing the
heads of government. Next they were to take the public money which
was on deposit in the banks in Washington and Georgetown and possess
themselves of the arsenal on the eastern branch of the Potomac and also
the Navy Yard. The vessels would be burned except two or three which
were ready for service. Burr, according to Dayton, hoped to paralyze
the opposition and make favorable agreements with the individual
states. But, failing this, he would board the vessels in the Navy Yard
with his followers and sail for New Orleans and there proclaim the
emancipation of Louisiana and the western states.

In reporting the interview to his Government, Yrujo observed that for
one who did not know the country it would appear almost insane, “...
but I confess, for my part, that in view of all the circumstances it
seems to me easy to execute, although it will irritate the Atlantic
States.... It is beyond question that there exists in this country an
infinite number of adventurers, without property, full of ambition,
and ready to unite at once under the standard of a revolution which
promises to better their lot. Equally certain it is that Burr and
his friends, without discovering their true object, have succeeded
in getting the good-will of these men, and inspiring the greatest
confidence among them in favor of Burr.”

After what Merry imagined to be valiant service for his own country
in abetting the dissolution of the Union, the end of his mission to
the United States was distressing. His correspondence, intended for
Pitt’s ministers, was read by Fox who wrote to Merry accepting his
resignation. It did no good for Merry to protest that he had not
offered his resignation. But even while he waited for his successor to
arrive he sent off one final dispatch warning that if Britain refused
to support Burr’s enterprise recourse would be had to France, and that
even without the help of any foreign power Burr proposed to go ahead.

From the foregoing evidence various conclusions may be drawn.
Apologists for Burr might question the accuracy of the reports sent to
their governments by Merry and Yrujo. It is hard to believe they would
have made them up.

Or, Burr’s proposals may be accepted, as Merry at least accepted them,
at their face value. If so, and had he gone on with his plans, a
substantial charge of treason could be laid against Burr.

Still another conclusion would be to accept Burr’s own protest of
innocence and to assume that the propositions he made to the British
and Spanish governments were dishonest and insincere, merely designed
to wring money from them for services which he never intended to
perform.

Whichever conclusion is accepted, had the reports of Merry and Yrujo
been made public at the time of the trials, one wonders whether in
October, 1807, Aaron Burr would have walked out of the Circuit Court
for the Fifth District of Virginia a free man.




_Chapter_ XXI


The trial ended, those of the principals whose homes were in Richmond
returned to their normal pursuits in the city, while those from a
distance departed to pick up the threads of their various careers
elsewhere. What became of them in later years and what changes were
wrought in the scene of their activities during the long hot summer of
1807 are the proper subject for a closing chapter.

Richmond itself continued to grow and prosper. Its important status
as capital of the State of Virginia, the seat of the administrative
branch of state government, of the legislature and the judiciary, and
its favorable location as a center of commerce contributed toward a
continued activity of which the Burr trial was merely one outstanding
episode.

Prosperity had its reflections in the physical appearance of the
city. As Lawyer Wickham’s practice became more lucrative, and as
his increasing progeny began to tax his domestic establishment, he
bethought himself of building a new house. For this project he engaged
the services of the distinguished young architect Robert Mills. The
result of their combined efforts was the handsome house, with its
graceful spiral stairway, which survives to this day as the home of the
Valentine Museum.

Another actor in the drama, who played a modest role as a member of
the Grand Jury, also took advantage of increasing good fortune to
employ Mr. Mills to build a mansion commensurate with it. Dr. John
Brockenbrough, advanced from cashier to president of the Bank of
Virginia, chose a site on Shockoe Hill on an eminence with a sweeping
view to the east. The new abode was a fitting setting for his wife
Gabriella’s salons. It has been destined to go down in history as the
White House of the Confederacy.

They were but two of many other ambitious houses that altered the
modest, homely face of Shockoe Hill. Even as they were rising, however,
fashion was shifting westward. Within a few decades it was to sound the
death knell of the Hill as a desirable residential quarter.

The only dwelling of distinction which stood there at the time of
the Burr trial and which stands today is the house of Chief Justice
Marshall. Restored and reverently cared for, it enables visitors to
visualize what life on the Hill was like when, under its roof or in the
shade of the trees on the lawn, the master penned his famous opinions.

The master himself and his beloved Molly have moved a few blocks away.
They and their family and friends occupy more restricted quarters in
Shockoe Cemetery. In death as in life fashion predominates. As in
life fashion moved from the Hill to the West End, so in death fashion
has shifted to Hollywood Cemetery. Hollywood, with its presidents and
post-bellum aristocracy, has become a showplace. Only the rare visitor
finds his way through a poor and forgotten quarter to Shockoe.

After his long and arduous experience presiding over the trial the
Chief Justice was in need of a rest and he hurried off to the Blue
Ridge Mountains. In a letter to his friend Judge Peter thanking him
for the gift of a book he revealed his sense of relief: “I received it
while fatigued and occupied with the most unpleasant case which has
ever been brought before a Judge in this or perhaps any other country,
which affected to be governed by laws.”

In those days much of the work of the Supreme Court was conducted on
circuit. So the Chief Justice was able to spend a great deal of his
time on official business in the congenial atmosphere of Richmond.
There, after the indignation of his political opponents over his
conduct of the trial had somewhat died down, he once more enjoyed the
affection and respect of his neighbors.

Even after Mr. Jefferson came to the end of his term of office and
retired to Monticello the feud between the Chief Justice and himself
went on. In the summer of 1821 a series of articles by Judge Spencer
Roane, of the Virginia Court of Appeals, attacking the Chief Justice
and presenting the states’ rights argument against the extension of
Federal power, appeared in _The Enquirer_. In a letter to his colleague
Justice Story, Judge Marshall attributed the vulgarity of their tone
to Roane, but imagined the “acerbity of language increased by his
communications with the Great Lama of the mountains.” And even when
Jefferson died the Chief Justice, kindly though he was in most human
relationships, could not bring himself to the point of expressing
distress or offering a word of praise.

Edmund Randolph, the elder statesman, did not long survive the trial.
That, in fact, was his last memorable appearance. He died in 1813 at
the age of 60 years. By an irony of fate the youngest of the counsel in
the trial was the first to go. The prospects of a brilliant career were
cruelly blasted when Benjamin Botts and his young wife met death in the
burning of the Richmond Theater on December 26, 1811. So, save for his
part in the defense of Aaron Burr, he is best known in local history as
the father of John Minor Botts, a Virginia statesman.

William Wirt’s participation was a prelude to greater achievement. His
distinction as a lawyer increased with the years and he eventually
became Attorney General of the United States in three administrations.
Wirt combined with the law the avocation of a man of letters. He
wrote a life of Patrick Henry and a series of essays under the title
of _Letters of a British Spy_ in which he portrayed some of his
contemporaries. These publications gave him momentary fame. He was
alert to seize any inspiration for a literary composition whether it
was the death of an acquaintance or an early morning stroll.

Of the two warriors who figured in the trial the futures were in
striking contrast. Winfield Scott appeared there only as a youthful
spectator. He won his spurs in the War of 1812 where he proved beyond
a doubt that his natural calling was that of a soldier. Between
military assignments he occasionally returned to Richmond to pursue his
courtship of the lovely and talented Maria Mayo. It was said that he
wooed her as lieutenant, captain, major, and colonel, and finally as
general won her hand. He eventually rose to be Commander-in-Chief of
the United States Army. But when, in that position, he was delegated
the task of invading and conquering his native state, Virginia erased
his name from the list of her distinguished sons and has never restored
it.

The other warrior was Major General James Wilkinson. Battered and
bruised from his experience at the hands of the Grand Jury and counsel
for the defense he returned to the Southwest to resume his command.
When, in the War of 1812, General Dearborn demonstrated beyond any
doubt that he was unequal to the task of commanding the United States
Army of the North, the nation once more in her dire need called on
the leader who, according to his own account, had saved her from the
threats of Aaron Burr.

Wilkinson, with the same lethargy of movement that had characterized
his entry on the scene at the Burr trial, eventually reached the
northern theater in the middle of the summer of 1813. His ensuing
campaign was as disastrous to American arms as that of his predecessor
had been. After a succession of failures he gladly welcomed relief from
command though he had still to face a court-martial. This exonerated
him from blame, which no doubt under the circumstances was a just
decision. The nation at last seemed to have arrived at the conclusion
that it could be saved without intercession of the General. He was
not called on again. The remaining twelve years of life that fate
generously granted him were spent in retirement in Mexico. His position
there, though comfortable enough, was something less than it would have
been had he appeared there as the commander of the conquering army of
Emperor Aaron I.

George Hay who had battled so bravely, if unsuccessfully, for the
Government eventually won his reward as a Republican stalwart. He was
elevated to the bench as Judge of the Federal District of Virginia.
Further to seal his connection with the “Virginia Dynasty,” he took as
his second wife Eliza, daughter of James Monroe.

Hay’s colleague MacRae, following his appearance as counsel for the
prosecution, passed through various vicissitudes of fortune. Soon after
the trial he was appointed American consul in Paris. He remained in
Europe a few years before returning to Richmond. What then happened to
him is obscure. One account has it that he met with financial reverses.
However that may be he disappeared from Richmond, leaving his wife
behind, and never returned. He is reported to have died in England.

Of Andrew Jackson and Washington Irving nothing needs to be said. Their
later careers are too well known to require a recapitulation here.

Following his release on bail to await the action of the Ohio Grand
Jury Colonel Burr set out for the North. He was accompanied by the
ever faithful young Samuel Swartwout, Luther Martin, and Harman
Blennerhassett. Blennerhassett’s excuse was that he was sticking with
the Colonel in the hope of recovering more of his money. Whatever the
reason he seemed always ready to answer the Colonel’s beck and call and
to enjoy his company, however much he might abuse him behind his back.

As they proceeded on their journey the report of the outcome of
the trials in Richmond went ahead of them. It was a report of the
miscarriage of justice painted in the lurid colors of the most extreme
animosity of political partisanship.

The crisis came with the arrival of the party in Baltimore on
November 3. That city was a hotbed of Republicanism and its frequent
emotional outbursts already were conditioning it for the popular name
of “Mobtown.” Handbills had been printed and distributed announcing
the hour for the hanging in effigy of the Chief Justice, Burr,
Blennerhassett, and Martin.

On learning of the proposed demonstration Burr, accompanied by
Swartwout, discreetly embarked in a stagecoach for Philadelphia.
Martin retired to his house where he enjoyed the protection of some of
his law students and other friends who armed themselves and prepared to
resist if the house were attacked.

Blennerhassett repaired to an inn where he was supposed to be
guarded by the police--a doubtful security in the event of a public
demonstration. At the frantic urging of the landlord he sought the
greater safety of the attic and from a window looked down at the
disorderly procession as it passed by the inn.

In the lead was a fife and drum corps playing “The Rogues’ March.”
Behind it came a cart in which were the effigies of the aforesaid
gentlemen on their way to be strung up on Gallow’s Hill. It was a
motley array which the living models for the effigies did well to
escape. Fortunately the demonstration ended without violence or
bloodshed.

Burr was still under indictment in New Jersey and New York despite the
fact that the death of Hamilton had occurred three years before. He
did not therefore dare to show his face in public, but lived in New
York City as a fugitive, cared for by devoted friends, until six months
later he took passage for Europe under an assumed name.

He arrived in London in the middle of July and, because of his former
distinction as well as his personal attractions, he was welcomed by
such accomplished persons as Charles Lamb, William Godwin, and Jeremy
Bentham. Burr was still obsessed with the idea of playing a vital part
in the achievement of independence by the Spanish colonies in America.
He gained an interview with the British statesmen Castlereagh and
Canning and revealed a plan of action, but without obtaining either
their interest or support. On the contrary, for whatever reason,
the official attitude stiffened. His apartment was searched and his
property seized. The property was returned but with it came an order to
leave England. Some people saw in this the avenging hand of Jefferson.

Once more an exile, Burr wandered through Sweden, Denmark, and Germany,
always out of funds, depending on the charity of friends, but still
with enough of the old unconquerable spirit to set down in his diary a
lively record of his various amours.

The Colonel at last reached Paris where he sought an interview with
Napoleon in the hope once more of pushing his plans for exploiting
the Spanish colonies. But the Emperor was too busy with his immediate
problems in Europe to give ear to those of Burr. The latter’s situation
was more desperate than ever. The only recourse left to the outcast was
to return home. The American representatives in Paris, on orders from
Washington, refused him a passport. By one of those odd coincidences
so often encountered in life, one of the American representatives was
Alexander MacRae who so short a time before had sought his conviction
in Richmond.

In these trying days the Colonel, if he ever needed consolation, could
still count on Theodosia. In fact the harder he was treated by the
world the greater was her adulation. It reached its climax in a letter
which she addressed to him in Europe:

“I witness your extraordinary fortitude with new wonder at every new
misfortune. Often, after reflecting on this subject, you appear to me
so superior, so elevated above all other men, I contemplate you with
such a strange mixture of humility, admiration, reverence, love and
pride, that very little superstition would be necessary to make me
worship you as a superior being, such enthusiasm does your character
excite in me.

“When I afterwards revert to myself, how insignificant do my best
qualities appear. My vanity would be greater if I had not been placed
so near you; and yet my pride is our relationship. I had rather not
live than not be the daughter of such a man.”

At last in 1812 the Colonel was permitted to return home. By this time
public opinion even in New York had relented. The war with England and
other more immediate matters served to erase from the public conscience
the Hamilton episode. Burr could resume his practice and his native
brilliance soon restored to him his earlier reputation as a leader at
the bar.

But more tragedy was in store. This time it took the form of domestic
sorrow, as though fate were trying to see what else it could do to
break his indomitable spirit. From Charleston came the distressing
news of the death of Aaron Burr Alston, to whom the grandfather was so
devoted and on whom he had counted to carry on the family tradition.

There was still more to come. Theodosia, stricken with grief and
herself fatally ill, sought solace in the company of her father in New
York. At noon on December 30, 1812, accompanied by her maid, she set
sail from Charleston aboard a vessel named _The Patriot_. Not long
after, a terrific storm blew up on the Atlantic. _The Patriot_ was
never heard of again. The vessel’s fate has continued to be a mystery.

The North Carolina coast in the neighborhood of Cape Hatteras was
notorious in those days for “wreckers,” men who, by the ingenious
shifting of lights on shore, lured ships on the shoals and, when the
ships had broken up, preyed on the wrecks. There were as well rumors of
the operations of pirates. In later years legends sprang up of deathbed
confessions in which Theodosia Burr Alston figured as a victim of one
of these bands of marauders. But convincing proof is lacking.

Whatever his innermost thoughts, Burr accepted this last and bitterest
loss with the stoicism he had shown on earlier occasions. His pride
demanded that he do no less.

Meanwhile retribution had caught up with another figure in the trial.
Luther Martin’s constitution broke down under his persistent and
unrestricted drinking. His law practice fell away. Burr learned of his
condition and repaid him for past favors by giving him asylum in his
home in New York.

Eventually Martin returned to Baltimore, his once brilliant mind
shattered by the steady inroads of senility. He often wandered through
the court rooms which had been the scene of so many of his triumphs, a
drooling derelict, for whose support, in recognition of his great past
achievements, each member of the bar accepted a small annual assessment.

Shortly after the episode in Baltimore Blennerhassett parted company
with Burr and went to join his beloved Margaret in Natchez. He was now
approaching the end of his resources, burdened with an accumulation of
debts, and badgered by insolent and exacting creditors. His library,
research apparatus and the furniture in the mansion on the island had
to be sold. The mansion itself was allowed to go to ruin. It was taken
over along with the rest of the island by a tenant who used them for
the culture of hemp and the manufacture of cordage. It was not long,
however, before the mansion was mercifully rescued from its humiliation
by a fire which leveled it to the ground.

Despairing of ever getting any money out of Burr, Blennerhassett
concentrated on his son-in-law Alston, demanding $35,000 on pain of
publishing a pamphlet disclosing the Governor’s connection with the
conspiracy. Alston, now Governor of South Carolina, is reported to have
given him $10,000. Blennerhassett’s next venture was the purchase of a
cotton plantation in Mississippi. In spite of Margaret’s loyal support
this too was a failure.

At this point the acting Governor of Canada, an old and intimate
friend, managed to find a seat for Blennerhassett on one of the
provincial courts of the Dominion. So in 1819, disposing of what
interest remained to him in the island and the plantation, he moved
with his wife and sons to Canada and took up his residence in Montreal.
But this solution of his problem proved temporary--he was turned out
of office by what he described as the “capriciousness of the British
ministry.”

All that was left to him now were claims to property still existing in
Ireland. So in 1822 the Blennerhassetts set sail from Canada for home.
Nothing came of the claims and, after living for a time with a maiden
sister of Harman’s in England, the Blennerhassetts sought refuge on the
island of Guernsey. That was Blennerhassett’s last move. There he died
in 1831, leaving Margaret with little or no money and two dependent
sons.

In 1842 Mrs. Blennerhassett decided to return to the United States
and petitioned Congress for payment for the boats and stores seized
at Marietta, Ohio, in the winter of 1806–07. On her arrival in New
York with one of her sons, Henry Clay, who was then in the Senate,
interested himself in her case. He described her as living in absolute
want, presented her petition, and advocated its justice. But the
petitioner died before the Senate had time to act.

Thus ended the tragic story of the Blennerhassetts, though they
themselves may not have considered it so. For the love that had been
the cause of their adventures in the new world sustained them to the
last. Yet their later years were a far cry from the romantic dreams
in which Blennerhassett stood at the right hand of the Emperor Aaron
I while Margaret presided as first lady in waiting to the Princess
Theodosia. Such was the heavy penalty the Blennerhassetts had to pay
for Harman, as his partner Woodbridge put it, having “all kinds of
sense except common sense.”

For some fifteen years Aaron Burr continued to practice law in New York
City successfully. At the age of 77 years he had one last romantic
passage which culminated in his marriage to the widow Jumel, for which
nothing good could be said on either side. The episode soon ended in
divorce. Time for the Colonel was now fast running out. Yet how many
of his enemies had he already survived! Death came to him at last in
September, 1836, at the age of 80 years.

The body of Aaron Burr was laid to rest in a grave beside those of his
father and his grandfather in the cemetery at Princeton.

One evening at twilight many, many years later, two visitors stood
at the foot of the grave. Instinctively both of them had removed
their hats as they approached the spot. They were Burr’s biographer
Walter Flavius McCaleb and Woodrow Wilson, then President of Princeton
University. They remained for a moment in silence. It was broken by
Wilson’s voice, pitched very low: “How misunderstood--how maligned--”

This from a historian who must have been acquainted with all the facts.
Even in death, and in spite of the passage of time, Aaron Burr still
exercised his fascination.




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_Index_


  Adair, John, 23, 110, 116, 257

  Adams, Henry, 266

  Adams, John, 11, 22, 47, 48, 107

  Adams, John Quincy, 73

  Agnew, Robert, 154

  Albany, Burr in, 9, 10, 14
    Hamilton in, 14
    Theodosia married in, 148

  Allbright, Jacob, 90, 184, 204

  Allen, Hugh, 250

  Alston, Aaron Burr, 16, 149, 150, 196, 283

  Alston, Joseph, 16, 148, 159, 171, 180, 246, 284
    letter to Pinckney, 150–151, 152

  Alston, Mrs. Joseph. _See_ Burr, Theodosia.

  Alston, William, 148

  Ambler, Jacquelin, 46

  Ambler, John, 74

  Ambler, Mary, 46

  Anderson, Patton, 80, 86, 87

  Anthony, Christopher, 173

  Arnold, Benedict, 9, 104

  _Aurora_, Philadelphia, 13, 55, 56, 202


  Bache, Edward, 202

  Baker, Jack, 167

  Baltimore, anti-Burr demonstration in, 280–281

  Barbary States, 39

  Barbecue Club, 135

  Barbour, James, 73

  Barron, James, 131

  Barron, Samuel, 39

  Belknap, Maurice P., 187

  Bell Tavern, 133

  Bentham, Jeremy, 281

  Bertrand, Mary Anne, 68

  Beveridge, 45

  Beverley, Mumford, 74, 125

  Biddle, Charles, 109

  Biddle, John, 105

  Bissell, Daniel, 86, 163, 250

  Blackstone, 65, 193

  Blair, John, 235, 236

  Blakey, Reuben, 173

  Blennerhassett, Harman, 20, 24, 117
    and Allbright’s testimony, 185
    appearance of, 156
    arrest of, 164, 165
    birth of, 154
    and Burr, 157, 158, 162, 165, 168, 196–197, 202, 203, 246, 251, 252,
            258, 259, 260, 280
    in Canada, 284
    death of, after return to Europe, 284
    debts of, 283–284
    Duane’s visit to, 202
    Eaton appraised by, 177
    estates sold by, 155
    first appearance in court, 168
    funds of, attachment served on, 173–174
    and Graham, 160
    at Harmonic Society, 246, 247
    indicted by Grand Jury, 127
    indiscreet talk by, 159, 160
    island purchased by, 155
    law studied by, 154
    and Love’s testimony, 185
    mansion built by, 155–156
    at Marietta, 155
    money received from Alston, 284
    in New York, arrival in, 155
    niece married by, 154–155
    _nolle prosequi_ entered to indictment of, 242, 248
    in penitentiary, 166, 171–172, 196, 202
      illness of, 233
      Martin’s visit to, 233–234
    postponement of arraignment of, 201, 202
    as “Querist,” 158, 159, 160, 247, 251
    scholarly talents of, 156
    secession discussed by, 158–159
    sister of, 154
    sons of, 156
    and Taylor’s testimony, 180–182
    Theodosia admired by, 150
    at thirty-one, 154
    wife’s portrayal of Burr’s relationship to, 211–214
    and Woodbridge’s testimony, 186–187
    Woodbridge’s view of, 154, 285

  Blennerhassett, Margaret, 20, 150, 154, 155, 162, 283, 284
    appearance of, 156
    Burr received at Blennerhassett Island, 157
    education of, 156, 157, 159
    in Natchez, 164, 185, 283
    servants’ testimony denounced by, 185
    sons of, 157
    Theodosia admired by, 159
    as widow, 284–285

  Blennerhassett Island, 128, 150, 157–160 _passim_, 187, 188, 191,
            205, 237, 239, 242, 249

  Bollman, Justus Eric, 38, 71, 101, 102, 111, 116, 117, 253

  Bollman-Swartwout case, 71, 175, 198, 206, 210, 230, 236, 238, 240

  Bott, Miles, 173

  Botts, Benjamin, 66, 89, 91, 169, 200, 201, 253
    argument at Burr trial, 216–222
    death of, 278

  Botts, John Minor, 278

  Brockenbrough, John, 73, 125, 277

  Brockenbrough, Mrs. William, 247

  Brown, Joseph, 109

  Bruff, James, 118, 257, 258

  Bruin, Judge, 163

  Buchanan, John, 135, 235

  Buckey, 169

  Buell, Maj. Gen., 161

  Burling, Walter, 115, 116

  Burr, Aaron, in Albany, 9, 10
    appearance of, 8, 69–70
    arrest of, 28
    as Attorney General of New York State, 11
    bail set for, 35, 44, 91
    in Battle of Long Island, 9, 10
    at Bayou Pierre, 163
    birth of, 8
    and Blennerhassett, 157, 158, 162, 165, 168, 196–197, 202, 203,
            246, 251, 252, 258, 259, 260, 280
    brother-in-law of, 8, 9, 145
    Bruin visited by, 163
    in Charleston, S. C., 16
    childhood of, 8
    in Cincinnati, 20, 159
    and Clay, Henry, 83, 265
    at Cole’s Creek, Miss., 28
    at Cumberland Island, 163
    and daughter. _See_ Burr, Theodosia.
    Daveiss’ accusation of, 23
    Dayton as emissary to Yrujo, 272–274
    death of, 285
    debts of, 17
    in duel with Hamilton, 14–16, 109
    Dunbaugh’s testimony against, 250–251
    Eaton’s testimony against, 39, 40, 41, 42, 177, 252–253
    European wanderings of, 281–282
    expedition planned by, 78, 80, 160
    extravagance of, 147
    father-in-law of, 11
    forebears of, 8
    in Frankfort, Ky., 21
    Gaines’ testimony against, 257, 258
    before Grand Jury,88 _ff._, 120 _ff._
      and Wilkinson’s arrival, 102, 120
      and Wilkinson meeting, 121
    grandson of, 149, 150, 283
    and Hamilton. _See_ Hamilton, Alexander, and Burr.
    and Harrison, William Henry, 264–265
    houseboats acquired by, 20, 21
    indicted after duel with Hamilton, 16, 17
    indicted by Grand Jury, 127, 174–175
    indiscreet talk by, 159
    and Jackson, Andrew. _See_ Jackson, Andrew, and Burr.
    in jail after Grand Jury indictment, 127, 129, 130, 136, 138, 152, 153
      good treatment of, 136–138
    Jefferson’s accusation of, 25–27.
      _See also_ Jefferson, Thomas, and Burr.
    journey to North, after release on bail, 280–281
    letter to Harrison, 264–265
    letter to Wilkinson, 36–38, 111, 123, 125, 150, 151, 152, 163
    letters to Theodosia, 54, 70, 77, 128, 136–137, 144, 152, 263
    as lieutenant colonel, 9
    at Litchfield, Conn., 8, 9
    in London, 281
    marriage of, to Theodosia Prevost, 10
    at Marietta, Ohio, 20
    Merry’s report on, 267–272, 274–275
    and Mexico, 78, 80
    misdemeanor trial of, “not guilty” verdict at, 248
      and testimony of witnesses following Hay motion, 249–258
      and view of Marshall’s decision on Hay motion, 263
    Morgan’s testimony against, 183–184
    mother of, 8
    in Nashville, Tenn., 21, 22, 76, 80, 83, 116, 159
    in New Orleans, 21, 77
    in New York Assembly, 10, 11
    in New York City, 10, 11, 12, 108
    in New York gubernatorial campaign, 13–14
    as own counsel, 41
    and Pestre, de, 158
    as philanderer, 9
    in Pittsburgh, 20, 111
    in Presidential elections, 11, 12, 50
    at Princeton, 8
    as prisoner of U.S. Army, 7, 28
    in Quebec expedition, 9
    Richmond Hill as country home of, 15, 17, 109, 147, 148
    in St. Louis, 21
    Senate addressed by, 17
    at seventy-seven, 285
    sister of, 8
    at sixteen, 8
    and Smith, John, 83
    son-in-law of, 16, 148, 150, 151, 152
    and Theodosia (daughter). _See_ Burr, Theodosia.
    at thirteen, 8
    treason trial of, Botts’ speech at, 216–222
      Hay’s opening remarks at, 175–176
      Hay’s turn after Botts, 222–225
      jurymen picked for, 168–170, 172–173
      Lee’s speech at, 225–226
      MacRae’s opening statement for prosecution, 203–206
      Marshall’s opinion on issues of, 236–241
      Martin’s speech at, 226–232
      “not guilty” verdict at, 241–242
      Randolph’s attack on doctrine of constructive treason, 198–200
      testimony of witnesses at, 176–177, 179–188, 198
      Wickham’s motion proffered at, 188, 190–195, 197–198
      Wirt’s accusation at, 206–215
    Truxton’s friendship for, 179
    Truxton’s testimony against, 178–180
    uncle of, 8
    in United States Senate, 11
    as Vice-President of U.S., 11, 13, 17, 109, 148
    and Washington, George, 9, 10
    wife of, 10, 145
    and Wilkinson. _See_ Wilkinson, James, and Burr.
    and Williamson, 267
    women’s education advocated by, 146
    and Yrujo, 272, 273, 274, 275

  Burr, Esther Edwards, 8

  Burr, John, 8

  Burr, Sally, 8

  Burr, Theodosia (later Mrs. Joseph Alston), 10, 16, 129, 196, 282
    birth of, 145
    and Blennerhassetts, 150, 159
    education of, 146–147, 148
    faith in father, 149
    gifts to imprisoned Blennerhassett, 171
    girlhood of, 145–146
    as hostess at ten, 147
    and husband, affection for, 149, 150
    letters from father, 54, 70, 77, 128, 136–137, 144, 152, 263
    lost on ship _Patriot_, 283
    marriage of, 148
    Martin’s admiration for, 227
    in Richmond, 153
    at seventeen, 148, 150
    son of, 149, 150
    suitors of, 148

  Byrd, William, 31


  Cabell, Joseph Carrington, 64, 73

  Cabell, William H., 67, 130, 133, 135, 247

  Cade, Jack, 263

  Calvo, de, Casa, 108

  Campbell, George W., 77, 78, 84

  Canning, 281

  Carr, Dabney, 134

  Carrington, Edward, 170, 173, 241, 242

  Carrington, Eliza, 172

  Carter, Mary Walker, 64

  Castlereagh, 281

  Cevallos, 273

  Charleston, S. C., Burr in, 16

  Chase, Samuel, 17, 35, 42, 51, 65, 69, 92, 223, 225, 267

  _Chesapeake-Leopard_ incident, 131, 133, 134, 135

  Chevallié, Mrs. Jean Auguste Marie, 173, 247

  Claiborne, William C. C., 21, 82, 84, 107, 114, 116, 117, 256

  Clare, de, Bago, 230

  Clark, Daniel, 110, 111, 269

  Clay, Henry, 83, 164, 265, 284

  Clinton, DeWitt, 13, 17

  Clinton family, 12, 13

  Coffee, John, 80, 82, 83, 159, 162

  Coke, Lord, 65, 192, 210

  Coleman, Henry E., 173

  Conestoga wagon, 18, 49

  _Constellation_, 63, 178

  Conway, Cabal, 10, 105

  Cooper, Thomas Abthorpe, 141

  Cresap, Maria, 92

  Cresap, Michael, 92

  Crouch, Jasper, 136

  Cumberland Island, 163

  Curd, Richard, 173

  Cushing, Thomas, 112, 114


  Dacre, Lord, 205, 228

  Dane, Edmund P., 187, 249

  Daniel, William, Jr., 74, 125

  Darmstadt, Joseph, 48, 49

  Daveiss, Joseph Hamilton, 22, 128
    Burr accused by, 23, 83
    Jefferson warned against Wilkinson by, 114

  Davis, Matthew L., 10

  Dayton, Jonathan, 20, 111, 125, 127, 272, 273, 274

  Dearborn, Secretary, 85, 108, 114, 118, 257

  Decatur, Stephen, 63

  Declaration of Independence, 46, 134, 135

  Dickinson, Charles, 79

  du Bois, Abbé, 235

  Duane, William, 13, 55, 202

  Dunbaugh, Jacob, 90, 250, 251


  Eagle Tavern, 7, 29, 31, 32, 133, 194, 196

  Eaton, William, 36, 38, 39, 40, 42, 56, 63, 72, 169, 186
    testimony of, 176, 177, 201, 204, 252–253

  Edwards, Jonathan, 8, 33, 73

  Edwards, Timothy, 8

  Eggleston, Joseph, 71, 72, 73

  Ellicott, Andrew, 107

  _Enquirer, The_, 54, 55, 56, 58, 60, 84, 122, 125, 132, 141, 229,
            233, 278

  Erwin, Joseph, 79


  Fairlee, Mary, 140, 141

  Federalists, 11, 12, 13, 14, 32, 47, 48, 56, 80, 232, 246, 265

  Floyd, Davis, 127, 128, 162, 164

  Folch, Don Vincente, 107, 108, 118, 119

  Fort, Captain, 81, 82

  Fort Massac, 21, 86, 110, 163, 250

  Foushee (Ritchie), Isabella, 55

  Foushee, William, 55, 133, 135

  Fox, Charles James, 272, 274

  Frankfort, Ky., _Western World_ in, 22, 83, 113

  Franklin, Benjamin, 202

  Fredericksburg, Va., 7, 29

  Fries case, 223, 225


  Gaines, Edmund Pendleton, 28, 121, 257

  Gallatin, Albert, 12, 114

  Gamble, John, 133

  Gamble, Mrs. Robert, 138, 233, 246

  Gamble, Robert, 67, 129

  Garnett, James Mercer, 73

  Gates, Horatio, 10, 105

  Gaunt, Elizabeth, 193, 204

  _Gazette and General Advertiser_, 55, 56, 232

  Giles, William B., 13, 38, 52, 63, 71

  Godwin, William, 281

  Graham, John, 24, 121, 159, 160, 182, 251, 252

  Grainger, Gideon, 243

  Grattan, Catherine, 138

  Graves, Benjamin, 173

  Gray House, 67, 68, 129, 138

  Graybill, 100, 101

  Greene, Nathanael, 104

  Griffin, Cyrus, 68, 69, 167

  Griffin, Leroy, 68


  Hamet, Pasha of Tripoli, 39

  Hamilton, Alexander, 47
    and Burr, 10, 11
      duel with, 14–16, 109
      opinion of, 12, 14
      opposed in New York gubernatorial election, 13–14
    and Washington, 11

  Hancock, John, 9

  Harmonic Society, 246, 247

  Harrison, Henry William, 264

  Harrison, Thomas, 74

  Harrowby, Lord, 267, 268, 269

  Hay, Anthony, 33

  Hay, George, 32–36 _passim_, 42, 44, 66, 74, 89, 90, 93, 94, 95,
            98, 101, 102, 120, 133
    and choice of jury, 167, 169, 172
    opening remarks to jury, 175–176
    remarks after Botts’ speech, 222–225
    report to Jefferson, 243
    request by, after “not guilty” verdict, 242
    ultimate move of, to commit conspirators in Ohio, 249
    and “Virginia Dynasty,” 280
    Wilkinson appraised by, 262

  Hays, Stokely D., 84

  Henderson, Alexander, 251, 253

  Henry, Patrick, 49, 278

  Hermitage, 77, 81, 82, 83, 84

  Hosack, Davis, 14, 15

  House of Delegates, as scene of denominational co-operation, 235

  Howe, Purley, 198


  impressment, by British Navy, 131

  _Intelligencer_, 55, 56

  Irving, Washington, 64, 73, 93, 148, 172, 280
    Burr-Wilkinson encounter described by, 121–122
    on Burr’s imprisonment, 138–139
    on ladies’ attitude toward Burr, 137–138
    letter to Miss Fairlee, 140–141
    letter to Paulding, 139

  Irving, William, 64

  Isham, Mary, 33, 45, 65, 174

  Israel, General, 56

  Iturrigary, de, José, 116


  Jackson, Andrew, 53, 280
    and Burr, 78, 79, 80, 160, 162, 163
      defense of, 75, 87
      letter from, 78–79
      meeting with, in Nashville, 21, 76–77, 159
      suspicions of, 82, 83, 84
    and Jefferson Administration, break with, 87
    letter to Campbell, 78, 84
    letter to Dearborn, 85–86
    Spanish policy of, 78, 80–81
    in War of _1812_, 87
    and Wilkinson, opinion of, 82, 86, 115

  Jackson, Rachel, 77, 83, 84

  Jefferies, Judge, 193, 229

  Jefferson, Peter, 45

  Jefferson, Thomas, 12, 13, 30, 38, 41, 43, 44, 47, 54, 80
    appearance of, 45
    Botts’ criticism of, 221
    and Burr, 13, 22, 23, 24
      accused of conspiracy, 25–27, 28, 29, 52, 111
      Graham assigned to pick up trail of, 159
      Hay’s report on trial of, 243
      zeal to win conviction against, 101–102
    death of, 278
    Declaration of Independence authored by, 46
    elected President, 11
    Florida’s acquisition sought by, 19–20, 78
    on Graybill letter, 100–101
    and Jackson, excoriation by, 75
      loyalty of, 84
      offer of services by, 81
    on _Leopard-Chesapeake_ incident, 132
    letter to Giles, 52–53
    letter from Hay, 262
    letters from Wilkinson, 112–114, 115, 116, 121, 123–124, 125, 248
    and Marshall, 44, 45, 49, 50, 52, 53, 244, 278
      reply to, on subpoena, 98–100, 102
      subpoena issued by, 97, 102
    Martin’s comments on, 255, 256
    Merry’s informal reception of, 266
    “Notes on Virginia” by, 92
    proclamation broadcast throughout West, 25, 163
    retirement of, 278
    during Revolution, 46
    Wilkinson as protégé of, 107, 108, 109, 118, 126
    Wilkinson cautioned against wholesale arrests, 117–118
    Wirt introduced to, 67

  Jeffersonians, 10, 20, 25, 32, 34, 47, 72, 73

  Jones, Shelton, 135

  Jumel, widow, 285


  Kentucky, separatist movement in, 19

  King, Rufus, 266


  _La Vengeance_, 63, 178

  Lamb, Charles, 281

  Lambert, David, 173

  Latrobe, Benjamin H., 67, 129

  Lee, Charles, 174
    speech at Burr trial, 225–226

  Lee, Henry (Light Horse Harry), 72

  _Leopard-Chesapeake_ incident, 131, 133, 134, 135

  Lewis, Morgan, 13, 14

  _Life of Washington_, Marshall’s, 59

  Lindsay, Chandler, 250

  _L’Insurgente_, 63, 178

  Lisle, Alice, 193, 204, 229

  Litchfield, Conn., Burr at, 8

  Livingston family, 12, 13

  Long Island, Battle of, 9, 10

  Louisiana Purchase, 19, 78, 107

  Love, Peter, 185, 186

  Lyon, Peter, 173


  McCaleb, Walter Flavius, 285

  MacDonald, Flora, 193

  McDowell, James, 249

  McKean, Thomas, 272

  MacRae, Alexander, 68, 97, 98, 167, 222, 249, 255, 280, 282
    opening statement for prosecution, 203–206

  Madison, James, 49, 53, 87, 101, 114, 243, 266

  Marietta, Ohio, 155, 158, 159, 161, 186, 247, 284

  Marshall, Humphrey, 22

  Marshall, John, 22, 32, 35, 42, 68, 69, 90, 94, 96, 129, 130, 167, 169
    appearance of 34, 45, 70
    at Barbecue Club, 135–136
    Bollman-Swartwout case clarified by, 236–238, 240
    as Federalist, 47
    final opinion on testimony in Burr hearings, 261–262
    house of, 277
    and Jefferson. _See_ Jefferson, Thomas, and Marshall.
    _Life of Washington_ by, 59
    and Marbury-Madison case, 51
    marriage of, 46
    named as Chief Justice, 48
    opinion on commitment for treason, 43–44
    opinion on Eaton’s testimony, 176
    opinion on issues of Burr trial, 236–241
    Ritchie’s attack on, 59–61
    ruling on “not guilty” verdict in Burr trial, 242
    as Secretary of State, 48
    and Wickham, John, 58, 60
    Wirt complimented by, 215

  Marshall, Thomas, 45

  Martin, Luther, 88, 91, 92, 95, 100, 123, 129, 130, 167, 196, 200,
            225, 242, 246, 255, 280
    argument at Burr trial, 226–232, 233
    Blennerhassett visited by, 233–234
    deterioration of, 283
    Jefferson attacked by, 255, 256

  Mason, George, 49

  Massachusetts colony, 8

  Mayo, Maria, 279

  Mayo, William, 31

  Mead, David, 165

  Meade, Cowles, 163, 164

  Meigs, Return Jonathan, 161

  Mercer, Hugh, 173

  Mercer, John, 64, 74

  Merry, Anthony, 266
    report on Burr, 267–272, 274–275

  Mexican Association, 21

  Mexico, 78, 80, 116, 179, 181, 186, 261, 262, 272
    Wilkinson’s comment on, 109
    Wilkinson’s retirement in, 279

  Miller, Israel, 198, 249

  Mills, Robert, 276, 277

  Miro, Esteban, 106, 119

  Monmouth, Battle of, 10

  Monmouth’s Rebellion, 192–193

  Monroe, James, 124, 280

  Montesquieu, quoted by Randolph, 198

  Montgomery, General, 9

  Monticello, Va., 96, 243, 278

  Montpelier, 243

  Moore, Tom, 34, 198

  Morgan, George, 183, 184

  Morgan, John, 183

  Morgan, Thomas, 184

  Morrison, Hamilton, 172

  Moss, John, 196

  Moxley, Samuel, 250

  Mulgrave, Lord, 269, 270

  Mulholland, John, 250


  Nashville, Burr in, 21, 76–77, 80, 83, 116, 159

  _National Intelligencer_, 55, 56

  Neville, General, 184

  New Orleans, 82
    Burr in, 21, 77
    Wilkinson in, 116–117, 118

  New York _American Citizen_, 13

  New York City, Burr in, 10, 11, 12, 108
    Tammany Society in, 11
    Washington in, 9

  Newark, N. J., Burr born in, 8

  Nicholas, Wilson Cary, 70, 71

  Nicholson, Joseph H., 120, 123, 124


  Ogden, Peter, 111, 116, 127

  Ogilvie, James, 65, 66

  Ohio _Gazette_, 158

  Overton, John, 80


  Parker, Richard E., 173, 185, 242

  _Patriot, The_, 283

  Paulding, James K., 64, 139

  Pegram, Edward, 74

  Pendleton, Nathaniel, 14, 15

  Perkins, Nicholas, 7, 28, 29, 32, 35

  Pestre, de, Julien, 158

  Phelps, Hugh, 160, 162

  Pinckney, Charles, 150

  Pinckney, Cotesworth, 50

  Pitt, William, 270, 272, 274

  Pleasants, James, 73

  Poole, Simeon, 187

  Prevost, Judge, 257, 259

  Prevost, Theodosia Bartow, 10, 145

  Princeton University, 8, 91, 285

  Putnam, General, 9


  Quebec, Burr in expedition against, 9

  “Querist,” 158, 159, 160, 247, 251


  Randolph, Edmund, 32, 33, 34, 41, 65, 66, 89, 90, 167, 171
    on common sense, 199, 200
    on constructive treason, doctrine of, 198–200
    death of, 278

  Randolph, John, 25, 65, 72, 73, 74, 120, 123, 184
    Wilkinson denounced by, 124–125

  Randolph, Mrs. David, 57, 260

  Randolph, Peyton, 133, 170

  Randolph, William, 33, 45, 65, 174

  Rayden, 205

  Read, Captain, 84

  Reeve, Tapping, 8, 9, 145

  Republicans, 12, 13, 14, 17, 20, 22, 47, 48, 51, 87, 109, 280

  Richmond, Va., 7, 29, 30–31, 33, 57, 141 196
    growing prosperity of, 276
    indignation in, at _Leopard-Chesapeake_ incident, 132–133
    July 4 celebrated in, 134–135
    penitentiary in, 129, 130
    subpoena issued to Jefferson in Federal Courthouse of, 102

  Richmond Hill, 15, 17, 109, 147, 148

  Ritchie, Archibald, 54

  Ritchie (Foushee), Isabella, 55

  Ritchie, Thomas, 54, 55, 57–61 _passim_, 122, 125, 133, 229
    Burr-Wilkinson encounter described by, 122

  Roane, Mary, 54

  Roane, Spencer, 52, 54, 133, 278

  Roberts, Judge, 184

  Robertson, David, 65, 193, 194, 215, 222

  Rodney, Caesar, 32, 42, 53, 66, 118


  Saint-Mémin, de, Charles Balthazer Julien Ferret, 142, 143

  St. Simon’s Island, Ga., 16

  _Salmagundi_, 64, 139

  Schuyler, General, 11

  Scott, Joseph, 32

  Scott, Winfield, 65, 70, 133–134, 279

  Shaw, Commodore, 257

  Shephard, Alexander, 74

  Sheppard, James, 173

  Sheppard, John M., 173

  Shockoe Hill, 57, 68, 74, 141, 196, 277

  Smith, Israel, 127, 128

  Smith, John, 20, 83, 127, 264

  Society of the Cincinnati, 14

  Spanish Plot, 19, 106

  Storrs, Jervis, 169, 170

  Stuart, John, 68

  Sully, Thomas, 31

  Swan Tavern, 31, 129, 196

  Swartwout, John, 16, 82, 111

  Swartwout, Samuel, 16, 38, 71, 101, 111, 112, 116, 117, 123, 127,
            175, 253, 254, 261, 280


  Tammany Society, 11

  Taylor, Peter, 90, 180, 185, 197, 204

  Taylor, Robert Barraud, 74

  Tazewell, Littleton Waller, 73, 74

  Tennessee, separatist movement in, 19

  Throgmorton, Nicholas, 192, 229

  Tiffin, Edwin, 27, 160, 161

  Tilghman, Judge, 184

  Tripoli, 177, 178

  Truxton, Thomas, 63, 178
    testimony of, 179–180, 201

  Tucker, George, 60, 61

  Tucker, St. George, 192

  Tupper, Edward, 184, 185

  Tyler, Comfort, 117, 127, 128, 160, 161, 164, 198, 214, 217


  United States population (1800), 18


  Valentine Museum, 276

  Valley Forge, 10

  Van Ness, William P., 14, 15

  Vanderlyn, John, 64

  _Vindication of the Rights of Women_, 146

  Virginia, 45, 62
    alarm in, over slave uprising, 56

  “Virginia dynasty,” 67

  _Virginia Gazette and Daily Advertiser_, 125, 261


  Wallis, John, 230

  War of _1812_, 87, 121, 279

  Washington, George, 46, 47, 64
    and Burr, 9, 10
    Conway Cabal against, 10, 105
    and Hamilton, 11
    and Wilkinson, 106, 107

  Washita lands, 27, 78, 185, 249, 250, 252, 262

  Wayne, Anthony, 106, 107

  Welch, Stephen S., 250

  _Western World_, 22, 83, 113

  Whiskey Rebellion, 206, 228

  White House of Confederacy, 277

  Wickham, Eliza, 55, 57

  Wickham, John, 32, 34, 41, 44, 57–60 _passim_, 66, 89, 95, 167, 254
    house built by, 276
    motion proffered by, 188
      defense of, 190–195, 197–198

  Wickham, William, 66

  Wilkinson, Ann, 105, 109

  Wilkinson, James, 27, 38, 40, 42, 53, 62
    and Bollman, 101, 116
    Bruff’s accusation against, 118, 257, 258
    and Burling, 115, 116
    and Burr, 21, 23, 26, 28, 29, 41, 98, 170, 179
      betrayal of, 112, 119, 163
      first meeting with, 104
      friendship with, 109, 110, 111
      at Grand Jury hearing with, 102, 120–126
      letter from, 36–38, 111, 123, 125, 150, 151, 152, 163
      testimony at trial of, 253–254, 256, 257
      visits to, 108, 109
    Claiborne warned by, 115
    in Conway Cabal, 105
    extravagance of, 105, 106
    Folch’s exoneration of, 118–119
    Jackson’s view of, 82, 86
    Jefferson’s support of, 107, 108, 109, 118, 126
    letters to Jefferson, 112–114, 115, 116, 121, 123–124, 125, 248
    in Louisiana Purchase ceremonies, 107
    MacRae’s praise of, 203–204
    marriage of, 105
    military career of, 104 _ff._
    in New Orleans, 116–117, 118
    as “Number Thirteen,” 106
    Randolph’s view of, 124–125
    retirement of, 279
    son of, 108, 109, 121
    Spanish payments to, 108
    in Spanish Plot, 106
    Swartwout’s encounter with, 261
    in War of _1812_, 279
    in Washington, 108, 109
    and Washington, George, 106, 107

  William and Mary College, 33, 74

  Williamson, Colonel, 267, 268

  Willie, Charles, 158

  Wilmer, George, 67

  Wilson, Woodrow, 285

  Winthrop, John, 8

  Wirt, William, 68, 89, 95, 96, 130, 133, 134, 167, 187, 200, 251, 255
    appearance of, 66
    as author, 278
    Burr accused by, 206–215
    Burr-Blennerhassett relationship portrayed by, 211–214
    career of, 67, 278
    on Marshall’s integrity, 243
    as U.S. Attorney General, 278
    Wythe defended by, 67–68

  Woodbridge, Dudley, 154, 158, 161, 285
    testimony of, 186–187

  Woolstonecraft, Mary, 146

  Wythe, George, 45, 67, 93


  Yrujo, de Casa, 266, 272, 273, 275




  $5.00

SHOUT TREASON

_The Trial of Aaron Burr_

_by_

FRANCIS F. BEIRNE


In 1807, Aaron Burr, former Vice-President of the United States and
an eminent if controversial political figure, was tried for treason
in Richmond, Virginia. He was accused, by no less a personage than
President Thomas Jefferson, of plotting to separate the states beyond
the Alleghenies, conquer Mexico, and establish an empire in the West.

Presiding over the Federal Court of Appeals was Chief Justice John
Marshall, ardent Federalist and foe of Jeffersonian Republicanism. The
trial of Aaron Burr reflected the bitter feud between these historic
political factions; his acquittal was a victory for John Marshall in
his opposition to the President tempered--at least from the defendant’s
point of view--by the jury’s equivocal verdict of “not proven guilty.”


[Illustration: FRANCIS F. BEIRNE is a resident of Baltimore, editorial
writer for the well-known _Sun_ papers, and under the pen name of
Christopher Billopp writes a column for the _Baltimore Evening Sun_.
He is, however, a native of Virginia, a graduate of the University of
Virginia, and was a Rhodes Scholar to Oxford University, 1911–1914.

Other books by Francis Beirne include _The War of 1812_, _The Amiable
Baltimoreans_ and the commentary for _Baltimore, A Picture History_.]

Francis Beirne has captured in this absorbing book the drama of the
trial itself, the undercurrents of personal and political rivalries,
and the color and atmosphere of the capital of Virginia during that
summer, 150 years ago, when the eyes of the nation were turned upon
it. A glittering array of personalities was brought to Richmond by
the trial, among them John Randolph of Roanoke, Andrew Jackson,
General James Wilkinson, Washington Irving, Winfield Scott, and Burr’s
beautiful daughter, Theodosia. As compelling as any is the profile of
Aaron Burr himself, brilliant, resourceful (he acted frequently in his
own defense), but also somewhat mysterious and erratic--a fascinating
character in the nation’s history.


  _Hastings House Publishers_
  _New York 22_




Transcriber’s Notes


Punctuation and spelling were made consistent when a predominant
preference was found in this book; otherwise they were not changed.

Simple typographical errors were corrected; occasional unbalanced
quotation marks retained.

Ambiguous hyphens at the ends of lines were retained; occurrences of
inconsistent hyphenation have not been changed.

The Plain Text version of this eBook omits indications of a
non-descript decorative headpiece at the top of each chapter and other
major sections of the original book.

Index not checked for proper alphabetization or correct page references.

Page 172: “Tuesday, August 11,” was misprinted as “Thursday”.





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