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.

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