Standing out conspicuously in that dense throng was still another

youth. His height alone would have distinguished him, for he was 6 feet

4½ inches tall. Not content with looking over the heads of the crowd he

climbed up on the great lock of the entrance door of the hall in order

to get an unobscured view of the proceedings. From his perch he had a

good look at the accused. Colonel Burr saw him, too. The young man was

Winfield Scott. Years later, when he had become one of the nation’s

great soldiers, the two met again and Burr reminded the general of the

encounter. Contemporaries described Scott as the most magnificent youth

in all Virginia.

At the time of the trial young Scott was reading law in the office of

David Robertson, of Petersburg. Not only was Robertson well grounded in

Blackstone and Coke and the intricacies of the Virginia statutes, he

also was an accomplished linguist with a knowledge of five languages.

What is more, he had trained himself to take notes in shorthand, and

he was present at the trial to record the proceedings. Thanks to David

Robertson, posterity has in two fat volumes a reliable verbatim account

of much that was said at the trial. It was at Robertson’s suggestion

that young Scott came to Richmond to get a first-hand impression of the

leaders in what he then intended to be his chosen profession.

Better known to the Richmonders of the day than he was to be known

to posterity was a queer Scotsman named James Ogilvie who was to

be a regular attendant at the sessions. According to local gossip

he was heir to an earldom and had passed up the title to become an

impoverished schoolteacher in Virginia. Elocution was his forte and he

not only came to the trial himself but brought his pupils along so that

they could have a practical demonstration of the art of oratory from

the greatest practitioners of the day. Ogilvie was in bad repute with

the local clergy. Either an atheist or an agnostic, he traveled about

delivering “infidel lectures.” He was blamed for shaking the religious

faith of a number of Virginia’s young men. But the Devil got him in

the end. As an elocutionist he failed to live up to his own exacting

standards, grew melancholy, and committed suicide. Or so it was said.

A less romantic account of his death attributed it to an overdose of

laudanum, a drug to which he had become addicted.

On this day there were new faces both among the counsel for the defense

and for the prosecution. Now associated with Edmund Randolph and

John Wickham was Benjamin Botts, the youngest lawyer on either side,

bubbling over with the wit and sprightliness of youth. Already he had

made his mark at the Virginia bar.

When Caesar Rodney peremptorily retired from the case President

Jefferson at once recognized that the plodding District Attorney Hay

needed reinforcement. William Wirt seemed the ideal choice; the summons

went out from the White House and Wirt accepted. Wirt’s Swiss and

German background, which he inherited respectively from his father

and his mother, showed itself in his curly blond hair, his blue eyes,

and his fair complexion. He was built in heroic proportions, over six

feet tall, broad-shouldered, with thick eyebrows, a wide forehead,

a prominent nose, and ample chin. With his agreeable countenance he

combined rare good humor and graciousness. A young woman who came

under his spell remarked that Wickham was handsome but that he seemed

insignificant in contrast to the manly beauty of Wirt. The same young

woman observed that while Wickham went out of his way to please he

could not suppress an air of condescension. Wirt, on the other hand,

contrived to give the flattering impression, not that he was trying to

please, but that he himself was being entertained.

Like Hay, Wirt was self-made. His father, too, was an innkeeper in

the 1770’s, at Bladensburg, Maryland, a few miles north of the future

site of the national capitol. At an early age William was left an

orphan, but from the start he had the gift of making friends. Among

other accomplishments he sang and played the violin. His schooling

completed he read law, moved to Virginia, and was admitted to practice

in Culpeper County. There he met and married a daughter of Dr. George

Wilmer, a man of prominence in the community and a friend of Thomas

Jefferson. Through his father-in-law Wirt was introduced to Jefferson

and also to Madison and Monroe and was an ardent follower of what was

known in the political world as “the Virginia dynasty.”

These early associations, combined with his own superior talents,

played an important part in the fashioning of Wirt’s career. Five years

after their marriage Wirt’s young wife died and the rising young lawyer

moved to Richmond. For a time he held the office of clerk of the House

of Delegates, then served briefly as Chancellor of Virginia. He was a

frequent visitor at Gray House, the home of Colonel Robert Gamble, a

prosperous merchant. This imposing dwelling, on a hill overlooking the

James River and commanding an extensive view of the river valley and

the rolling country of Chesterfield County on the other side, had been

built for Colonel Gamble by Benjamin Latrobe, an architect recently

arrived in this country from England. In 1802 Wirt took as his second

wife Colonel Gamble’s daughter Elizabeth, and through that connection

became the brother-in-law of Governor William H. Cabell who married

Elizabeth’s older sister Agnes.

Wirt was well known to the Richmond bar where he had appeared in a

number of important cases. A notable one was in defense of the nephew

of Chancellor Wythe, law teacher of Jefferson and Marshall. The nephew

was charged with the murder of his uncle by putting arsenic in his

coffee. Wirt was reluctant to take the case and did so only under a

sense of duty. He handled it so successfully that the nephew was

exonerated. If that constituted a gross miscarriage of justice, as

many then believed, the blame could not be put on Wirt. He was now

to have an equally spectacular chance to show whether he would be as

good a prosecutor as he had been a defender. At the time of the trial

the Wirts were sharing the Gray House with the Gambles senior and the

Cabells. It was a gay and accomplished household.

Present also with the prosecution was Alexander MacRae, who held the

honorable office of Lieutenant-Governor of Virginia. One of the seven

sons of a Scotch parson who was an ardent Tory in the Revolution,

MacRae showed his independence by embracing the American cause and

ending as an equally ardent Republican. He had a reputation at the

local bar for a sharp tongue and a sour disposition. One observer

remarked that where Wirt used a rapier MacRae’s favorite weapon was a

meat axe. In contrast to Wirt’s bonhomie MacRae gave the impression of

being completely indifferent to popularity. MacRae was among the elect

in residence on Shockoe Hill. His house was within a stone’s throw of

those of the Chief Justice and Mr. Wickham. Neighborly though they may

have been, neighborliness did not extend to Mr. MacRae being included

in Mr. Wickham’s notorious dinner.

So dense was the crowd in the courtroom that it was with difficulty

that Chief Justice Marshall, clad in his robes of office, made his way

to the bench. He was accompanied by Judge Cyrus Griffin, of the Federal

district court, who sat with the Chief Justice throughout the trial.

Cyrus Griffin was no ordinary man. He was fortunate in being born the

son of Col. Leroy Griffin, of Lancaster County, Virginia, and his wife,

Mary Anne Bertrand. His parents sent him to be educated in England, a

privilege that was reserved for the sons of the well-to-do. He studied

law in the Temple, then met and married Lady Christina, daughter of

John Stuart, sixth Earl of Traquair, in the Scottish peerage. On his

return to this country, in spite of his years in England and his

Scottish wife, he adhered to the American cause, was elected to the

Continental Congress, and for a time served as its president. In

politics he was a Federalist.

Now he sat beside Chief Justice Marshall. Once in the course of the

long trial the Chief Justice inquired of Judge Griffin about past

procedure, in a minor incident leading up to the trial, on which his

recollection was vague. From Judge Griffin he received an answer. If

the Chief Justice ever deferred to him again, if the Chief Justice so

much as asked his colleague how he was bearing up under the heat, the

record is silent on the matter.

At the time of the trial Judge Griffin had been on the Federal bench

for 18 years. In the course of that long service there were many times

when he had had to render decisions. In rendering them he must perforce

have had to think. Cyrus Griffin was not a wax effigy. There must have

been a heart beating under his judicial robes. He must have taken pride

in his office. But if the Chief Justice, other than on the occasion

mentioned, reflected that it would be considerate at least to make a

pretense of consulting his fellow jurist, the record does not show it.

All we are told is that Judge Griffin sat on the bench with the Chief

Justice. So he goes down in history as a footnote. But he should be a

footnote in heavy black type. For in his humble position in that famous

trial he was the perfect symbol of all the poor mortals whose fate it

is to be just important enough to occupy a place on the stage, but to

be given no speaking lines and to serve merely as background for the

star performers.

But the chief object of attention was the prisoner at the bar. To many

there Burr was already a well-known figure; others were seeing him for

the first time. They craned their necks out of curiosity to learn what

manner of man this was who had set to work to carve an empire in the

Southwest and in so doing disrupt the nation. If Burr had been denied

the opportunity to arrange the setting dramatically, as he had done

for the impeachment proceedings against Justice Chase, he still was at

liberty to give attention to his personal appearance. He had selected

a suit of fine black silk and he wore his hair powdered, a picture of

scrupulous neatness. His manner was calm, collected, and dignified,

his mind apparently concentrated on the proceedings and indifferent to

the stares of the curious. To Winfield Scott, who was watching him from

the far end of the hall, he looked “as composed, as immovable as one of

Canova’s living marbles.”

Impressive too was the Chief Justice. His admirers had accustomed

themselves to the carelessness of his dress. They centered their

attention on his majestic head, without a single gray hair, set on

broad shoulders, his ruddy weather-beaten face, his dark luminous eyes

approached in beauty only by the hazel eyes of Burr. It was frequently

remarked during the trial that never before had two such pairs of eyes

beheld each other.

Marshall’s friends spoke of him as the soul of dignity and honor,

prudent, courageous, immovably resolute to do the right, “the

Washington of the Bench.” Not so the champions of Jefferson. They saw

him on the contrary as “suave, almost unctuous, wearing the mask of

impartial benevolence” which was “to slip conspicuously more than once

in the course of the trial ... revealing a partisan as malevolent as

any that Jefferson ever faced.”

When the courtroom had quieted down proceedings were opened by the

clerk calling the names of those who had been summoned for the Grand

Jury. Burr was on his feet at once. He lost no time in making it clear

that he was going to act as his own counsel. Learned in the law and

thoroughly at home with court procedure he was not going to hesitate to

interpose when he saw a chance to make a point in his favor. When he

spoke his remarks were crisp and to the point.

Selection of the jury was now the object of his attention. Only a week

before Burr had written to Theodosia: “The grand jury is composed of

20 Democrats and 4 Federalists. Among the former is W. C. Nicholas, my

vindictive and avowed personal enemy--the most so that could be found

in this state!” He referred to Colonel Wilson Cary Nicholas, a former

member of Congress. By “the grand jury” Burr meant the panel of 24

men from whom the jury of 16 would be chosen. His immediate aim was

to use every legal means to overcome the disadvantage of having the

charges against him heard by a group composed chiefly of Jeffersonians

and among them men he knew harbored a personal animosity toward him.

He therefore begged to point out to the court that under the law the

Marshal was required to summon twenty-four free-holders. But if any of

them had been stricken off the list and others substituted in their

places the act was illegal. He asked if such had been the case.

This afforded the first opportunity of the day for opposing counsel to

warm to their task, and they debated the issue for more than an hour.

At the conclusion of the arguments the Chief Justice ruled in favor

of Colonel Burr and the names of the men substituted for the original

twenty-four were removed.

Burr now was to exercise his right of challenge. The first juror to be

dealt with was Senator Giles. It was he who, a few weeks before, in

direct violation of Republican principles of the days of the Federalist

alien and sedition laws, introduced the bill to suspend the writ of

habeas corpus in the cases of Swartwout and Bollman and nursed it

through the Senate. It was no fault of his that it met with ignominious

defeat in the House.

However, in this instance he was no part of a plot to rob Burr of

justice. He was there because the Marshal had called him. No sooner had

Burr questioned his fitness to serve than Giles admitted prejudice and

volunteered to withdraw.

Nicholas, who was questioned next, proved equally tractable. He made no

attempt to conceal his dislike and suspicion of Burr. He recalled how

he had opposed him when the presidential vote was thrown into the House

of Representatives of which Nicholas was then a member. He declared

that he had no desire to serve on the Grand Jury. But word had come to

him that if he tried to withdraw an effort would be made to embarrass

him by publishing certain things against his reputation. He hesitated

therefore to retreat in the face of his enemies. Burr here interrupted

to deny that any of his followers had made any such threat. Following

this exchange Nicholas withdrew.

Joseph Eggleston, another member of the panel, did not wait to be

challenged. Veteran cavalry officer who had followed Light Horse Harry

Lee in the Revolution, former member of Congress and of the Virginia

Assembly, he confessed that, after reading Eaton’s deposition in the

newspapers, he had expressed himself with great warmth and indignation.

He therefore asked to be excused.

The situation was perfectly made for Burr’s claim that it was

impossible to get a fair trial in the light of the public prejudice

against him. He was quick to take advantage of it.

“Under different circumstances,” he said, “I might think and act

differently, but the industry which has been used through this country

to prejudice my cause, leaves me very little chance indeed of an

impartial jury.”

Pausing a dramatic moment for reflection he continued: “There is very

little chance that I can expect a better man to try my cause. His

desire to be excused, and his opinion that his mind is not entirely

free upon the case, are good reasons why he should be excused; but

the candor of this gentleman, in excepting himself, leaves me ground

to hope that he will endeavor to be impartial.” Could the Colonel, by

any chance, have been calculating that Eggleston would show him the

consideration that one gallant officer of the Revolution might expect

from another?

And now the name of John Randolph was called. Randolph appealed to the

Court, protesting and begging to be excused, pleading that he had the

impression the prisoner was guilty of the charges preferred against

him. It was ridiculous to suppose that in the face of this frank

admission of bias Randolph’s participation in the case would be given

consideration.

But there were extenuating circumstances. Randolph’s enthusiasms and

loyalties seldom lasted long. At an earlier time he had been one of

the President’s most ardent hero-worshippers. Once the leader of the

Jeffersonians in the House he had now broken with his party and was

neither fish, flesh, fowl, nor good red herring. A master of caustic

epithet he had tagged Mr. Jefferson with the name “St. Thomas of

Cantingbury.” On the other hand of late he had on occasion expressed

admiration for the Chief Justice. Now not only was this man with

admitted prejudice against the accused to be put on the jury but the

Chief Justice was to make him its foreman. And this without protest

from Colonel Burr.

No wonder the Jeffersonians interpreted this as a clever move on the

part of Judge Marshall to place in a key position a man who could be

expected to counterbalance the strongly Jeffersonian flavor of the jury.

Politics aside, if the United States Marshal for the District of

Virginia had spent a lifetime at the task of assembling a panel he

could not have brought together one more representative of the best

brains, blood, and ability in the Commonwealth. The descendant of

Jonathan Edwards, who stood at the bar, had no reason to complain that

the Grand Jury which was to pass on the charges preferred against him

was not composed of his peers in the most literal sense of the term.

John Randolph and Joseph Eggleston have been mentioned. Another juryman

was Joseph Carrington Cabell, brother of the Governor and a finely

educated man who shortly was to collaborate with Thomas Jefferson

in founding the University of Virginia. This was the Cabell whose

acquaintance young Washington Irving had made in Europe.

Equally worthy in that select company were Littleton Waller Tazewell,

James Barbour, and James Pleasants. All three were to be governors of

Virginia, Tazewell and Barbour were to represent Virginia in the U.S.

Senate, and Barbour was to enter the Cabinet of John Quincy Adams as

Secretary of War.

In less spectacular company James Mercer Garnett would have been

outstanding. His claims to distinction were membership in the Virginia

Legislature, in the U.S. House of Representatives, and as first

president of the United States Agricultural Society. For variety the

jury included one banker, John Brockenbrough, who had abandoned the

medical profession to become the treasurer of the Bank of Virginia.

Later he was to be its president. Perhaps his rarest achievement was

that he made and kept the friendship of the fickle John Randolph of

Roanoke. Interestingly enough it was a boast that in this company he

shared with Tazewell who also managed to hold Randolph’s affection.

Another member of the jury bore an unusual relationship to the foreman.

This was Robert Barraud Taylor, of Norfolk. Years before as hot-headed

youths at William and Mary College the two had a falling out which led

to a challenge followed by a duel in which Taylor was wounded. He still

carried in his side a slug fired from Randolph’s pistol. The record

does not show that their meeting on the jury revived the animosity.

Numbered among the sixteen were Edward Pegram, member of a family

prominent in Petersburg and shortly to become mayor of that busy

commercial city, and John Mercer, whose family was honorably associated

with Fredericksburg. There was Mumford Beverley in whose veins ran the

blood of the Byrds of Westover. There was John Ambler, first cousin

of the Chief Justice’s wife and a Shockoe Hill neighbor. Finally

there were three jurymen who left no conspicuous public record behind

them--Thomas Harrison, Alexander Shephard, and William Daniel. But they

all bore good names. Looking at the sixteen chosen men as they arose

from their seats and proceeded to the Grand Jury room Burr might have

flattered himself that few prisoners had ever been honored with a jury

of such quality.

However, it was not characteristic of Burr to acknowledge favors. Quite

the contrary. He was up and addressing the Court again, this time

to ask the Chief Justice to advise the jury on the admissibility of

certain evidence he assumed Hay would place before them. Hay retorted

that he trusted the Court would grant no indulgence, but treat Burr

like any other man who had committed a crime.

Here was another chance for Burr to assume a posture of injured

innocence. Rising to his feet he exclaimed: “Would to God that I did

stand on the same footing with every other man. This is the first time

I have been permitted to enjoy the rights of a citizen. How have I been

brought hither...?”

Here the Chief Justice interrupted Burr’s soliloquy to remark that such

digressions were improper. After a little more of such skirmishing

between counsel Court was adjourned while all Richmond was held in

suspense as to whether the Grand Jury would indict and, if so, what

crimes the indictment would include. Burr may not have liked the

complexion of the jury, yet he might have gone farther and fared worse.

Simultaneously with the adjournment a tall, cadaverous frontiersman was

reported to be haranguing a crowd from the steps of a grocery store

just off the Capitol Square, in the same breath damning Jefferson’s

administration and declaring that Colonel Burr was a victim of its

persecution. The name of the speaker meant little to most Richmonders,

though it was already well known in Washington and in the speaker’s

home state of Tennessee. The man was Andrew Jackson. What was he doing

in Richmond? And why had he taken it on himself to deliver this public

excoriation of Jefferson and defense of Burr?

_Chapter_ VII

On May 29, 1805, on his first visit to the West, Aaron Burr arrived in

Nashville, Tennessee. There he was heartily welcomed as was becoming a

former Vice-President of the United States, a member of the ascendant

political party in that section of the country, and one who in the best

frontier tradition had met his man on the field of honor.

Still another potent reason for the warmth of the reception was

Tennessee’s gratitude to Burr who, as a member of the Senate, had

actively supported her successful appeal for statehood.

Foremost among those greeting the statesman was Andrew Jackson,

Nashville’s first citizen, businessman, planter, sportsman, former

judge, and major general of militia. The two had met before in

Philadelphia when that city was the seat of the Federal Government and

Jackson appeared there briefly as Senator from Tennessee. The General

retained vivid recollections of a magnificent dinner he had attended

as a guest of Colonel Burr--a dinner featuring foods and wines which

reflected the Colonel’s reputation as an epicure. Jackson was only one

of many guests and Burr did much entertaining. It is not improbable

that in the intervening years Burr had forgotten the tall, lanky

frontiersman who had not at that time made his mark on the national

scene. But even if that were the case Burr was far too astute to let

Jackson know it. He saluted him as an old friend.

The bustling young town did itself proud in entertaining its

distinguished visitor. There were military reviews to the sound of

martial music, the firing of salutes, and the cheers of the crowds

along the way. Crowning the celebration was a banquet at which General

Jackson undertook to repay Burr’s hospitality in kind, and where toasts

were drunk until late in the evening.

After the public festivities were concluded Burr stayed on for five

days as a guest of Andrew and Rachel Jackson at the Hermitage. The

Jacksons had only recently moved in and the dwelling that was to become

so intimately associated with them was a mere blockhouse consisting of

a single room downstairs, two rooms upstairs, a kitchen, and a detached

guest house in the yard.

From Nashville Burr proceeded to New Orleans where his welcome was as

cordial as that extended him in Kentucky and Tennessee. In August he

was back in Nashville after a strenuous journey on horseback through

wild country that would have tested the physical vigor of any man and

satisfied the Tennesseans that here was no effete easterner but a

red-blooded individual who could keep pace with the best of them. This

was not the Burr of the drawing room but the veteran warrior of the

Quebec campaign and numerous pitched battles of the Revolution.

On this occasion Burr was a guest at the Hermitage for eight days. Of

the second visit the Colonel wrote in glowing terms to Theodosia: “For

a week I have been lounging at the house of General Jackson, once a

lawyer, after a judge, now a planter; a man of intelligence, and one of

those prompt, frank ardent souls whom I love to meet.”

What bond held the two men together? No formal record was kept of their

conversations but more than a year later, when much had happened, the

General wrote a letter to a friend in Washington, George W. Campbell,

that throws light on the two meetings.

Prevalent throughout the western country was the belief that war with

Spain was inevitable and imminent. Spain had been forced against her

will to consent to the sale of Louisiana by Napoleon to the United

States. New Orleans, though now an American possession, was flanked

by the Floridas on one side and by Mexico on the other, both still

Spanish territory. A Spanish army stood threateningly on the Sabine

River which separated Texas from Louisiana. Acquisition of Louisiana

Territory, too, brought on a renewed fever for expansion in the

western country. Underlying the spirit of unrest was the fact of an

aged dying empire faced by a young and virile country. The West was

so confident of itself and so contemptuous of the Spaniards that it

longed for action. No person there was more impatient than Andrew

Jackson who looked scornfully at the dilatory policy in Washington. In

Aaron Burr he thought he saw the dynamic leader needed to put an end to

dilly-dallying.

According to what Jackson said in his letter to Campbell, Burr told

him the expedition he was planning was primarily to settle the Wachita

lands to which he claimed a title. However, if on the way down the

Mississippi River war with Spain were to break out, as seemed probable,

his force could be diverted to march into Mexico, support the patriots

there, and effect the country’s independence from Spain. For this plan

of action Burr assured the General he had the support of the Washington

administration. It was a plan which fired the General’s imagination,

and, as Burr outlined it, bore no taint of illegality. By November Burr

was again in the East, spending part of his time in Washington and

there dining with the President at the White House.

On March 24 Burr wrote a letter to Jackson which contained several

mischievous passages. First he reported what he knew would be

unpleasant news to the General--that the Administration was against a

war with Spain, “if it can be avoided with honor, or even without.”

Equally irritating to the fiery Tennessean must have been Burr’s report

that Jefferson was trying to wring from Congress an appropriation of

$2,000,000 for the purchase of the Floridas. Why, the General might

have asked, was the nation proposing to hand out all that money for

what it could get by the use of its strong right arm?

Yet, continued Burr, in spite of the pacific attitude of the

Administration there still was reason to expect hostility. He argued

that Spain, aroused by Miranda’s activity in behalf of the independence

of her American colonies, which the United States Government was

suspected of supporting, would attack this country.

Whether Burr actually believed that or not it gave him a chance to

get in a little flattery. He observed that he had often said that a

brigade could be raised in West Tennessee capable of driving double the

number of Frenchmen off the earth. Would General Jackson care to select

officers for two regiments from colonel down? If so, and in case troops

should be called, Burr would recommend the list to the Department of

War “... and I have reason to believe that on such occasion my advice

would be listened to....” Burr had no such reason. He was vague, as

usual, but the implication was strong that he was acting with the

knowledge and consent of the Administration.

Burr closed his letter on a critical note that played up to Jackson’s

prejudice against the occupant of the White House. He had been told, he

said, that Mr. Randolph had charged the President with duplicity and

imbecility. “All these things, my dear Sir, begin to make reflecting

men to think, many good patriots to doubt, and some to despond.” Just

what did he mean? Burr was again resorting to innuendo which he handled

so skillfully.

While Burr was in the East General Jackson had been fully occupied.

In April his thoroughbred stallion Truxton won a classic race against

Joseph Erwin’s Ploughboy, earning a stake of $3,000, which the General

greatly needed, and establishing his owner as the leading turfman of

the West. This sporting event was followed by the General’s meeting

with Charles Dickinson in a duel in which Dickinson was killed. On the

way to the duelling ground the General was not too preoccupied with

the business in hand to discuss the Spanish matter with his second,

General John Overton. He doubted that the conquest of Mexico would be

as easy as Burr imagined. “Burr,” he commented, “is as far from a fool

as ever I saw, and yet he is as easily fooled as any man I ever knew.”

Jefferson’s help the General did not value highly. He was then under

the impression, which had been encouraged by Burr, that the Government

was a silent partner in the plotting against Spain. He prophesied that

the Federalists, when they learned about it, would assail the policy

tooth and nail. And, he observed, when they did so Mr. Jefferson would

“run like a cottontail rabbit.” Here was the rugged frontiersman’s

scorn for the timidity of the intellectual in the White House.

In the autumn of 1806, more than a year after his first visit, Burr

returned to Nashville. His welcome was as cordial as ever. Another

banquet and a ball were given in his honor. Burr entered the hall on

the arm of Jackson, resplendent in the uniform of a major general of

militia. The General had seen to it that all his friends were on hand

to pay their respects to the distinguished visitor. The tall, raw-boned

Jackson and the trim, diminutive Burr made a striking contrast. When

time came for the drinking of toasts, Jackson arose and offered the

always popular one: “Millions for defense; and not one cent for

tribute.” Did he have in mind the two millions Jefferson was just then

trying to get from Congress for the purchase of the Floridas?

On this visit Burr gave Jackson an order for five large boats and

provisions sufficient for the complement of men they would carry. In

payment he tendered $3,500 in Kentucky bank notes. Jackson turned over

the execution of the contract to his faithful friend and partner, John

Coffee. Meanwhile another friend of Jackson’s, one Patton Anderson, set

to work in earnest raising a company of young men to go with the Burr

expedition down the river, whatever the destination might be.

On Colonel Burr’s appearance in Nashville in late September he imparted

confidential information to Jackson which led the latter to believe

that war with Spain was about to break out. On the strength of it the

General on October 4 took it upon himself to issue a proclamation

to the Tennessee militia stating that the menacing attitude of the

Spanish forces already inside the American boundary required that the

militia be called out and made ready for instant duty. He then notified

President Jefferson of his readiness to tender his services:

“Sir: In the event of insult or aggression made on our government and

country from any quarter, I am well convinced that the public sentiment

and feelings of the citizens within this State, and particularly within

my division, are of such a nature and such a kind that I take the

liberty of tendering their services, that is, under my command; and

at one moment’s warning, after your signification that this tender is

acceptable, my orders shall be given conformably.” There could not have

been a more generous and loyal gesture.

To a man of Jackson’s impetuous temperament Jefferson’s reply was like

a dash of cold water in the face. “Always a friend of peace,” wrote the

President, “and believing it to promote eminently the happiness and

prosperity of mankind, I am ever unwilling that it should be disturbed

as long as the rights and interests of the nation can be preserved.

But whenever hostile aggressions on these require a resort to war, we

must meet our duty, and convince the world that we are just friends and

brave enemies.”

This noncommittal philosophizing was hardly agreeable to the ears

of a man whose command was already drawn up under arms and waiting

impatiently for the proper authorities to give the word “go.” It could

not have failed to increase Jackson’s distaste for Jefferson.

The friendly relations between Burr and Jackson continued as late

as November 3. Then, within a week, Jackson’s attitude underwent a

sudden reversal. The change came with the visit to the Hermitage of a

Captain Fort, a stranger to the General. Fort stayed for the night and

part of a day. By this time the country was seething with rumors of a

conspiracy, and the conversation between the master of the Hermitage

and his guest turned on that subject. Captain Fort ventured the opinion

that part of the plot was the division of the Union.

The General asked him how it would be done. Captain Fort replied that

it would be done by seizing New Orleans and the bank there, closing the

port, conquering Mexico, and uniting part of the Union to that country.

It was to be accomplished, he said, with the aid of Federal troops

under the command of General James Wilkinson. Jackson inquired if Burr

was involved. Fort replied that he did not know. Asked where he got his

information, he said it came from Col. John Swartwout of New York. At

this the General pricked up his ears, for Swartwout was well known as a

political lieutenant of Burr.

Impressed and shocked, Jackson acted with characteristic directness.

He ordered Coffee to accept no more contracts from Burr. He penned

a letter to Burr in strong terms, telling him of his suspicions and

warning him that until they were cleared from his mind he wished no

further intimacy to exist between them.

While Jackson had only suspicions of Burr he appears to have been

convinced of the guilt of Wilkinson, whom he had known in years past,

with whom he had had business dealings, and for whom he had no love.

To Gov. William C. C. Claiborne, of the New Orleans territory, he

dispatched a dramatic warning: “Indeed I fear treachery has become the

order of the day.... Put your town in a state of defense. Organize

your militia and defend your city as well against internal enemies

as external.... Be upon the alert; and keep a watchful eye upon the

General [Wilkinson] and beware of an attack as well from our own

country as Spain.” In his idle moments at the Hermitage between

horse races and duels General Jackson must have been dipping into

Shakespeare. The letter continued: “I fear there is something rotten

in the State of Denmark.... Beware the month of December. I love my

country and government, I hate the Dons; I would delight to see Mexico

reduced; but I will die in the last ditch before I yield a foot to the

Dons, or see the Union disunited. This I write for your own eyes, and

for your safety; profit by it and the Ides of March remember.”

To Jackson’s demand for an explanation Burr gave prompt attention.

According to the General he answered “with the most sacred pledges

that he had not, nor never had, any views inimical or hostile to the

United States, and whenever he was charged with the intention of

separating the Union, the idea of insanity must be ascribed to him.”

General Jackson was not the only one demanding reassurances from

Burr. When Burr was about to appear before the Kentucky Grand Jury at

Frankfort he asked Henry Clay to defend him. Clay, too, wanted to hear

from Burr’s own lips whether there was any substance to the charges

that had been preferred by Daveiss and the _Western World_ before

accepting the commission. From Burr he got this categorical denial: “I

have no design, nor have I taken any measure, to promote a dissolution

of the Union or a separation of any one or more States from the

residue.... I do not own a musket nor a bayonet, nor any single article

of military stores, nor does any person for me, by my authority or

with my knowledge.... Considering the high station you now fill in our

national councils, I have thought these explanations proper, as well

as to counteract chimerical tales, which malevolent persons have so

industriously circulated, as to satisfy you that you have not espoused

the cause of a man in any way unfriendly to the laws, the government or

the interests of his country.”

Burr’s friend Senator John Smith, of Kentucky, also had expressed

misgivings. To him Burr wrote: “I was greatly surprised and really

hurt by the unusual tenor of your letter of the 23rd [October], and I

hasten to reply to it as well for your satisfaction as my own. If there

exists any design to separate the Western from the Eastern states,

I am totally ignorant of it. I never harbored or expressed any such

intention to anyone, nor did any person ever intimate such design to

me.”

Following his exoneration by the Grand Jury in Kentucky, Burr went

back to Nashville and called once more at the Hermitage. The General

was not at home, but the visitor got a cool reception from Rachel. She

evidently was not entirely satisfied by his written explanation to

the General. Burr then put up at the tavern at nearby Clover Bottom

where Jackson had a store. There he was confronted by Jackson and John

Coffee and again protested he had no object in view except what was

sanctioned by legal authority, and that, when the time came, he would

produce the Secretary of War’s orders. According to one account not

mentioned by Jackson in his letter to Campbell, Burr drew from his

pocket a blank commission signed by Jefferson saying, “Gentlemen, I

suppose this will satisfy you.”

Jackson concluded his letter to Campbell “... if he [Burr] is a

traitor, he is the basest that ever did commit treason, and being tore

to pieces and scattered to the four winds of heaven would be too good

for him.”

Campbell turned the letter over to Jefferson. It may well have been

responsible for the President’s declaration that Tennessee was faithful

and “particularly General Jackson.”

At Clover Bottom Burr’s persuasiveness and apparent frankness

dissipated the worst of Jackson’s suspicions. So much so that when

Burr, using the boats that Jackson’s firm had built, dropped down

the river, Rachel Jackson’s 17-year-old nephew, Stokely D. Hays, was

permitted to go along. In later years Hays testified that he carried

a letter to Governor Claiborne and that he had instructions from the

Jacksons to leave the expedition if he should discover any action on

its part that was inimical to the Government.

Jefferson’s expressed confidence in General Jackson, inspired by the

letter to Representative Campbell, alas! came too late. All sorts of

rumors were reaching the Government in Washington. One which was taken

seriously came from a Captain Read, of Pittsburgh, who asserted that

upon his honor he was firmly persuaded that “large bodies of troops

from Tennessee, with General Andrew Jackson at their head, were in

full march to join the traitors.” Perhaps Washington had also received

reports of Burr’s visits to the Hermitage, which would have lent color

to the charge. Indeed, Jackson’s complicity in the plot was so fully

accepted in the East that the Richmond _Enquirer_, while rejoicing that

Wilkinson had been “tampered with unsuccessfully” added that “we must

acknowledge that we have entertained involuntary suspicions of him as

well as of a militia general in Tennessee.” It regretted that it could

not also withdraw its suspicions of the militia general.

So it came about that when Secretary of War Dearborn found it necessary

to communicate with his subordinate in Tennessee on the subject of the

nation’s defense, he assumed he was writing to a man whose loyalty was

seriously questioned.

Prefacing his letter on his belief that an unlawful enterprise against

the Government had been commenced, Dearborn stated hesitantly that

“it is presumed that the Proclamation of the President ... will

have produced every exertion ... and that you will have been among

the most jealous opposers of any such unlawful expedition.” He then

went on to say: “About Pittsburgh it is industriously reported among

the adventurers, that they are to be joined, at the mouth of the

Cumberland, by two regiments under the command of General Jackson.” He

concluded: “... such a story might afford you an opportunity of giving

an effectual check to the enterprise if not too late.”

Little did the Secretary of War understand the man to whom he was

writing. The suspicion of guilt contained in the letter would have

been calculated to arouse even the mildest of men. But Andrew Jackson

was not a mild man. He was least mild when his honor was in question.

The General took up his pen, but his emotions were too aroused to

permit orderly thinking. He had to make several drafts of a reply

before he settled on one that satisfied him. It would require an

exhaustive search to find anywhere as bold and unrestrained an answer

from a subordinate to his superior as the one Jackson directed to the

Secretary of War.

Wrote Jackson: “You stand convicted of the most notorious and criminal

acts of dishonor, dishonesty, want of candour and justice. You say,

Sir, that it is industriously reported among the adventurers that

they are to be joined at the mouth of the Cumberland by two regiments

under the command of General Jackson. Such a story might afford him an

opportunity of giving an effectual check to the enterprise, if not too

late.

“After I have given the most deliberate consideration to your

expressions ... I cannot draw from them any other conclusion but

this: that you believe me concerned in the conspiracy and that I was

fit subject to act the traitor of traitors, as others have done [the

reference was to Wilkinson], and that the Secretary of War could buy me

up without honor.” Dearborn did not answer the letter.

To his friend Patton Anderson, Jackson wrote: “I have received some

communications from the President and the Secretary of War. It is the

merest old-woman letter from the Secretary you ever saw.” Then he

turned on Wilkinson: “Wilkinson has denounced Burr as a traitor, after

he found that he was implicated. This is deep policy. He has obtained

thereby the command of New Orleans, the gunboats armed; and his plan

can be executed without resistance. But we must be there in due time,

before our fortifications can be erected, and restore to our government

New Orleans and the western commerce.” Then, as an afterthought: “The

Secretary of War is not fit for a granny.”

General Jackson had taken one other precautionary measure. He had sent

a messenger to Captain Bissell, who commanded the Federal post of Fort

Massac on the Ohio River a short distance above its confluence with the

Mississippi, warning him of the approach of Burr’s forces and urging

him not to let any warlike party go past him down the river. He added

that if Bissell should need help his troops were ready to march.

From Captain Bissell he shortly received a curt reply to the effect

that Burr had already arrived at Massac, that his party showed no

evidence of being on a warlike mission and had been permitted to

proceed down the river.

Already Burr’s protestations of innocence had begun to have their

effect on the General and now this report from Bissell strengthened

his conviction of Burr’s sincerity. From then on in Jackson’s judgment

Wilkinson, and not Burr, was the real culprit, and he acted accordingly.

In the ambitious roundup of witnesses that followed the Chief Justice’s

demand on the prosecution for more evidence, General Jackson was caught

and summoned by the lawyers of the Government to testify against Burr.

But, contrary to the Government’s expectations, he turned out to be

the noisiest of Burr’s champions, in the same breath attacking the

Government and defending Burr in the very shadow of the Capitol for the

benefit of anybody who chose to hear. Richmond’s best people already

were aligned with Burr and needed no exhortations. But Jackson’s

arguments were directed to the masses who up to this time had been

clamoring for Burr’s blood. Jackson, too, spoke as a Republican to

Republicans. Such a man was highly dangerous. To his friend Patton

Anderson he wrote from Richmond on June 17: “I am sorry to say that

this thing has in part assumed the shape of a political persecution.”

No wonder then that, after bringing him all the way from Tennessee to

Richmond, once the Government’s lawyers had heard about the speech, the

prosecution decided it was best not to let him testify.

But the mischief went beyond the Burr trial. The break between Jackson

and the Jefferson Administration was never mended. It was inherited

by James Madison with the result that when the War of 1812 broke out

the Government was reluctant to use their most competent general when

he was sorely needed. Had Jackson commanded on the Canadian front the

story might have been different.

_Chapter_ VIII

The Grand Jury had been selected. Counsel for the prosecution and the

defense were present with the one important exception of Luther Martin.

The audience was packed into the courtroom, impatient for the spectacle

to go on. But there was an impelling cause for delay--the Government’s

star witness had not turned up. Government’s counsel offered

reassurances, yet they could not hide the fact that they did not know

just where General Wilkinson was.

It is a considerable distance from New Orleans to Richmond, and, at the

turn of the nineteenth century, transportation was primitive. One route

Wilkinson might take was overland through wildernesses and by tortuous

roads and trails. It had taken Burr and his captors three weeks to make

the journey from Alabama to Virginia. It was more probable that the

portly Major General, who liked his comfort, would choose a sea voyage.

But that would put him at the mercy of wind and tide. To add to the

uncertainty, the General was an inveterate procrastinator with an utter

disregard for time.

Counsel for the defense made the most of the prosecution’s

embarrassment. They enlarged upon the great inconvenience members

of the Grand Jury were being put to, and that of the many witnesses

waiting to be called. They expressed doubt as to whether Wilkinson

would ever show up. Many thought him as guilty as Burr. Might he not

prefer to flee the country rather than face Aaron Burr in person and

possible exposure in Richmond?

Hay pleaded that allowance be made for a man “of General Wilkinson’s

age and bulk to travel to this city.” To which Mr. Randolph of the

defense retorted: “Surely there is enough time to travel from New

Orleans to this city in seventeen days, even with the gigantic ‘bulk’

of General Wilkinson himself.”

General Wilkinson’s protracted absence left a void that somehow had to

be filled. Mr. Hay of the prosecution was the first to try to fill it.

When court met on the morning of Monday, May 25, he offered a motion

that Colonel Burr be committed for treason. His contention was that new

evidence had appeared since the Chief Justice refused commitment for

treason earlier in the proceedings.

The defense immediately protested, Mr. Botts acting as spokesman. The

motion, he declared, took them completely by surprise. It was their

understanding that no such action was to be taken by either side

without previous consultation. And here was the prosecution breaking

the agreement. What was more, if Mr. Hay’s motion were granted it

would mean taking away from the Grand Jury a task obviously its

responsibility and giving it to the Chief Justice.

Here Mr. Randolph, the elder statesman, intervened to reinforce young

Botts. Never, he asserted, in his thirty years of practice at the bar

had he heard such an astounding proposal.

Mr. Hay explained that his purpose for making the motion was merely to

get the prisoner’s bail raised. Borrowing the explanation of Burr’s

friends for Wilkinson’s absence, he said that with the bail as low as

it was Burr, knowing he would soon have to face Wilkinson, might be

tempted to run away. He intimated that he would not put it beyond Burr

to make his exit in that craven manner.

Mr. Wickham scoffed at this. Afraid that Burr would run away, indeed!

What the prosecution was actually trying to do was to introduce

evidence in order to ruin the character of his client before the trial

had even begun.

To Wickham’s conjecture Wirt retorted: “Evidence, Sir, is the greatest

corrector of prejudice. Why, then, does Aaron Burr shrink from it?”

Mr. Randolph charged that the Government had issued an order “to

treat Col. Burr as an outlaw, and to ruin and destroy him and his

property.” Then the Colonel himself took up the argument opposing the

introduction of affidavits at this point. He called attention to the

great disadvantage he, as an individual, suffered in contrast to the

Government of the United States which could exercise a compulsory

process to obtain them.

The strategy of the defense was making itself clear. Burr was to be

portrayed as the victim of a ruthless government which denied him

his civil rights and employed the military to seize his property and

threaten his life. It was to charge the Jefferson Administration with

brutal disregard of the dignity of the humblest citizen, whose equality

before the law was Jefferson’s proudest boast.

Next day the Chief Justice presented his opinion, and it was a victory

for the prosecution. The Court, he declared, had the right to commit

even after the Grand Jury had been chosen. Mr. Hay’s motion was

sustained and now he could proceed to present the new evidence he

claimed to have on Burr’s alleged treason.

On hearing the opinion, however, Hay stated that he did not wish to

present evidence at this time, provided the prisoner’s bail were

raised. He proposed that counsel for both sides meet to see if an

agreement could be reached. The proposal was accepted and the meeting

was held, but it ended in a deadlock. Hay then proceeded to present

his evidence while the defense challenged each affidavit and witness.

Its objection to the Wilkinson affidavit was sustained. Peter Taylor,

Blennerhassett’s gardener, and Jacob Allbright, a laborer on the

island, were permitted to testify. But when the affidavit of one

Sergeant Dunbaugh was offered the defense again protested.

Judge Marshall here interposed to remark that it was becoming highly

embarrassing to him to be issuing opinions on the admission of

evidence before the trial had actually begun. To this Burr replied

that if the Chief Justice was embarrassed he would consent to a higher

bail. The sum of $10,000 was agreed upon, which put an end to this

quite unnecessary sideshow. That is, unnecessary so far as the legal

proceedings were concerned. But it had provided an opportunity for the

counsel on both sides to posture before the audience and to do their

best to influence public opinion for or against the accused according

to the side they were on.

The digression did result in setting forth a statement of the

fundamental issue that was to be iterated and reiterated during

the trial: what was treason? In the course of his argument Mr.

Botts outlined the definition of treason as it is set forth in the

Constitution.

He stated that treason is either levying war against the United States

or else giving aid and comfort to the enemy. But since in the present

instance the United States was at peace with the world, giving aid and

comfort to the enemy was ruled out.

That left the charge of levying war. But, says the Constitution,

there must be an “overt act.” Further that act must be proved by two

witnesses, and it must have occurred in the district in which the case

was being tried. All of these things, insisted Mr. Botts, had to be

proved by the Government against Burr if he was to be found guilty of

treason.

Mr. Botts contended further that the first obligation of the

prosecution was to prove the overt act. Until that act was proved, no

other evidence was admissible.

Nothing would be more damaging to the prosecution than a ruling of

the Court sustaining the contention of the defense. The prosecution’s

plan was to present the evidence chronologically, introducing all the

scheming and plotting that had been common gossip during the past few

years, and gradually working up to a climax. Colonel Burr and his

counsel touched a tender spot when they challenged this procedure.

At this juncture the defense received valuable reinforcement through

the arrival of Luther Martin of Maryland. Mr. Martin was a lawyer of

exceptional talent. A native of New Jersey, he had been educated at

Princeton from which he graduated with high honors in the class of

1766, six classes ahead of Aaron Burr. At the age of thirty he was

Attorney General of Maryland, from which high office he resigned to

build up a lucrative practice in Baltimore. Elected a delegate from

Maryland to the Constitutional Convention, he showed his courage and

his scorn for conformity by defying the powerful Virginia delegation,

headed by Washington, and championing the cause of the smaller states.

His service in the Convention, valuable as it turned out to be, had

more recently been overshadowed by his stalwart defense of Judge Chase

in the impeachment proceedings.

Another asset for the business in hand was Mr. Martin’s warm friendship

for Burr and his inveterate hatred of Thomas Jefferson. In politics

Martin was a Federalist; added to his political differences with

the President was a personal grudge resulting from an injury quite

unconsciously inflicted by Mr. Jefferson.

Luther Martin married Maria Cresap, a daughter of Col. Michael

Cresap, a frontiersman of Allegheny County, Maryland. In his “Notes

on Virginia” Jefferson included the eloquent speech of the Indian

chieftain Logan, who had befriended the early settlers yet whose wife

and children had been butchered by the whites. Jefferson’s purpose in

introducing this classic piece of rhetoric was to call attention to

the nobility of the red man. He was not aware that responsibility for

the murder had been pinned on Colonel Cresap, Martin’s father-in-law.

Martin voiced his resentment in a bitter letter to a Philadelphia

newspaper, but this public outpouring was not sufficient in itself to

erase the grudge he held against Jefferson.

Mr. Martin’s brilliance was offset by an untidy dress, coarseness of

speech and manner, and an addiction to spirits that earned him the

nickname “Old Brandy Bottle.” His capacity was phenomenal, and though

he imbibed freely this did not seem to dull his wit or befuddle his

mind. He made his entrance into the lists in Richmond as a foreigner,

but, had he wished, he might have claimed kinship with his Virginia

colleagues as a former student of Chancellor Wythe in Williamsburg and

a member of the Virginia bar practicing briefly on the state’s eastern

shore.

The business of Hay’s motion absorbed the attention of the Court

for the better part of a week, but Wilkinson’s failure to appear

continued to hold up proceedings. To a friend in New York Washington

Irving wrote impatiently: “... you can little conceive the talents for

procrastination that have been exhibited in this affair. Day after

day we have been disappointed by the non-arrival of the magnanimous

Wilkinson; day after day have fresh murmurs and complaints been

uttered; and day after day are we told that the next mail will probably

bring this noble self, or at least some account of when he may be

expected.”

Finally the Court gave up hope of the immediate arrival of the General.

The Chief Justice granted a recess of the Grand Jury for a week so

that, as Irving put it, “they might go home, see their wives, and flog

their Negroes.”

On Tuesday, June 9, the Jury was recalled and Court reconvened, but

it had nothing to do. It was now the turn of the defense to provide

diversion to keep the case from dying of inanition. Colonel Burr set

things in motion by stating that he thought he might need for his

defense a letter of General Wilkinson of October 21, 1806, addressed to

President Jefferson, which had been mentioned by the President in his

special message to Congress, and the President’s reply to the same. He

also would like to have copies of the orders with reference to himself

which had been issued to the Army and the Navy.

The Colonel said he had asked for the papers in Washington but without

result. Therefore he requested the Chief Justice to issue a _subpoena

duces tecum_ to the President of the United States demanding either

that he supply the papers or else come into court with them himself.

Burr’s request called for quick thinking on the part of the District

Attorney. How was Hay to protect his master from the indignity of a

summons yet at the same time prevent his being exposed to a charge of

concealing evidence? How was he to offer assurances without pledging

the Government to go farther than the President might want it to go?

Mr. Hay settled on a delaying action. He expressed confidence that the

Government would comply with the request if the Court should consider

the papers pertinent. On the other hand he doubted whether the Court

had the power to issue a _subpoena duces tecum_ to the President of

the United States. And, suggested Mr. Hay, since the Government was

perfectly willing to produce the papers if the Court decided they were

pertinent, what need was there for issuing a subpoena at all? Such

procedure he thought would be a waste of precious time.

Mention of time wasting brought a shout of derision from the defense.

The prosecution, they retorted, had wasted enough of it. And suppose

the Government in Washington--by which they meant Mr. Jefferson--turned

out to be less obliging than the District Attorney? The Chief Justice

here remarked somewhat wryly that the _subpoena duces tecum_ usually

was requested in cases where it was anticipated that the papers asked

for would not be produced. He inquired directly of the District

Attorney whether the prosecution would consent to the issuance of the

subpoena. On Hay’s refusal to consent the Chief Justice called for

argument.

There followed a prolonged debate, in which the Chief Justice allowed

each lawyer to say his say with no apparent time limit. The situation

was a delicate one for Mr. Jefferson. If he were to answer the

subpoena by complying with a demand to appear in court in person the

executive branch of the Government would be making abject surrender to

the judiciary. If, on the other hand, he were to claim an exemption,

he--the champion of equality of all men--would be claiming a special

privilege which even the King of England hesitated to exercise.

The Government’s counsel therefore did not go so far as to deny that

the President could be called. But Mr. Hay insisted that the defense

had to show that the papers were relevant and material. Further,

he contended that the President had a right to reserve any portion

of the letters requested whose production in court he considered

detrimental to the interests of the United States. Nor was Mr. Hay

sure the President was under any obligation to present a letter that

had been addressed to him privately. To this, lawyers of the defense

replied that in his message to Congress Mr. Jefferson had stated that

the letter was addressed to him not as a private individual but as

President of the United States. Mr. Hay suggested that a copy of the

letter might do. Mr. Wickham of the defense said they would not have it

that way. They demanded the original.

The debate gave Luther Martin the opportunity to chastise Mr. Jefferson

for which he had impatiently been waiting since his entry into the

proceedings. The President, he asserted, had undertaken to prejudge

Mr. Martin’s client by declaring that “of his guilt there can be no

doubt.” He had assumed the knowledge of the Supreme Being himself, and

pretended to search the heart of Mr. Martin’s highly respected friend.

The President, declared Mr. Martin, had proclaimed Colonel Burr a

traitor in the face of the country which had rewarded him. He had “let

slip the dogs of war, the hell-hounds of prosecution to hunt down my

friend.” And would the President of the United States, who had raised

all this absurd clamor, pretend to keep back the papers which were

wanted for this trial where life itself was at stake?

It was, continued Mr. Martin, a sacred principle that in all such cases

the accused had a right to all the evidence needed for his defense.

Then, releasing his venom on Mr. Jefferson, he exclaimed: “Whoever

withholds willfully information that would save the life of a person

charged with a capital offense, is substantially a murderer, and so

recorded in the register of Heaven.”

Mr. Wirt of the prosecution jumped to his feet to express his

astonishment at the unrestrained language used by Mr. Martin. He even

had the temerity to attack the Chief Justice for permitting it in his

Court. Suppose, he said, there were foreigners present accustomed to

regular government in their own country. What would they infer from

hearing the Federal Administration thus reviled before the Federal

judiciary and the Administration likened to “blood hounds hunting the

man with a keen and savage thirst for blood”?

“Sir,” protested Wirt, looking squarely at Judge Marshall, “no man,

foreigner or citizen, who hears this language addressed to the Court,

and received with all the complacency at least which silence can imply,

can make any inference from it very honorable to the Court.” He hoped

the Court would compel a decent respect for that government of which

they themselves formed a branch.

As for tracking the accused with bloodhounds thirsting for blood, Mr.

Wirt wished to make it clear that, for their part, the prosecution

wished only a fair trial of the case. “If the man be innocent, in

the name of God let him go; but while we are on the question of his

guilt or innocence, let us not suffer our attention and judgment to be

diverted and distracted by the introduction of other subjects foreign

to the inquiry.”

For three days opposing counsel held forth until the Chief Justice,

with a sigh of exhaustion, announced that he had heard enough

arguments on which to base a sound opinion. He then proceeded to

deliver it. If, said Judge Marshall, upon any principle the President

could be construed to stand exempt from the general provisions of

the Constitution, it would be because his duties as chief magistrate

demanded his whole time for national objects. But, he observed, it was

apparent that this demand “was not unremitting.”

The last remark was a sly dig at Mr. Jefferson for spending several

months every summer away from Washington at Monticello, his country

estate in Albemarle County, Virginia.

Now, continued Judge Marshall, if the public’s demand on the

President’s time should exist when his attendance at court was

required, it could be sworn to on the return of the subpoena. It might

serve as an excuse for not obeying the Court. But it did not serve as a

reason for not issuing the subpoena.

The Chief Justice now assumed an apologetic attitude. It could not

be denied, he said, that to issue a subpoena to a person filling

the exacting position of chief magistrate was a duty which would be

dispensed with much more cheerfully than it would be performed. But if

it was a duty the Court could have no choice in the case. He recognized

that the right to call the President into court could be abused. But,

he assured, “the guard furnished to this high officer to protect him

from being harassed by vexatious and unnecessary subpoenas, is to be

looked for in the conduct of the Court after those subpoenas have been

issued.”

In short, what Judge Marshall said was that the decision as to whether

it was appropriate for Mr. Jefferson to appear in Court rested with the

Chief Justice, not with the President.

The Chief Justice went on to defend his position. “It is not,” he said,

“for the Court to anticipate the event of the present prosecution.

Should it terminate as is expected on the part of the United States,

all those who are concerned in it should certainly regret that a paper,

which the accused believed to be essential to his defense; which may,

for aught that now appears, be essential, had been withheld from him

... it would justly tarnish the reputation of the Court which had given

its sanction to its being withheld.”

He therefore ordered that the _subpoena duces tecum_ be issued to the

President of the United States, or such of the secretaries of the

departments as might have the paper mentioned.

The Chief Justice had hardly finished delivering his opinion when Mr.

MacRae was up, clamoring for recognition. Unless his ears had deceived

him, he said, he had heard the Chief Justice remark that should the

case terminate “as is expected on the part of the United States.”

Against any such remark Mr. MacRae protested with all his might.

“The impression,” he said, “which has been conveyed by the Court that

we not only wished to have Aaron Burr accused, but that we wished to

convict him, is completely abhorrent to our feelings.” The prosecution,

he insisted, was interested only that Burr be tried.

Judge Marshall did not immediately repudiate the comment. On the

contrary, he defended it on the ground that he had inferred as much

from remarks made by them assuming the guilt of the prisoner. But

later, after reflection, he thought better of it. At the close of

Court he called the reporters to him and observed that he had no desire

that the words complained of by Mr. MacRae should remain in the written

opinion and so he had expunged them.

However impelling the demand on the President may have been to give his

time to other official matters, it did not keep him from paying close

attention to what was going on in Richmond. Messengers were constantly

passing back and forth between him and the District Attorney bearing

suggestions from the President for trying the case and reports of the

proceedings from Hay. No sooner, therefore, had the request for the

papers been made by Colonel Burr than the President was so apprised.

Mr. Jefferson replied promptly that, reserving his right to decide

independent of all other authority, what papers coming to him as

President the public interest permitted to be communicated, he assured

his readiness voluntarily to furnish on all occasions whatever the

purposes of justice might require.

Mr. Jefferson said he was under the impression that General Wilkinson’s

letter of October 21 and all other papers relating to the charges

against Burr had been turned over to the Attorney General when he first

went to Richmond in March. He took for granted they had been left with

Hay. Since he could not remember exactly what was in the papers he

would leave it to Mr. Hay to exercise his discretion as to what part to

communicate and what part to withhold.

As to the requests for the orders to the Army and the Navy, the

President observed that supplying them would amount to laying open the

whole executive books. But he would get the Secretary of War to look

at the records. He added that if the defendant supposed there were any

facts within the knowledge of the heads of departments, or of himself,

which could be useful to the defense he would be glad to provide

depositions.

“As to our personal attendance at Richmond,” the President informed

Hay, “I am persuaded it is sensible that paramount duties to the nation

at large control the obligation of compliance with their summons in

this case, as they would, should we receive a similar one to attend the

trials of Blennerhassett and others in Mississippi territory, those

instituted at St. Louis and other places on the western waters ... to

comply with such calls would leave the nation without an executive

branch.”

Feeling as he did the President was greatly annoyed when Judge

Marshall’s opinion was reported to him, still obstinately maintaining

that he should appear in court. After reflection he sat down and framed

a letter to Hay presenting his arguments against obeying the subpoena.

The Chief Justice, he complained, as was usual with him when an opinion

was to be supported, right or wrong, dwelt much on smaller objections

and passed over those which were solid. He had laid down the general

position that all persons owe obedience to subpoenas. But, argued Mr.

Jefferson, if the Constitution enjoined a particular officer to be

always engaged in a particular set of duties, did not that supersede

the general law, subjecting him to minor duties inconsistent with

these? “The Constitution enjoins his constant agency in the concerns of

six millions of people. Is the law paramount to this which calls on him

in behalf of a single one?”

Mr. Jefferson applied the Judge’s doctrine to his own case. Suppose, he

said, the sheriff of Henrico County (in which the Judge was domiciled)

should summon him from court to quell a riot. Would the Judge abandon

major duties to perform lesser ones? Then he got down to the root of

the matter, which was the battle being waged between the executive and

the judiciary.

“The leading principle of our Constitution,” he reminded, “is the

independence of the legislature, executive and judiciary of each other,

and none are more jealous of this than the judiciary. But would the

executive be independent of the judiciary if he were subject to the

commands of the latter, and to imprisonment for disobedience; if the

several courts could bandy him from pillar to post, keep him constantly

trudging from north to south and east to west, and withdraw him

entirely from his constitutional duties?”

The President now came to the most personal part of the opinion in

which the Chief Justice intimated that his duties were not unremitting.

“If,” said Mr. Jefferson, “he alludes to our annual retirement from

the seat of government, during the sickly season, he should be told

that such arrangements are made for carrying on public business that it

goes on as unremittingly there as if he were at the seat of government.

I pass more hours in public business at Monticello than I do here every

day and it is much more laborious, because all must be done in writing.”

Thus Mr. Jefferson excused himself from casting aside his official

duties in Washington and departing posthaste to Richmond at the request

of Aaron Burr and on the order of Judge Marshall. He still had to deal

with his other tormentor, Luther Martin. The President was not very

successful in concealing the fact that the vindictive attack of the

Baltimore lawyer had gotten under his skin.

While Mr. Martin was shouting invectives against the President in

Richmond there came into Mr. Jefferson’s hand a letter from a Mr.

Graybill of Baltimore. Inquiry revealed that the writer was an old

Revolutionary soldier who had set up as a flour merchant. According

to the information reaching the President, Mr. Graybill was a man of

respectable character whose word could be trusted implicitly. In his

letter Mr. Graybill said that for more than a year it had been believed

in Baltimore that Burr was engaged in some criminal enterprise and that

Luther Martin knew all about it.

In his haste to even the score with Martin the President was carried

away by the Graybill letter. He proposed to Hay that a subpoena be

issued to Graybill to appear as a witness against Burr and, while

Graybill was on the way, Hay might be considering how best to use his

testimony. Then the President put forward a fantastic idea. How about

summoning Luther Martin as a witness against Burr, meanwhile holding

Graybill ready to confront Martin? How about the prosecution moving to

commit Luther Martin as _particeps criminis_ along with Burr? Graybill,

Mr. Jefferson was assured, would fix upon him misprision of treason at

least. Mr. Jefferson did return to realities sufficiently to admit that

there might be some doubt whether the prosecution could legally examine

a witness to discredit its own witness. He recognized, too, that

lawyers considered themselves privileged from being forced to breaches

of confidence.

“At any rate,” concluded Mr. Jefferson, “his [Graybill’s] evidence

will put down this unprincipled and impudent Federal bulldog, and add

another proof that the most glamorous defenders of Burr are all his

accomplices. It will explain why L.M. flew so hastily to the aid of his

‘honorable friend,’ abandoning his clients and their property during

a session of a principal court in Maryland, now filled, so I am told,

with the clamors and ruin of his clients.”

The District Attorney, wisely perhaps, ignored these chimerical

suggestions from the White House.

Still another incident illustrated the zeal of the President of the

United States to win a conviction against Colonel Burr. It will be

recalled that Dr. Eric Bollman, the German adventurer, was one of

the messengers dispatched to Wilkinson with the fateful letter which

Wilkinson later disclosed; that when the conspiracy collapsed Wilkinson

arrested him and Swartwout and shipped them east to Washington under

arrest on charges of treason. Bollman shortly thereafter went to the

President and denied some of the exaggerated charges against Burr

that were being published in the newspapers. Bollman’s purpose was

to show that the plan did not involve a division of the Union, but

only an expedition against Spain. He was received by the President

in the presence of Secretary of State James Madison, who listened

sympathetically to what he had to say. The President suggested that

Bollman put his oral statements in writing, which Bollman did. The

German admitted later that, because of his difficulties with the

English language, some of his statements may have been misleading.

It was his understanding that Mr. Jefferson promised not to use them

against him or to let them out of his keeping. Mr. Jefferson appears to

have understood differently.

As early as May 20 the President wrote Hay that he was sending him some

blank pardons that were to be filled out at Hay’s discretion “if you

should find a defect of evidence and believe that this could supply

it.” However, he cautioned Hay that they were not to be given to gross

offenders “unless it be visible that the principal will otherwise

escape.”

Bollman evidently was regarded by the President as a man whose

testimony would be sufficiently important to justify his being given a

pardon should he consent to turn State’s evidence. A week after sending

the blank pardons to Hay he wrote him that: “If a bill [against Burr]

be found and a trial had, his [Bollman’s] evidence is deemed entirely

essential, and in that case his pardon is to be produced before he goes

to book.” In short, Bollman was to be offered a pardon if he would

testify against Burr. But Bollman was not so keen to betray his friend.

Hay filled out the pardon; Bollman spurned it. Hay then wrote the

President for instructions.

“You ask,” replied the President, “what is to be done if Bollman

finally rejects his pardon, and the Judge decides it to have no effect.

Move to commit him immediately for treason or misdemeanor.” There were

times when the mild-mannered “Sage of Monticello” could be tough.

At this point the side play was interrupted by the arrival of

the Government’s star witness, Major General James Wilkinson,

Commander-in-Chief of the United States Army. In the excitement caused

by his martial entry the _subpoena duces tecum_ was brushed aside and

almost forgotten.

On the original subpoena, now in the Federal Courthouse in Richmond, is

an indorsement in Burr’s handwriting indicating that he did not expect

to bring the President into court. On the other hand, the language

used by the Chief Justice in his opinion certainly indicated that he

expected the President to appear in person. Certainly the President,

in setting forth in his letter to Hay his reasons for not coming,

indicated that he thought he had been summoned to appear. However,

when the writ itself was drawn up it stated that neither the personal

attendance of the President nor the other officers of government

mentioned was required. When the critical moment came Marshall recoiled

from a direct challenge.

Nevertheless a void of several days had been packed with dramatics.

The lawyers had been given a chance to exercise their eloquence and the

audience had been well entertained. More to the point, Mr. Jefferson

had been unmercifully badgered. That probably was as much as Colonel

Burr and his counsel expected anyway.

_Chapter_ IX

James Wilkinson was born of good English stock on a farm near Benedict,

in southern Maryland, in 1757. A medical career was planned for the

boy and he was put under a relative to study for the profession. This

was followed by formal training in Philadelphia. A brief adventure

into medicine was interrupted by the outbreak of the Revolution when

young Wilkinson was seized with patriotic zeal, volunteered in a rifle

company, and marched off to join the American forces in Boston.

This transition from a medical to a military career proved permanent.

Wilkinson’s genius for self-advancement soon manifested itself. He was

an extrovert who did not believe in hiding his light under a bushel.

There may have been some doubt among his comrades as to his enthusiasm

for engaging in hand-to-hand combat or making a desperate last stand,

but none whatever as to his ability in ingratiating himself with his

superiors.

He was aide successively to General Nathanael Greene and General

Benedict Arnold and took part with the latter in the campaign against

Quebec. On that strenuous expedition he first made the acquaintance of

Aaron Burr. Unlike Burr he did not enjoy the distinction of having a

general die in his arms, but his services were sufficiently noteworthy

to lead to a promotion to lieutenant colonel.

The warrior’s next assignment was on the staff of General Horatio

Gates who made him deputy adjutant general of the Army of the Northern

Departments. It was then he first exhibited a fatal quality for

appearing wherever intrigue was in the air. This instance was the

Conway Cabal whose object was to cashier Washington and put Gates in

his place. The Commander first got wind of it when Wilkinson, arriving

in a garrulous mood at Lord Stirling’s headquarters, let out the

contents of an incriminating letter from Conway to Gates. Wilkinson’s

later version of the incident was that he deliberately made the

disclosure. He was to develop an exceptional gift for shifting from the

role of conspirator to patriot when the going got hot.

However deeply he may have been involved in the plot it did not

interfere with his continued rise in the military. He was promoted to

brigadier and appointed clothier-general of the American Army, but

he neglected his work, drew a rebuke from Washington, and shortly

thereafter resigned from the service.

Meanwhile Wilkinson had married Ann, daughter of John Biddle of

Philadelphia, a merchant and innkeeper. His devotion to his wife was

the one sincere and admirable feature of his life. He bought an estate

in Pennsylvania and made a brief entry into local politics, serving as

member of the State Assembly.

Like Burr, Wilkinson was extravagant, loved display, and lived

beyond his means. In an age when heavy drinking was not uncommon his

indulgence was sufficiently conspicuous to provoke comment. He was soon

overwhelmed with debt and, following the example of many other men in

the same predicament, decided to go west to recoup his fortunes. It was

in Kentucky and the Southwest that he was destined to spend the rest of

his life.

The Spaniards were then in possession of New Orleans, parts of the

present Louisiana, the Floridas, Texas, and Mexico. They dreaded

the crude American frontiersmen as the decadent Romans dreaded the

Vandals and the Visigoths, expecting them at any time to swoop down,

loot, destroy, and conquer. One of their defense measures was to seek

out friends and informers among the Americans. In Wilkinson they

found a willing collaborator. The Spaniards about this time closed

the Mississippi to American goods coming down from the territories

and the frontiersmen were indignant with the Spaniards--and with the

indifference of their own government to their plight. It was then

that the Spanish Plot took shape. Esteban Miro, Spanish Governor of

Louisiana, fostered it by calling attention to the advantages to be

gained by an establishment of a nation beyond the Alleghenies under the

protection of Spain.

Wilkinson, one of the American leaders in the plot, saw the chance to

turn Spanish fears to his account. He made two trips to New Orleans,

ingratiated himself with Miro, and wrung from him a concession to

deposit his goods at New Orleans and to enjoy other special commercial

privileges. In return he swore allegiance to the Spanish crown and

engaged to act as a secret agent. In the Spanish reports he was

thereafter to be designated as “Number Thirteen.” It was a relationship

Wilkinson was to maintain with Miro and his successors for more than a

decade. The Spaniards agreed also to grant Wilkinson a pension of $2000

a year. But communications on the frontier were primitive; a pension

payable in silver dollars did not always get through.

In spite of this new source of income Wilkinson’s extravagance kept him

on the verge of bankruptcy. To add to his difficulties, the Spaniards

reversed their policy and withdrew his trading privileges. Wilkinson

was driven to selling most of his personal possessions. In this

extremity he accepted a commission in the United States Army, took part

as second in command in General Anthony Wayne’s invasion of the Wabash

country, burned and pillaged with the best of them, and gained quite

a reputation as an Indian fighter. At this time President Washington,

making a summary of the general officers of the army, damned Wilkinson

with faint praise, commenting that “little can be said of his abilities

as an officer. He is lively, sensible, pompous and ambitious, but

whether sober or not is unknown to me.”

Wayne learned of Wilkinson’s Spanish connections and warned the

Government. When President Washington, toward the close of his

administration, sent Andrew Ellicott out as commissioner to put into

effect a treaty with Spain, he directed him to investigate Wilkinson.

Ellicott did not at that time find reason to take the rumors seriously,

but Wilkinson himself did. In alarm he wrote to Gayoso, governor of

Natchez, “For the love of God and friendship enjoin great secrecy and

caution in all our concerns. Never suffer my name to be written or

spoken. The suspicion of Washington is wide awake.”

On the death of General Wayne in 1796 Wilkinson became senior officer

in the army. Though John Adams, the incoming President, knew of Wayne’s

charges against Wilkinson, he kept him on and gratified his suspicion

with true New England frugality by holding him to the rank of brigadier.

Seeing how the political wind was blowing against the Federalists,

Wilkinson set to work ingratiating himself with Thomas Jefferson. This

turned out to be a highly profitable speculation. Thereafter he enjoyed

the support and at least the professed confidence of Jefferson, yet it

is hard to believe that a man of Jefferson’s sagacity did not at times

entertain unpleasant doubts about his protégé.

When on December 20, 1803, pursuant to the terms of the Purchase,

the United States took over Louisiana from the French, Wilkinson, as

commanding general of the United States Army, shared with Governor

William C. C. Claiborne, of the Mississippi Territory, the honor of

representing the United States when the French Tricolor was lowered

from the flag-staff in the Place d’Armes in New Orleans and the Stars

and Stripes were hoisted in its place.

In 1804 Governor Don Vincente Folch of West Florida turned up in New

Orleans. A nephew of old Miro, he had been a party to the intrigues

with Wilkinson to which he referred as “the ancient history.” The two

took the occasion to renew secret relations. Wilkinson, for a price,

volunteered to recommend a course Spain might pursue to prevent the

United States from profiting by the cession of Louisiana. Asserting

that he had not received his pension for ten years he asked for

$20,000 in arrears. Actually he is estimated to have received from the

Spaniards $26,000 prior to 1796. Wilkinson also offered to supply Folch

with a text of “reflections” and to ascertain and report on the plans

and purposes of President Jefferson and his cabinet. Simultaneously,

in his capacity as commander of the American forces, he was writing

Secretary of War Dearborn that he was “collecting topographical

information in all directions and at some expense which I am persuaded

you will find highly interesting.” The reference to expense bore the

unmistakable odor of a request for compensation.

Folch, for his part, replied that he did not have the money Wilkinson

asked and suggested that he apply to the Marquis de Casa Calvo, the

boundary commissioner, who was known to be possessed of a generous

supply of cash. Calvo accepted Wilkinson’s offer but refused to

bid higher than $12,000 for his “Reflections.” These, written and

translated, advised Spain to hold on to the Floridas or exchange them

for the west bank of the Mississippi, and meanwhile to fortify strongly

the Texas and Florida borders. This from the man who, as commander

of the United States Army, might soon be called upon to lead his men

against those same fortifications! No wonder he begged the Marquis,

upon his loyalty, honor, and friendship, to avoid the use of his name

and instead employ the designation “Number Thirteen.”

In spite of his secret work for the Spaniards, and his duties as army

commander, Wilkinson still found time for another job as Governor

of the Louisiana Territory to which he was appointed by President

Jefferson, and to curry favor with his benefactor by presenting

him with a twenty page memorial describing the country between the

Mississippi and the Rio Grande.

On a trip east in 1799 Wilkinson renewed his acquaintance with Aaron

Burr whom he visited in New York. Burr was instrumental in placing

Wilkinson’s son James in Princeton. In the spring of 1804 Wilkinson

again came east. On his arrival in Washington he lent welcome color to

the dreary newborn capital by leading a cavalcade through the streets,

mounted on a blooded mare and magnificent in the uniform of a major

general of his own designing, his stirrups and spurs of gold, his

saddlecloth a leopard’s skin with dangling claws, his son and namesake

James as military aide riding a respectful distance behind him.

Again Wilkinson sought Burr’s company, addressing a letter to him at

Richmond Hill and asking a bed for the night “if it may be done without

observation and intrusion.” Burr had broken with the Republicans by

this time and Wilkinson evidently considered it unwise for President

Jefferson’s protégé to be discovered on intimate terms with so

prominent an enemy of the Administration. Burr just then was smarting

under his defeat in the campaign for Governor of New York and his next

step was uncertain. The possibilities of fame and fortune deriving from

an invasion of the Spanish possessions could well have served as an

engaging topic for gentlemen of their adventurous temperament and vivid

imagination.

Returning to Washington Wilkinson satisfied his gregarious impulses

by rubbing shoulders with Congressmen, especially those from the

Southwest, and discussing the prospects of war with Spain, lamenting

that it was not already being waged. “Mexico,” he commented,

momentarily shifting his loyalty from Spain to the United States,

“glitters in our eyes--the word is all we wait for.”

In July the duel between Hamilton and Burr was fought. In his flight

from the New Jersey authorities Burr sought refuge in the home of

Charles Biddle, a cousin of Ann Wilkinson and a warm friend of the

General.

During the following winter in Washington, while Burr was closing out

his term as Vice-President, he and Wilkinson saw much of each other. It

was then that Wilkinson got his appointment as Governor of Louisiana.

He picked as his secretary a Dr. Joseph Brown who had married the late

Mrs. Burr’s sister. The Vice-President and the General spent much time

together. It was said they were copying maps of the Floridas, New

Orleans, and the Louisiana Territory.

Mention has been made that when, in the summer of 1805, Burr first

journeyed to the West he met with Wilkinson at Fort Massac and St.

Louis. As further evidence of their intimacy at this time Wilkinson

gave Burr letters of introduction to Daniel Clark, a former partner and

one of the wealthiest men in New Orleans, and to other friends there.

Speaking of Burr in his letter to Clark, Wilkinson wrote: “To him I

refer you for many things improper to letter, and which he will not say

to any other.” In a letter to a Spanish friend he described Burr as

a “brave, learned, eloquent, gallant, honorable, discreet gentleman,

rich in the best affections of the human heart--in short a man who has

filled the second place in the Government of the United States with

dignity and admiration.”

To Senator John Adair, Kentucky leader, he penned an intriguing note in

which he said, “He [Burr] understands your merits, and reckons on you.

Prepare to visit me, and I will tell you all. We must have a peep at

the unknown world beyond.”

Innocent though these letters may have been, the cryptic terms in

which they were couched were enough to arouse suspicion. People were

beginning to talk. In September Clark sent a warning to Wilkinson,

cautiously expressed, for letters in those days were common property;

no telling who might read one before it reached its destination. Said

Clark: “Many absurd and evil reports are circulated here and have

reached the ears of the officers of the late Spanish Government,

respecting our Vice-President.... You are spoken of as his right

hand man.... What in the name of heaven could give rise to such

extravagancies? Were I sufficiently intimate with Mr. Burr and knew

where to direct a line I should take the liberty of writing to him....

“The tale is a horrid one if well told. Kentucky, Tennessee, the State

of Ohio, with part of Georgia and part of Carolina, are to be bribed

with plunder of the Spanish countries west of us to separate from the

Union; this is but part of the business. Heavens, what wonderful doings

there will be in those days.... Amuse Mr. Burr with an account of it.”

Clark’s letter as much as said that General Wilkinson and Burr would do

well to hold their tongues.

On Burr’s visit to Wilkinson in St. Louis after his return from New

Orleans the relations between the two men appeared to be as cordial

as ever. But newspapers were asking whether there was a conspiracy on

foot to disrupt the Union. Then came Clark’s letter. Wilkinson grew

disturbed. According to his later story, he then wrote to the Secretary

of the Navy cautioning him to keep an eye on Burr. There is no evidence

that such a letter was ever received by the Secretary. Nor, at that

time, was there any indication that Burr was conscious of any change

in Wilkinson’s cordial attitude. Thus matters stood during the winter

of 1806 and into the summer when Burr set out for the West with the

intention, in his own words, “Never to return.”

On his arrival in Pittsburgh Burr dispatched the two copies of his

letter to Wilkinson, dated July 29. This was the incriminating document

a copy of which President Jefferson sent to Congress along with his

special message. It was the one on which the Government counted heavily

in proving its charge of treason. Mention has been made that one copy

went by sea to New Orleans in the hands of the German, Dr. Erich

Bollman; the other by land in care of Samuel Swartwout, younger brother

of John Swartwout, Burr’s political ally in New York. Swartwout was

accompanied by another young man, Peter Ogden, nephew of Burr’s friend,

former Senator Dayton of New Jersey. Dayton, now out of office, was

deeply involved in the intrigue. Ogden carried a letter from Dayton to

Wilkinson.

At this point the forces of Spain and the United States were drawn up

opposite each other on the Sabine River which separated Texas from

Louisiana. General Wilkinson headed the American force and was at his

headquarters at Natchitoches in western Louisiana when, on October 8,

Swartwout and Ogden arrived with the letters.

The contents of the cipher letter from Burr has been set forth. Though

Burr may not yet have begun to doubt Wilkinson’s steadfastness, he

and Dayton evidently felt that he needed prodding. With that in mind,

Dayton wrote that he had it on good authority that Wilkinson was to

be replaced at the next session of Congress. “Jefferson,” he declared,

“will affect to yield reluctantly to the public sentiment, but yield

he will; prepare yourself, therefore for it; you know the rest.” Then,

further to stiffen the General’s morale, he added: “You are not the man

to despair, or even disposed, especially when such prospects offer in

another quarter. Are you ready? Wealth and glory. Louisiana and Mexico.”

Wilkinson spent the better part of the night decoding Burr’s letter

and pondering his next step. By morning he had reached a decision,

if he had not done so already. Timidity had prevailed over adventure

and avarice. He would abandon Burr and cling to the Government. But

he needed all the shrewdness and skill at his command to make the

transition convincing and lend credence to the story he would tell. How

would an innocent man behave? The General’s first act was to summon his

subordinate, Col. Thomas Cushing, and inform him that Swartwout was

Burr’s agent and that Burr was the head of a widespread conspiracy. He

said he would make what terms he could with the Spaniards so that his

hand might be free to deal with the conspirators.

But Wilkinson did not reveal his betrayal of Burr to Swartwout. For the

next ten days he kept the young man at Natchitoches while he pumped

him dry of information and considered his next move. By October 20

he had sufficiently mapped his course to write Jefferson that he had

discovered that a powerful association, extending from New York through

the western states, had been formed for the purpose of leading an

expedition against Vera Cruz. Judging it inadvisable to name names at

this stage he stated that it was “unknown under whose authority” the

enterprise had been projected. This ten days after he had announced to

Colonel Cushing that Burr was the man!

The following day, in another confidential dispatch, he reiterated

that, “I am not only uninformed of the prime mover and ultimate objects

of this daring enterprise, but am ignorant of the foundations on which

it rests.” This letter professing complete ignorance was the one Burr

asked the court to get from Jefferson through the _subpoena duces

tecum_. No wonder.

Then in his heart-searching dilemma the General seized upon a fantastic

scheme which he thought might enable him at one and the same time to

demonstrate his loyalty to the Government without at the same time

abandoning his friends. In a postscript he asked, “Might not some plan

be adopted to correct the delirium of the associates and by a suitable

appeal to their patriotism to engage them in the service of their

country?”

If he supposed the Government would countenance an invasion of Spanish

territory he was wrong. Jefferson’s policy just then was not one of

war, but of negotiation by purchase.

Wilkinson’s immediate concern was that Jefferson might lose faith in

him. Added to other rumors of his guilt was the open charge of the

Kentucky newspaper, _The Western World_, that he was an “intriguer and

pensioner of Spain, now associated with Aaron Burr in reviving the old

Spanish conspiracy.” There was little chance that, with all its avenues

of communication, the White House would not be informed of the articles

running in _The Western World_. Wilkinson, with an initiative he seldom

showed on the battlefield, decided to take the offensive and strike

without waiting for Jefferson to inquire.

So in another letter to the President on the same day Wilkinson called

attention to the attacks, stating that he had been “bespattered

with obloquy and slandered with a degree of virulence and indecency

surpassing all example.”

“I have at times been fearful,” he confessed, “your confidence might

be shaken by the boldness of the calumnies leveled at me: but the

reflection that I have not only enjoyed but merited the confidence of

George Washington [which was far from the truth] and his administration

... and that the same illustrious character died my friend; and that

the honest but wrong-headed President Adams approved my conduct in

opposition to his ministers, combined with the consciousness that the

wealth and power of the wide world could not for the moment divert

my course from the path of honor, dissipated my apprehensions and

determined me not to descend to the task of refuting by ... testimony

and authentic documents every imputation alleged against me, from

the most frivolous to the most sane; I therefore contented myself by

directing my attorney to bring action for slander against the printers,

to test their authorities in a court of law.” Fine words but, like the

warning to the Secretary of the Navy there is no record that such a

suit was ever brought.

Whatever his other shortcomings the General was not lacking in

eloquence, especially when he was proclaiming his own virtues. He

continued: “My ultimate views are limited to the acquisition of an

honorable fame--I have ever condemned the sordid interest of the world,

and estimate property by its immediate utility only.” This from a man

in a position of high public trust who had not hesitated to sell out to

a foreign government! He went on: “... and it is the highest ambition

of my soul on a poor occasion, to spend my last breath in the cause

of my country--a frail character, but a just one.” Finally a modest

tribute to Mr. Jefferson: “To you I owe more than I will express, lest

I should be suspected of adulation, which I detest.”

Wilkinson need not have worried about Jefferson. Almost a year before

the President had had very definite warning from District Attorney

Daveiss who wrote him that he was convinced Wilkinson “has been for

years, and now is a pensioner of Spain.” Jefferson showed the letter to

Gallatin, Madison, and Dearborn, but took no further action for reasons

that later were made clear by his cabinet officers.

By November the General had effected a treaty with the Spaniards. His

lieutenant, Colonel Cushing, was marching to the defense of New Orleans

and Wilkinson was in the throes of patriotic emotion. To Cushing he

wrote, “My God! What a situation has the country reached. Let us save

it if we can.... Hurry, hurry after me, and, if necessary, let us be

buried together in the ruins of the place we shall defend!”

Now that the die had been cast Wilkinson exerted every effort to lend

authenticity to his declarations. To Governor Claiborne of New Orleans

he dashed off a startling message of warning: “You are surrounded by

dangers of which you dream not, and the destruction of the American

Government is seriously menaced. The storm will probably burst in New

Orleans, where I shall meet it and triumph or perish.”

The Governor must have been impressed by the similarity between this

message and the one he had previously received from Andrew Jackson. The

one striking difference was that in Jackson’s message the warning had

been to watch not Burr or unknown conspirators, but Wilkinson. Then the

man who had designated himself to save the nation in its hour of peril

took up his pen and indited another dispatch to President Jefferson in

his most florid style. He wrote:

“This is a deep, dark and widespread conspiracy, embracing the young

and the old, the Democrat and the Federalist, the native and the

foreigner, the patriot of ’76 and the exotic of yesterday, the opulent

and the needy, the ins and the outs.” But let not the President

despair. Wilkinson was there and “... nothing shall be omitted which

can be accomplished by indefatigable industry, incessant vigilance

and hardy courage; and I gasconade not when I tell you that in such a

cause, I shall glory to give my life to the service of my country; for

I verily believe such an event is probable.”

Wilkinson informed the President that 7000 men were descending the Ohio

River, bringing the sympathies and good wishes of that country. This

exaggerated estimate no doubt was intended to justify his declaring

martial law when he should arrive in New Orleans.

As emotionally aroused as Wilkinson appeared to be, he still was

sufficiently the hard-headed businessman to devise as clever a bit

of scheming as can be found in his long and illustrious career of

intrigue. While at Natchitoches he had taken on as military aide one

Walter Burling, a local planter. Burling asked Wilkinson’s permission

to enter Spanish territory to buy mules. Wilkinson assented, then

told Burling he had long wanted details of the route from the United

States to Mexico City and directed him to use the trip as an excuse for

reconnaissance, and to return by water.

Wilkinson then gave Burling a letter to José de Iturrigary, Spanish

Viceroy at Mexico City, in which he related the intentions of Burr

against Mexico. He laid great stress on the measures he had taken at

the risk of his life, fame, and fortune to save the Spanish possession.

His services he valued at $121,000. Simultaneously he wrote to

President Jefferson asking reimbursement for Burling’s trip, the cost

of which he put at $1500. Thus with a single stone he hoped to kill not

two birds but three. His finesse was not entirely successful. Burling

made the trip and returned safely with information about the route.

Iturrigary thanked him for his pains but refused payment saying he

already knew about Burr’s plans. Jefferson, however, obliged with the

$1500.

On November 25 the General arrived in New Orleans. He acted vigorously

in calling out the militia, repairing the fortifications, and

impressing seamen. Then he set in motion a veritable reign of terror.

When Bollman delivered his letter from Burr, Wilkinson seized him and

threw him into jail. He tried to frighten Governor Claiborne into

declaring martial law by asserting that if drastic measures were

not taken to meet the danger “the fair fabric of our independence,

purchased by the best blood of the country, will be prostrated and the

Goddess of Liberty will take her flight from the globe forever.”

Following their exoneration by the Kentucky grand jury Burr and Adair

proceeded to Nashville where they parted company. Burr boarded his

flatboats while Adair set out on horseback for New Orleans. Many

believed Adair was second in command to Burr. Oblivious of their past

intimacy, dating from the Indian campaign, and no doubt in a desperate

effort to erase the damning fact that he had introduced Adair to Burr,

Wilkinson had Adair arrested on his arrival in New Orleans. Then he

shipped Adair, Bollman, Swartwout, and Ogden under arrest by sea,

with Baltimore and Washington as their destinations, to be dealt with

by the Government. He set up a system of secret police to search for

evidence, confiscated correspondence, and arranged with the postmaster

to rifle the mails. When Governor Claiborne refused to be bullied into

declaring martial law Wilkinson declared it himself. But when he tried

to force the Louisiana Legislature to suspend the writ of habeas corpus

the members rebelled, protesting that such action would be a violation

of the Federal Constitution.

As it grew apparent that the threat of invasion had been greatly

exaggerated and that the imminent peril of the city was largely a

figment of Wilkinson’s fevered imagination, the New Orleans public

rose in revolt against this assumption of power and disregard of their

rights.

In Washington President Jefferson was receiving news of Wilkinson’s

operations and measuring the nation’s reactions. He grew alarmed. In

a carefully worded letter to the General he alluded to Wilkinson’s

mistaken notion that 7000 men were descending the Mississippi with

Burr for an assault on New Orleans. This total, Jefferson surmised,

must have been based on the estimate of the number of men who could

be raised in the western country for an invasion of Mexico under

the authority of the Government. But, suggested the President,

evidently the General had not taken into account that the instant his

proclamation reached the West and made it known that the Government did

not sanction the expedition, all honest men deserted Burr and left him

with only a handful.

The President then tactfully cautioned the General against making

wholesale arrests. His sending Bollman and Swartwout to Washington, he

said, was supported by public opinion. So would be the sending of Burr,

Blennerhassett, and Comfort Tyler, if they were apprehended. “I hope,”

added the President, “you will not extend this deportation to persons

against whom there is only suspicion, or shades of offense not strongly

marked. I fear public sentiment would desert you, because seeing no

danger here, violations of law are felt with strength. I have thought

it just to give you these views of the sentiment here, as they may

enlighten your path.”

No doubt, continued Mr. Jefferson, Wilkinson had seen the malicious

insinuations in the newspapers against him. But the President of the

United States protested that he still had faith: “I can assure you

that your conduct, as now known, has placed you on ground extremely

favorable with the public.”

Shortly thereafter a Major Bruff of the Artillery arrived in Washington

from St. Louis. He went straight to Secretary of War Dearborn and

directly accused Wilkinson of spying for the Spaniards and committing

treason with Burr. Dearborn heard Bruff out and then replied calmly

that there had been a time when the General had not stood well with the

Executive, but his energetic measures at New Orleans had regained him

executive confidence and the President would sustain him. Bruff then

appealed to Attorney General Caesar Rodney who gave him a realistic

and revealing answer. “What would be the result,” Rodney asked, “if

all your charges against General Wilkinson should be proven? Why just

what the Federalist and all the enemies of the present administration

wish--it would turn the indignation of the people from Burr on

Wilkinson. Burr would escape and Wilkinson take his place.”

There could not have been a clearer exposition of the predicament in

which Jefferson found himself. He had declared Wilkinson to be the

savior of the nation. To confess now that Wilkinson was a knave would

convict himself of gross negligence in entrusting the safety of the

western country to such a man.

As the time for Wilkinson’s presence in Richmond approached, and as

he foresaw the attack that was sure to be made on his integrity, the

General recognized the importance of clearing himself of the charges of

being a secret agent of Spain. He therefore appealed directly to his

old friend Governor Folch of West Florida, telling him he was being

slandered because of certain alleged Spanish intrigues of a criminal

nature and asking him to state whether he, Wilkinson, had ever received

a pension from the Spanish government.

The Spanish government may on occasion have been remiss about paying

the pension in full and on time, but Folch now met nobly every

obligation his government owed the General. In a private letter to

Wilkinson whom he addressed as “my dear friend” he assured him he

had sent all the documents that pertained to “the ancient history” to

Havana, “persuaded that before the United States are in a situation

to conquer that capital, you and I and Jefferson, Madison and all

the secretaries ... will have made many days’ journey into the other

world.” Folch reminded Wilkinson that he had been in Louisiana since

1783 and had enjoyed confidential relations with his uncle, Governor

Miro, and declared that no document showing Wilkinson to have been

a secret agent in the pay of Spain existed in the records. Then in

a public letter he came out handsomely with the statement that “his

[Wilkinson’s] qualities as an honest man and one faithful to his

country entitle him to your particular attention and regard and we

judge him to be worthy of the commission he holds.”

Such was Folch’s exoneration of Wilkinson when only a few weeks before,

as Burr and his men were traveling down the Mississippi toward Spanish

territory, Yrujo, Spanish minister to the United States, was assuring

Don Cevallos, Spanish Foreign Minister, that the governors of the

Floridas were being informed of what was going on through Folch’s

connection with Wilkinson.

In assuring Wilkinson that his conduct had “placed him on ground

favorable with the public” Mr. Jefferson could not have included that

sizable portion of it that just then regarded Wilkinson as a brother in

crime with Burr, who at the last minute had lost his nerve and betrayed

his partner in a valiant attempt to save himself.

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

_Chapter_ X

District Attorney Hay had asked that Burr be confined or that his

bail be raised for fear he would run away rather than face his former

friend and present accuser, General James Wilkinson. On the other hand,

there were quite as many people who harbored the belief that General

Wilkinson would not dare to come face to face with Burr.

Among the latter was John Randolph of Roanoke who, at the time, was

keeping up a lively correspondence with Joseph H. Nicholson, a former

colleague in the House of Representatives and now a Federal judge in

Baltimore. As late as May 31, while still waiting impatiently for the

appearance of the dilatory star witness, Randolph wrote to his friend:

“There are, I am told, upwards of forty witnesses in town, one of

whom (General Jackson of Tennessee) does not scruple to say that W

[Wilkinson] is a pensioner of Spain to his knowledge and that he will

not dare to show his face here.”

But just as Colonel Burr upset Hay’s prediction by announcing

his presence whenever his name was called, so General Wilkinson

disappointed his critics by at last showing up. Having traveled from

New Orleans by sea he landed at Hampton, Virginia. On June 10 his

arrival in Richmond by stage was announced. He was reported to be

exhausted from his journey, but his appearance did not bear out that

impression. As befitted the senior officer of the United States Army,

he exhibited himself to the public resplendent in his major general’s

uniform. To add to the impressiveness of his entry on the scene he was

constantly attended in public by his military aides, including his

son, Lieutenant James Wilkinson, Lieutenant Edmund Pendleton Gaines,

who had received Burr as a prisoner in Alabama, and Lieutenants Murray

and Smith. Gaines in later years was to achieve distinction in the War

of 1812 and eventually attain command of a department of the United

States Army. Still another member of the Wilkinson party was Mr. John

Graham, President Jefferson’s special agent who had trailed Burr after

the issuance of the presidential proclamation. This group, augmented by

their servants, produced quite a spectacular array.

On Monday, June 15, the long-awaited personal encounter between Burr

and Wilkinson took place. It was a dramatic moment worth recording

for posterity, and several first-hand accounts were duly put on paper

immediately after the event and thus preserved. General Wilkinson

himself was the author of one of them. His was written especially

for the eye of the President and it was executed in the General’s

customarily vivid manner. Colonel Burr was already in the courtroom

when Wilkinson entered. Said the General in his letter to Jefferson:

“I was introduced to a position within the bar very near my adversary.

I saluted the bench and in spite of myself my eyes darted a flash

of indignation at the little traitor, on whom they continued fixed

until I was called to the Book--here, Sir, I found my expectations

verified--this lion-hearted, eagle-eyed Hero, jerking under the

weight of conscious guilt, with haggard eyes in an effort to meet

the indignant salutation of outraged honor; but it was in vain, his

audacity failed him. He averted his face, grew pale, and affected

passion to conceal his perturbation.”

Altogether different was the impression made by the incident on

Washington Irving who was among the spectators in the courtroom

that morning. Allowance must, no doubt, be made for the fact that

Irving counted himself as being in the Burr camp and was altogether

sympathetic with the Colonel in his misfortune. According to Irving,

Burr, his back to the entrance, was facing the judge and conversing

with his counsel when the General arrived. “Wilkinson,” said Irving,

“strutted into Court, and took his stand on a parallel line with

Burr on his right hand. Here he stood for a moment swelling like a

turkey-cock, and bracing himself up for the encounter of Burr’s eye.

“The latter did not take any notice of him until the judge directed

the clerk to swear General Wilkinson. At the mention of his name Burr

turned his head, looked him full in the face with one of his piercing

regards, swept his eye over his whole person from head to foot, as if

to scan its dimensions, and then coolly resumed his former position and

went on conversing with his counsel as tranquilly as ever. The whole

look was over in an instant, but it was an admirable one. There was no

appearance of study or constraint in it; no affectation of disdain or

defiance; a slight expression of contempt played over his countenance,

such as you would show on regarding any person to whom you are

indifferent, but whom you considered mean and contemptible.”

In the next issue of the _Enquirer_, Editor Ritchie, under his nom de

plume of the “Resident of Richmond Hill,” presented a third version of

the encounter. He, of course, championed the Government’s star witness,

as the mouthpiece of the Jefferson Administration would have been

expected to do.

“He [Wilkinson],” wrote Ritchie, “has met Colonel Burr in the presence

of the court and a gaping crowd, but who can say that his countenance

was flushed and apprehensive or sicklied o’er with the pale cast of

fear and guilt? That was a deep mortification to some; had he but

fainted or betrayed the least timidity, it would have been a luscious

conquest of federalism.”

Still another witness of the scene who, in spite of the heat of that

partisan battle, somehow managed to maintain a neutral attitude,

reported that the meeting had been anticipated for so long by the two

principals and had been so often rehearsed in their imaginations that

the actual performance of neither party was convincing. Such is the

evidence which posterity is invited to hear and weigh, and from it

arrive at a decision as to which of the two principals came off the

better.

The “Resident from Richmond Hill,” having dealt with the meeting of

Burr and Wilkinson, could not resist the opportunity of reporting his

impressions of Luther Martin, lawyer for the defense. Said he: “As I

have mentioned the bar, permit me to introduce a strange lawyer from

a neighboring State whose character towers to the highest sphere of

jurisprudence. My expectations were at first as extravagant as his

character. I marked him in my mind’s eye as a happy standard by which I

might form some estimate of the Virginia bar. But pardon me ye critics

and eulogists of Mr. M. ... if I cannot join in the forensic paean, if

instead of placing him in the zenith I put him in the nadir.”

General Wilkinson’s presence in court was brief. The Grand Jury,

which had been waiting so long, was impatient to hear him. Grand jury

proceedings are customarily regarded as sacred and what goes on behind

closed doors is supposedly held in the strictest confidence. But the

Grand Jury in the Burr case, like so many other features of that

strange performance, refused to conform to the normal pattern. At least

one serious leak led to a controversy in the press. In his continued

correspondence with Judge Nicholson the jury’s foreman set down some

salty observations. Nor was the star witness silent. His experience

gave him another chance to unburden himself to his patron in Washington.

Wilkinson brought with him into the jury room the original of the

famous letter in cipher which he had received from Burr by the hand of

Samuel Swartwout. It was a complicated cipher which baffled the jury,

with one exception. That exception was John Randolph of Roanoke who

gave a demonstration of his remarkable intellect by mastering the key

at once and explaining the solution to his less astute fellow jurymen.

The General’s reception was less than cordial. To a man who claimed

to have saved his country through his bold and patriotic actions the

militant attitude of the Grand Jury was painful indeed. The General

made his lament to Jefferson: “I dreamt not of the importance attached

to my presence before I reached Hampton ... for I had anticipated that

a deluge of testimony would have been poured forth from all quarters

to overwhelm him [Burr] with guilt and dishonor.” That, perhaps, to

excuse his having kept the Grand Jury waiting. “Sadly, indeed, was I

mistaken, and to my astonishment I found the traitor vindicated and

myself condemned by a mass of wealth, character, influence and talents.

Merciful God, what a spectacle did I behold--integrity and truth

perverted and trampled under foot by turpitude and guilt, patriotism

appalled and usurpation triumphant. Did I ever expect it would depend

on my humble self to stop the current of such a polluted stream? Never,

never.”

Why the Grand Jury did not overwhelm Wilkinson with manifestations of

appreciation and gratitude is revealed by John Randolph in a letter

to Nicholson reporting on the indictments: “But,” said Randolph, “the

mammoth of iniquity escaped. Not that any man pretended to think him

innocent, but upon certain drawn distinctions that I will not pester

you with.

“Wilkinson is the only man that I ever saw who was from the bark

to the very core a villain. I cannot enter upon it here. Suffice

it to say that I have seen it--so that it is not susceptible of

misconstruction.... Perhaps you never saw human nature in so degraded

a situation as in the person of W. before the G. J., & yet this man

stands on the very summit and pinnacle of executive favor--whilst Jas.

M--e [James Monroe] denounced....” Just then Monroe stood in Randolph’s

good graces. But like so many others he soon was to incur that

inconstant gentleman’s displeasure.

A few days later Randolph wrote again: “W-- is the most finished

scoundrel that ever lived. A ream of paper would not contain all the

proofs--but what of that? He is ‘the man whom the king delighteth to

honor’ & all who are in search of promotion find it to their interest

to shut their eyes and ears to the evidence of the guilt--among them I

could name some, whom I blush to think upon.”

Randolph then described in detail the scratches with a pen-knife

and restorations in the Burr letter which he claimed were made in

Wilkinson’s own handwriting. He concludes: “Let me know what the

opinion is with you of this redoubtable thief taker (set a thief etc.)

who commands our armies.”

In another of his emotional letters to the President, Wilkinson

confessed his perplexity at the direction the case had taken: “You are

doubtless well aware,” he wrote, “of the proceedings here in the case

of Burr. To me they are incomprehensible as I am no jurist. The Grand

Jury actually made an attempt to present me for suspicion [Wilkinson

meant “misprision”] of treason on the ground of having failed to report

Dayton to you. I feel myself between Scylla and Charybdis. The jury

would dishonor me for failing in my duty, and Burr and his conspirators

for performing it.”

The jury’s treatment of Wilkinson provided the subject for a bitter

dispute that ran for days in the pages of the _Enquirer_. Under the

heading “Drowning Men Catch At Straws,” Editor Ritchie set forth

that he was authorized to contradict the slander uttered in Davis’s

_Virginia Gazette_ and _Daily Advertiser_ (The _Enquirer_’s Federalist

rival) that a motion had been made before the Grand Jury to present the

General for high treason and that on the question the jury had divided

equally.

The _Enquirer_ traced the story to “Mumford Beverly Esq., an unworthy

member of the jury, of whose attachment to monarchy and sympathy for

Burr no doubts are admitted.” A few days later Mr. John Brockenbrough,

cashier of the Bank of Virginia and a juryman, entered the controversy.

Mr. Brockenbrough said he felt no disposition to interfere in the

controversy between General Wilkinson and his friends and Mr. Beverly,

but he deemed it his duty to state the facts. He said he had not voted

for presenting General Wilkinson for high treason, for no such vote was

taken, to his knowledge.

A whole month was allowed to elapse before juryman William Daniel Jr.

at last straightened out the matter. The motion was not to present

Wilkinson for “high treason,” but for “misprision of treason.” And,

said Mr. Daniel, the jury had been seven for and nine against.

In view of the battering he had received from the Grand Jury in his

gallant effort to serve the Administration, the poor, maltreated

General was gravely in need of sympathy and moral support. And he

got it. To his lamentation the President replied: “Your enemies have

filled the public car with slanders and your mind with trouble on

that account. The establishment of their guilt will let the world

see what they ought to think of their clamors; it will dissipate the

doubts of those who doubted for want of knowledge and will place you

on higher ground in the public estimation and public confidence.” Then

wholeheartedly and without reservation Jefferson declared: “No one is

more sensible than myself of the injustice which has been aimed at

you. Accept, I pray you, my salutations and assurances of respect and

esteem.”

Surely no President of the United States ever expressed gratitude in

such extravagant terms to a subordinate who deserved it less. Necessity

makes strange bedfellows.

While the Grand Jury was behind closed doors examining witnesses,

stagnation settled on the courtroom. Again there was need for diversion

to while away the time. The ever-resourceful Burr, seldom wanting for

an idea, supplied it. He moved that an attachment be issued against

General Wilkinson for contempt in obstructing the administration of

justice by rifling the mails, imprisoning witnesses, and extorting

testimony by torture. The allusions were to his behavior in New Orleans.

The motion at least afforded opportunity for several witnesses to pour

out lurid stories of their experiences at the hands of the tyrant. It

caused Wilkinson personal embarrassment--if that were possible--by

bringing him back into court, and gave counsel on both sides a chance

to disport themselves in prolonged argument.

On June 24, while these arguments were being heard, the Grand Jury,

led by its foreman, John Randolph, filed majestically into the

courtroom and took seats in the jury box. Argument on Burr’s motion was

immediately suspended. A profound silence fell over the assemblage and

every ear was strained as Mr. Randolph, addressing the bench, announced

that the jury had agreed upon several indictments. He then handed the

official document to the clerk who read aloud the endorsements:

“An indictment against Aaron Burr for treason.”

“An indictment against Aaron Burr for misdemeanor.”

“An indictment against Harman Blennerhassett for treason.”

“An indictment against Harman Blennerhassett for misdemeanor.”

Burr, according to those present, on hearing the indictment read,

displayed no emotion. He accepted the action of the Grand Jury as

calmly as he had accepted all his misfortunes. There seems to have

been no justification for the statement in one of the local papers

next day that the prisoner was thrown into a state of consternation

and dismay. Such behavior would have been so out of keeping with the

man’s character that the report can be safely attributed to Republican

propaganda.

After the Grand Jury had withdrawn, Judge Marshall announced that

he was now under the necessity of committing Burr. So, late in the

afternoon, the former Vice-President of the United States had to

undergo the humiliation of being conducted by the marshal through a

concourse of hundreds of curious people to the city jail, notorious for

its filth and vermin. There for the night he shared a room with a man

and woman and was in close proximity to the other prisoners.

Next day the Grand Jury indicted for treason and misdemeanor ex-Senator

Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort

Tyler, Israel Smith, and Davis Floyd.

Dayton went out of office on the same day Burr ceased to be

Vice-President. After that they were known to be closely associated.

Some people believed that the treasonable projects on which they were

supposed to be engaged were as much the handiwork of Dayton as of Burr.

It was Dayton’s nephew, Peter Ogden, who carried a letter to Wilkinson

along with Samuel Swartwout who carried the letter from Burr.

Senator Smith had been suspected of being engaged in the plot from the

time Burr stopped with him at Cincinnati in the summer of 1805. When

invited by the Kentucky Grand Jury to testify to the charges brought by

Daveiss he had discreetly disappeared.

Comfort Tyler, Israel Smith, and Davis Floyd were minor leaders of the

expedition. Tyler, who came from Onandaga, New York, had served with

Burr in the New York Assembly and there fell under his spell. Israel

Smith also was a New Yorker and Davis Floyd was from Indiana Territory.

They were no doubt indicted because they were present on Blennerhassett

Island and took part in any overt act which might have taken place

there and on the proof of which the charge of treason depended.

Burr’s first thought was for his daughter Theodosia. She must be

spared anxiety and mortification. From his cell in jail he penned

her a hurried letter in which he gave no inkling of his disgusting

surroundings. The indictment for treason, he explained, was founded on

the allegation that Col. Comfort Tyler, with 20 or 30 men, had stopped

at Blennerhassett Island on the way down the Ohio and “... that though

these men were not armed, and had no military array or organization,

and though they did neither use force nor threaten it, yet having set

out with a view of taking temporary possession of New Orleans on their

way to Mexico, that such intent was treasonable, and therefore a war

was levied on Blennerhassett Island by construction.”

The Colonel went on to say that though he was at that time in

Frankfort, Kentucky, on his way to Tennessee, nevertheless, having

advised the measure, he was by construction of law present at the

island and levied war there. “In fact the indictment charges that Aaron

Burr was on that day present at the island, though not a man of the

jury supposed this to be true.”

Of the 50 witnesses who were examined by the Grand Jury, said Burr, “it

may be safely alleged that 30 at least have been perjured.” He closed

his letter with a characteristically stoical injunction: “I beg and

expect it of you that you will conduct yourself as becomes my daughter,

and that you manifest no signs of weakness or alarm.” Was he thinking

of that long line of Puritan ancestors stretching back through New

England to the old England? He need have no concern on the score of

Theodosia’s behavior. A word from her father was the equivalent of a

command. She had never failed him yet.

After Burr had spent two uncomfortable nights in the city jail his

counsel complained bitterly to the Chief Justice. They warned that

the unsanitary conditions in the jail would break down his health.

The lack of privacy, they claimed, would interfere seriously with

the consultations with his lawyers and impair his defense. Moved by

these appeals, Judge Marshall consented that the prisoner should

occupy a room in a house which had been rented by Luther Martin across

the street from the Swan Tavern. Consent was given on condition

that suitable shutters and door fastenings be installed to insure

the security of the prisoner and that a guard of seven men be kept

constantly on duty.

These terms were accepted. The installations were inspected and

declared secure by none other than Benjamin H. Latrobe, the country’s

leading architect and at the moment President Jefferson’s Surveyor

of Public Buildings, who was then busily employed in redesigning the

national Capitol. Latrobe had been approached by Burr with a proposal

to take part in building a canal around the falls of the Ohio at

Cincinnati and was among the many persons hauled in by the Government

to give testimony.

Burr and the architect were to have another relationship of which

neither of them had dreamed. Latrobe had but recently completed a

design for a penitentiary at Richmond, for the State of Virginia,

drawn up according to the specifications of Jefferson. The building

had been erected and it met all the very latest requirements set forth

by the penologists. In addition to its functional excellence it was a

noble structure characteristic of Latrobe’s imagination and genius. It

occupied a commanding position overlooking the James River on a lofty

hill next door to the one on which stood the Gray House of Robert

Gamble. That, too, it will be recalled, was the work of Latrobe. It

now housed Colonel Gamble and his wife, his two daughters, and his

sons-in-law, Governor William Cabell and William Wirt.

Since the imprisonment of Burr in Mr. Martin’s house had brought forth

charges of favoritism, Governor Cabell hit on a plan to save Judge

Marshall embarrassment by graciously offering the court quarters for

Burr in the penitentiary. The offer was accepted by his counsel on the

understanding that, as soon as the trial commenced, the prisoner should

be returned to the Martin house in town.

So it was that Colonel Burr was transferred to the penitentiary. If in

fact, as some alleged, he had plotted to make himself an emperor, the

structure in which he was now imprisoned provided a romantic setting.

The massive walls and the sturdy tower needed only a banner floating

over them to give every appearance of a castle or other imperial

stronghold. It was the nearest thing to regal quarters he would ever

occupy.

This important housekeeping matter attended to, the prisoner was

arraigned and pleaded “not guilty” to the charges. The Court ordered

the United States Marshal to summon a panel of 48 men to report on

August 3. From these a jury was to be picked for the trial.

The time had come for another intermission. With the intermission came

the need for further divertissement. Being secured in prison, Colonel

Burr was in an awkward position to supply it. This time the local

populace and the visitors to the town who had come to take part in the

trial were to be relieved of their boredom by the navy of His Britannic

Majesty, King George III.