_Chapter_ XI

On the afternoon of June 22, a few miles outside the Virginia Capes,

the British frigate _Leopard_ fired on the U.S. frigate _Chesapeake_,

killing three men, severely wounding eight, and slightly wounding

ten. Among the slightly wounded was Commodore James Barron, ranking

officer on the _Chesapeake_. The American frigate, taken by surprise

and totally unprepared for action, fired one shot of protest and struck

her colors. A party from the _Leopard_ then boarded the _Chesapeake_,

subjected it to the indignity of mustering its crew, and removed from

it four men alleged to be deserters from a British man-of-war.

The issue of impressment was then at its height. The British Navy,

short of manpower, charged that many of its men were deserting to the

American merchant marine to enjoy better pay and working conditions.

It was not at all unusual for British men-of-war to hail American

merchantmen on the high seas and search them for deserters. Nor were

the British too careful about the men they took off, frequently

including American citizens among them. This practice had been bitterly

resented by a large part of the American public, but, while complaints

had been made to the British Government, the abuse had not yet been

considered a cause for war.

The incident of the _Leopard_ and the _Chesapeake_, however, was

different. This was the first time a British man-of-war had thus dealt

with an American man-of-war. It therefore assumed the proportions of a

national insult.

In spite of the primitive communications of the times, the bad news

traveled with astonishing speed. Three days after the clash between

the two ships word of it reached Washington. It spread rapidly to the

cities up and down the coast. As it spread public indignation rose to

fever heat. Political animosities were for the time being forgotten

as the public seethed with resentment at this latest outrage at the

hands of the British Navy. The bitterness of the days of the Revolution

against King George III, who, though old and broken mentally, was still

on the throne, was revived. President Jefferson later remarked that at

that moment he held the issue of peace and war in the hollow of his

hand.

The Richmond community shared wholeheartedly in this tidal wave of

indignation. The sensational news from Norfolk reached the city

almost simultaneously with the Grand Jury’s indictment of Burr and

Blennerhassett and their alleged fellow conspirators. Momentarily the

trial yielded first place in the public consciousness to this threat

against national sovereignty from abroad.

In its issue of Saturday, June 27, the _Enquirer_ published a dispatch

from Norfolk, dated three days earlier, which revealed the intensity

of public feeling there and clarified the reports and rumors that had

reached Richmond by presenting an orderly account of what had actually

happened.

“We are now to present our readers,” said the _Enquirer_, “the details

of the most unexampled outrage, on the perpetration of which the blood

of our countrymen has been shed by the hand of violence, and the honor

and independence of our nation insulted beyond the possibility of

further forbearance.” There followed a vivid account of the attack.

Most of the young male population of Richmond was organized into

uniformed militia companies among which there was a strong and healthy

rivalry. They seized upon this opportunity to demonstrate their

patriotism and willingness to strike a blow in preserving the nation’s

honor. The Richmond Light Infantry Blues assembled at the Bell Tavern

and adopted resolutions declaring that “Members of this company pledge

their fortunes and their lives.” The Manchester Cavalry, meeting across

the river at Brooks Tavern, resolved that “We render our services to

the Government.” The smart Richmond Troop of Cavalry, calling its

members to the Eagle Tavern, appointed a committee to draft a suitable

address to the President of the United States making a tender of its

services.

The demonstrations of loyalty were not confined to the military. On

July 1 a great mass meeting of the citizens of Richmond and Manchester

and their vicinities was assembled to take under consideration the

“late hostile attack upon the _Chesapeake_.” Judge Spencer Roane, of

the Virginia Court of Appeals, was in the chair. Editor Thomas Ritchie

acted as secretary. John Gamble, Colonel Robert Gamble’s son; Peyton

Randolph, Edmund’s son; the venerable mayor Dr. Foushee; William Wirt;

and District Attorney Hay were among the speakers who swayed the

crowd. At the conclusion of the meeting a letter was addressed to the

President of the United States asserting that “While we are sensible of

the evils which must result from war, we are prepared to encounter them

in defense of our dearest rights.”

Not content with the _Leopard_ having humiliated the United States

Navy by its attack on the _Chesapeake_, the commander of the British

squadron, which included the offending frigate now anchored in

Lynnhaven Bay, poured salt on the wound by addressing threatening

remarks to the authorities of Norfolk. Governor William Cabell

interpreted this as a threat and an insult to the sovereign State

of Virginia. He promptly called his council together and, after

consultation with it, issued an order to the Virginia militia to march

to Lynnhaven Bay and there oppose any offensive action the British

might take.

Among the militia contingents were some from Richmond and there were

few dry eyes as they marched off down Main Street to what many believed

would soon be war.

One interested spectator at the trial up to this point found his

enthusiasm shifting from the court to the military. Winfield Scott,

though not then a member of the militia, mounted his horse and rode

posthaste thirty miles through the night to his home town of Petersburg

to volunteer his services. They were accepted, but the quartermaster

was hard put to it to find a uniform large enough for the youth’s

massive frame. Somehow the problem was solved and Scott accompanied the

Petersburg troops to Norfolk. This was his first taste of military life

and it got into his blood. From then on the army, not the bar, was his

vocation.

Still another man to succumb to the military contagion was William

Wirt. To his friend Dabney Carr he wrote an impassioned letter

announcing his intention to hand his wife back to her father for

the time being and join the army. Wirt formed an ambitious plan for

creating a legion of four regiments; he was to be the colonel of one,

Carr colonel of another. For a few days his letters re-echoed the

idea. But the plan aroused opposition and, as the war fever abated,

the proposal died. Thereafter Wirt was as completely wedded to the law

as Winfield Scott was to the military. Wirt’s brief dabbling in the

military was to serve as a source of ridicule among his contemporaries.

In the very middle of the excitement over the _Leopard-Chesapeake_

affair came July 4. Even under ordinary circumstances the anniversary

of the signing of the Declaration of Independence was regularly

observed by the Richmond community with appropriate ceremonies as a

patriotic celebration. The crisis acted as an extra stimulus on this

occasion.

At daybreak the populace was awakened by the firing of a single gun. At

sunrise there followed a salute of seventeen guns. Those units of the

military which had not gone to Norfolk played a conspicuous part in the

ceremonies. At 9 A.M. a troop of light horse, three volunteer companies

of light infantry, and several more militia companies assembled on

the parade ground. From there they marched to the Capitol Square with

bands playing and colors flying. Meanwhile, in the House of Delegates,

where Judge Marshall’s court had so recently adjourned, the more sedate

people of the community were listening to orations from leading

citizens of the town, then a popular form of entertainment.

At 2 P.M. the military and civilians joined forces in the Capitol

Square. There, according to regular custom, the military formed a great

circle and from the center Mayor Foushee solemnly read the Declaration

of Independence. At its conclusion three cheers were given, the band

struck up “Yankee Doodle” and followed it by “Hail, Columbia,” while

soldiers and civilians joined in the chorus.

A silence then fell over the crowd as Shelton Jones, Esquire,

distinguished for his eloquence, mounted the platform and delivered a

funeral oration in memory of the seamen who had lost their lives on the

_Chesapeake_. During the oration the troops stood at attention with

arms reversed and, as the orator concluded his address, the solemnity

of the occasion was emphasized by the roll of muffled drums and the

firing of minute guns.

These serious ceremonies duly performed, the public now turned to the

lighter features of the celebration. The militia companies repaired

to the various places of entertainment previously designated for

them while many of the civilians assembled in the Capitol for the

drinking of toasts. Word had gone out that in keeping with the theme of

independence native drinks--and no others--were to be the order of the

day. At the Capitol the official count showed that seventeen standing

toasts were drunk, the first having been proposed by Governor Cabell.

There is no mention of the Chief Justice having been present at the

celebration at the Capitol. But Richmond was a busy place that day and

the festivities were by no means confined to one spot. His absence

from the Capitol might have been traced to another and more exclusive

assemblage at an inviting spot several miles to the west of the town

known as Buchanan’s Spring. This was a shady picnic spot on the

property of the Rev. John Buchanan. It was the regular meeting place

of the social organization known as the Barbecue Club, of which Judge

Marshall was an enthusiastic member. The club, composed of the leading

citizens of the town, had already been in existence some twenty years

and it met regularly for sumptuous dinners at which individual members

took turns at being host. The Fourth of July was always the occasion of

a meeting of the club.

The dinner, laid out on a table under an open shed, had been

prepared by Jasper Crouch, Richmond’s most popular caterer. Crouch

enjoyed eating food as much as he did preparing it and, according to

contemporary accounts, he had by this time “acquired gout and the

rotundity of an alderman.” The custom of the club forbade either

dessert or wine. The ample meal was washed down with toddy, punch, and

mint julep. A diversion greatly enjoyed by members of the club was

pitching quoits, at which the Chief Justice excelled. Tradition has

it that his quoits were made especially for him and were heavier than

those used by other members.

One celebrity who, perforce, was unable to join the general public

in these festivities was Colonel Burr. He was now a prisoner in the

penitentiary; and, if his own word is to be believed, every effort

both official and unofficial was being exerted to make his stay there

as comfortable as possible. To Theodosia he wrote describing the

considerate behavior of his jailer:

“Jailer: ‘I hope, Sir, that it would not be disagreeable to you if I

should lock this door after dark?’

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

“Jailer: ‘It is our custom, Sir, to extinguish all lights at 9 o’clock.

I hope, Sir, you will have no objection to conform to that.’

“Burr: ‘That, Sir, I am sorry to say, is impossible, for I never go to

bed till 12, and always burn 2 candles.’

“Jailer: ‘Very well, Sir, just as you please. I should have been glad

if it had been otherwise, but, as you please, Sir.’”

A few days later Burr wrote Theodosia again: “My friends and

acquaintances of both sexes are permitted to visit me without

interruption, without inquiring their business, and without the

presence of a spy. It is well that I have an ante-chamber, or I should

often be gené with visitors.”

Alluding to the possibility of Theodosia joining him in Richmond, he

added: “If you come I can give you a bedroom and parlor on this floor.

The bedroom has three large closets, and it is a much more commodious

one than you ever had in your life.” Once more he admonished her

to observe the stoical role he expected her to play: “Remember, no

agitations, no complaints, no fears or anxieties on the road, or I

renounce thee.”

Among Richmond’s smart society it became the fashion to prepare dainty

dishes for the distinguished and charming prisoner now suffering

persecution at the hands of the irascible tyrant in the White House.

The Colonel was overwhelmed with wine jelly, a favorite Richmond sweet.

Lemons, pineapples, and other rare and exotic fruits were showered

upon him. Admirers brought him fresh butter; and to preserve it in

the torrid heat of a Richmond summer, an icebox was installed and

generously stocked by the owners of icehouses. In short, his friends

did all they could during the weeks he was behind the bars to relieve

the ennui of his confinement and to supply him with all the luxuries

his fastidious nature craved.

The ladies were foremost in their attentions. This was in contrast to

the behavior of some of the men. In a letter to a friend, Washington

Irving reported that it had almost been considered culpable to evince

toward Burr the least sympathy or support. He had, he said, seen many a

“hollow-hearted caitiff,” who basked in the sunshine of Burr’s bounty

when he was in power, and who now skulked from his side and mingled

among the most glamorous of his enemies. But this, heaven be praised,

was not the attitude of the ladies.

“The ladies alone,” observed Irving, “have felt, or at least had candor

and independence sufficient to express these feelings which do honor to

humanity. They have been uniform in their expressions of compassion for

his misfortunes, and a hope of his acquittal; not a lady, I believe, in

Richmond, whatever may be her husband’s sentiments on this subject, who

would not rejoice on seeing Col. Burr at liberty. It may be said that

Col. Burr has ever been a favorite with the sex; but I am not inclined

to account for it in so illiberal a manner; it results from that

merciful, that heavy disposition, implanted in the female bosom, which

ever inclines in favor of the accused and the unfortunate.”

Irving might have observed that the actions of some of the ladies,

whose husbands were in some manner connected with the trial, could well

have caused those husbands embarrassment. It was fortunate for them

that Richmond viewed the personal entanglements with a tolerance that

has seldom been granted in other criminal cases.

Irving could, for example, have been referring to Mrs. Robert Gamble.

The former Catherine Grattan, who had braved Indians and panthers and

other perils of the frontier in her youth, was not now to be overawed

by a son-in-law who was one of the leading lawyers for the prosecution.

Let William Wirt employ his eloquence to get Aaron Burr hanged.

Nevertheless Mrs. Gamble felt free to send refreshments from her

kitchen to the prisoner. After all, were they not neighbors? The Gray

House and the penitentiary occupied adjoining promontories. They shared

equally the architectural genius of Benjamin Henry Latrobe. Why should

not Catherine Grattan Gamble welcome Burr with all the courtesies

customarily extended by Richmonders to a new resident with the proper

social background?

Irving’s description of Burr in prison was nothing like so glowing as

that of Burr himself. The only reason for immuring the Colonel in that

abode of “thieves, cut-throats and incendiaries,” commented Irving, was

that it would save the United States a couple of hundred dollars, which

would have been the charge for guarding him at his lodgings.

Contrary to Burr’s statement that his friends had ready access to him,

Irving reported that, “I found great difficulty gaining admission to

him for a few moments. The keeper had orders to admit no one but his

counsel and his witnesses--strange measures these!

“That it is not sufficient that a man against whom no certainty of

crime is proved, should be confined by bolts, and bars and massy

walls in a criminal prison; but he is likewise to be cut off from

all intercourse with society, deprived of all the kind offices of

friendship, and made to suffer all the penalties and deprivations of a

condemned criminal. I was permitted to enter for a few moments, as a

special favor, contrary to orders.” Could it have been that the Colonel

was afraid the enthusiastic young man might stay too long?

Irving thought the Colonel seemed in lower spirits than formerly.

He was composed and collected as usual, but there was not the same

cheerfulness that Irving had hitherto remarked. The Colonel told

him that it was with difficulty that his very servant was allowed

occasionally to see him. “He had a bad cold, which I suppose was

occasioned by the dampness of his chamber which had lately been

whitewashed.” It was with a heavy heart that Irving left him.

The Colonel’s and Irving’s accounts of the imprisonment could hardly

be more contradictory. But then Burr was trying to relieve Theodosia’s

anxieties, whereas Irving’s purpose in being in Richmond was to use his

talents to turn public opinion in Burr’s favor.

Irving’s obligation to Burr’s friends for enabling him to be present at

the trial was not a small one. The young man at this stage of his life

delighted in mingling with the great and the near-great and he had had

a rare opportunity to do so in Richmond.

To his brother-in-law James Paulding, associate editor of _Salmagundi_,

he wrote enthusiastically of his experience: “I have been treated in

the most polite and hospitable manner by the most distinguished persons

of the place--those friendly to Burr and those opposed to him, and have

intimate acquaintances among his bitterest enemies. I am absolutely

enchanted with Richmond, and like it more and more every day. The

society is polished, sociable and extremely hospitable, and here is a

great variety of distinguished characters assembled on this occasion,

which gives a strong degree of interest to passing incidents.”

But there must be an end to all good things. Irving had his magazine in

New York to think about. No telling how long the trial would take. He

had been in Richmond two months and the Court had done no more than get

through the preliminaries. So before the actual business of trying Burr

began, Irving had to set out on his return home. On the way he stopped

off in Washington and from there wrote a letter to his confidante, Miss

Mary Fairlee, a charming young person who then was the reigning belle

in New York. To her he confided that, as much as he enjoyed Richmond

society, he had been faced by a serious personal problem. It was of a

sort that was likely to happen to a handsome and eligible young man on

his first appearance in a community. He was pursued by designing young

women.

“By some lucky means or other,” Irving informed Miss Fairlee, “I

got the character, among three or four novel-read damsels, of being

an _interesting young man_ [the italics are Irving’s]; now of all

characters in the world, believe me, this is the most intolerable for

any young man, who has a will of his own to support, particularly in

warm weather. The tender-hearted fair ones think you absolutely at

their command; they conclude that you must, of course, be fond of

moonlight walks, and rides at daybreak, and red-hot strolls in the

middle of the day (Fahrenheit’s Thermom. 98½ in the shade) and ‘melting

hot-hissing hot’ tea parties, and what is worse, they expect you to

talk sentiment and act Romeo, and Sir Charles and King Pepin all the

while! ’Twas too much for me; had I been in love with any one of them,

I believe I could have played the dying swain, as eloquently and

foolishly as most men, but not having the good luck to be inspired by

the tender passion, I found the slavery unsupportable; so I forthwith

set about ruining my character as speedily as possible.

“I forgot to go to tea parties; I overslept myself of a morning.

I protested against the moon and derided that blessed planet most

villainously. In a word I was soon given up as a young man of most

preposterous and incorrigible opinions, and was left to do e’en just

as I pleased. Yet, believe me, I did, notwithstanding, admire the

fair damsels of Richmond exceedingly; and, to be candid at once, the

character of the whole sex, though it has ever ranked high in my

estimation, is still more exalted than ever.”

Bless the young man! The fair damsels would have been flattered at

his general impressions of them, even though not one of them had

succeeded in winning his heart. They may have reflected that, had they

encountered him when Richmond weather was more on their side they

might have made greater headway. If Miss Fairlee was as sentimentally

inclined as the young ladies in Richmond she must have felt reassured

by this evidence that the handsome young Washington Irving would

return home to New York as detached and uninvolved as though he had

never been exposed to the wiles of designing southern belles. On the

other hand, after reading the letter and reflecting on the character

it unconsciously revealed, might she not have concluded that Irving’s

imperviousness to the assaults of impressionable females knew no

sectional bounds?

During the first week in June the _Enquirer_ in its columns had hailed

the arrival in Richmond of the “celebrated Cowper.” The _Enquirer_

hoped that the manager of the new brick theater on the edge of Shockoe

Hill would not fail to avail himself of the opportunity of gratifying

the public by engaging him for a few evenings at least.

The “celebrated Cowper” was without doubt Thomas Abthorpe Cooper, a

handsome and talented young Irish actor. No doubt Cooper, too, had been

attracted to Richmond by the gathering of celebrities there and had

concluded that the list would not be complete without the presence of

the leading actor of the day.

Richmond in the summer of 1807 not only attracted the leading actor

of the day; it attracted also an artist recently arrived from France

who was making a name for himself in the cities of the coast through

his ingenious manner of making likenesses. On Friday, July 17, the

_Enquirer_ carried on its front page a paid notice under the heading

“Likenesses Taken and Engraved.” It stated that the subscriber, as an

advertiser was politely known in those days, begged leave to inform

the ladies and gentlemen of the city of Richmond that “he takes and

engraves Likenesses in a style never introduced before in this

country.”

The subscriber respectfully solicited the same favor and patronage he

had met with in the largest cities in the United States. Samples of his

work, said the announcement, could be seen at the subscriber’s lodgings

in Mrs. Harris’s house nearly opposite the Custom House. To stir the

Richmonders to prompt action he closed his public notice by stating

that in order not to disappoint those who might desire to “set for

their likenesses,” he begged leave to suggest that his stay in the city

would be short. The notice was signed, “St. Mémin.”

The subscriber, to give him his full name, was Charles Balthazer Julien

Ferret de Saint-Mémin. Born in Dijon, France, of an aristocratic

family, he fled the French Revolution and arrived in New York in

1793. He proceeded at once to tour the cities of the East. He visited

Philadelphia, Baltimore, and Annapolis successively. Wherever he went

he left behind him a trail of his crayon portraits. They were done in

black and white crayon on pink paper with the aid of a device invented

by the gentleman himself and known as a “physionotrace.” The profile

of the subject was thrown as a shadow on the paper and there traced

with mathematical exactness. Saint-Mémin was an artist as well as a

technician. The portrait executed life size was framed in black and

gold and the whole presented a lifelike and satisfying effect.

But that was not all. In addition to every life-size portrait, the

artist made a small copper plate about two inches in diameter from

which were struck off a dozen engravings. The sitter received the

framed portrait, the engravings, and the plate. Saint-Mémin’s usual

price was $25 for gentlemen and--somewhat ungallantly--$35 for ladies.

Though high according to contemporary values the price was not

exorbitant as portraits go.

Saint-Mémin’s reputation preceded him to Richmond. Shrewd man that

he was, he no doubt counted on the trial to provide a healthy lot of

potential customers. If so, he was not disappointed. He did the Chief

Justice. He did John Wickham, and Mrs. Wickham too. He did William

Wirt, and the Cabells, the Gambles and the Mayos, and others prominent

in Richmond society.

Modern art critics are inclined to turn up their noses at Saint-Mémin’s

work because of its mechanical quality. Yet from the standpoint of

social prestige the money paid out for it could not have been better

spent. No doubt there were many men and women in Richmond who thought

of engaging Saint-Mémin. They may then have reflected that $25 or $35

was a goodly sum. They would have been unusual if they had not had more

pressing demands than portraits--perhaps new parlor furniture, or a

great four poster bed in the heavy empire style just coming into vogue.

Perhaps they reflected that at least part of that sum might be needed

to pay the fees for their children at the dancing class going on at the

Haymarket Gardens. What better and more direct way to obtain social

prestige than by sending children to a dancing class? Or a room may

have needed papering or a leaking roof called for attention.

Whatever the practical, common-sense reason, there were many who failed

to seize the opportunity presented them by Saint-Mémin. They could not

know that a hundred years or so after they had gone to their reward

their portraits, in black and white crayon on pink paper, hanging on a

wall in New York, Philadelphia, Baltimore, Annapolis, or Richmond, and

duly authenticated as an ancestor, entitled its owner to a place in the

most exclusive social circles.

In a country where a coronet is not worn a “Saint-Mémin” comes closest

to being the equivalent symbol of nobility. Anyone who unguardedly

inquires “what is a Saint-Mémin?” could offer no better proof of not

belonging. The moral of the Saint-Mémin episode is that whenever an

offer to be extravagant appears, take it. No telling what social

prestige it may bring one’s descendants.

No, following the indictment of Burr and the others, and the

adjournment of court, and while waiting for it to convene again on

August 3, Richmond was far from dull.

_Chapter_ XII

As the day for his trial approached Burr felt the need for Theodosia.

His daughter was now in Charleston with her husband and little boy. But

Burr was not the kind to yield to sentimentality. His appeal was quite

impersonal; it might have been made to any stranger. It was based on

logical reasons and did not for once intimate that in this crisis of

his life he needed the affection and understanding which only Theodosia

could give him.

“I want,” he wrote toward the close of July, “an independent and

discerning witness to my conduct and to that of government. The scene

which has passed and those about to be transacted will exceed any

reasonable credulity, and hereafter will be deemed fables, unless

attested by very high authority.”

If there was any doubt in his mind as to the outcome he evidently was

determined not to let Theodosia know it. In his letter he breathed

nothing but self-confidence. “I repeat what has heretofore been

written, that I should never invite anyone, much less those so dear

to me, to witness my disgrace. I may be immured in dungeons, chained,

murdered in legal form, but I cannot be humiliated or disgraced. If

absent you will suffer great solicitude. In my presence you will feel

none, whatever may be the malice or the power of my enemies and in both

they abound.”

It was as though Burr had trained his daughter from her birth with

this critical moment in view. And the training had been carried out

with all the puritan vigor that ran in the blood of the Burrs and the

Edwardses. The child was the first born to the Colonel and his wife,

the widow Theodosia Bartow Prevost. The event took place in 1783 while

the Burrs were still living in Albany. The infant was named for her

mother though Theodosia Prevost Burr professed that she wanted to name

it for Aaron’s sister Sally.

Soon after the baby’s arrival the mother wrote to Sally’s husband,

Tapping Reeve, announcing the event: “Providence smiled upon our wishes

and on the 21st of June blest us with a lovely daughter ... and you

will believe me, Reeve, when I tell you the dear little girl has the

eyes of your Sally, and promises to be as handsome. I would also have

given her her name; but Burr insisted on calling her Theo--assure my

sister for me that I submitted with the greatest regret.”

The baby was barely five months old when the family moved to New York

City, and there the child grew up. Soon after, another daughter was

born to the Burrs, but she died in a few years and little is known

about her. Early in little Theo’s life she exhibited a marked devotion

to her father. At the age of four years Mrs. Burr was reporting, “Our

sweet prattler exclaims at every noise, ‘There’s dear papa’ and runs to

meet him.” It was said that her attachment for her father was not of a

common nature and that when he was away she could not hear him spoken

of without an apparent melancholy.

Such accounts sound suspiciously like an effort on Mrs. Burr’s part to

flatter the Colonel into forgiving her for having presented him with

two daughters and no sons. They might be dismissed as such had not

their truth been clearly demonstrated by later events. By this time the

once delicate baby had grown into a plump, gay little girl with rosy

cheeks and a winning smile.

Little Theo’s upbringing became almost immediately the special care of

the Colonel. The way he went about it suggests that subconsciously at

least he was trying to make amends for her not being a boy. Wherever

business might take him and however occupied he might be with his law

practice and politics and other personal matters, his thoughts were

never far away from his daughter and her training.

Burr was years ahead of his time in his acceptance of revolutionary

theories on the education of women. Someone had put in his hands a

book by the pioneer feminist Mary Woolstonecraft entitled _Vindication

of the Rights of Women_. He had been greatly impressed by it. Writing

to his wife he said: “I had heard it spoken of with a coldness little

calculated to excite attention; but as I read with avidity and

prepossession everything written by a lady, I made haste to procure it,

and spent last night, almost the whole of it, in reading it. Be assured

that your sex has in her an able advocate. It is, in my opinion, a work

of genius.”

The burden of Miss Woolstonecraft’s argument was that women are as

capable of receiving an education as are men, if not more so. Burr

embraced the theory; or else he was determined to test it. Forthwith he

proceeded to put it into practice in the education of his own daughter.

To his wife he remarked: “But I yet hope, by her, to convince the

world what neither sex appears to believe, that women have souls.” So

obsessed was he with this idea that he later confided to his wife: “If

I could foresee that Theo would become a mere fashionable woman with

all the attendant frivolity and vacuity of mind, adorned with whatever

grace or allurement, I would earnestly pray God to take her forthwith

hence.” Strange sentiments coming from a man who in his usual contacts

with women was reputed to be attracted chiefly by their physical

attributes.

In his determination to give his daughter the same education he would

have given a son the Colonel spared no expense in employing tutors. At

this period, with a flourishing law practice, he was probably better

off financially than at any time in his life. Two or more hours both in

the afternoon and evening were reserved for the child’s instruction.

And Theo proved an excellent student, thriving under what surely would

have broken down the health of an ordinary child. By the age of ten

years she was reading Horace, Terence, and Lucian and preparing to

begin Homer and Vergil. Exercises in Greek grammar shared a place with

the study of Gibbon. Her curriculum included as well philosophy and

political economy, French and German.

The Colonel’s solicitude did not confine itself to Theo’s mind. It

extended to her deportment, speech, expression, and dress as well. Nor

was her musical education neglected. Under competent instruction she

mastered the two popular instruments of the day--the pianoforte and the

harp. Besides all this, in the hours set aside for recreation she was

taught to ride, skate, and dance. Not even a princess being prepared

to sit some day on a throne could have been subjected to a more

well-rounded program of education than that which Colonel Burr bestowed

on Theodosia.

Colonel Burr’s prosperity was more apparent than real. Possessed

of extravagant tastes and a flair for lavish entertainment, he was

condemned forever to live beyond his means. In addition to his house in

the city he purchased an estate outside which he named Richmond Hill.

It comprised a commodious dwelling house, a stable, a dairy, numerous

other appurtenances, and abundant ground.

Theodosia was barely ten years old when her mother, after an illness

of several months, died of cancer. Since there was no one else for the

Colonel to call on, at that tender age Theodosia assumed the exacting

duties of acting as hostess for her father. This was no insignificant

task as the Colonel delighted in extending the hospitality of his

house to distinguished visitors who were constantly arriving in New

York. Theodosia presided at table with dignity and poise and without

self-consciousness in the presence of such notables as Talleyrand,

Louis Philippe, and Jerome Bonaparte.

It is not surprising that her fame spread throughout the city and

beyond it. An English traveler who had the privilege of being received

at Richmond Hill noted in his diary that this precocious young lady was

“elegant without ostentation, learned without pedantry” and “educated

with uncommon care.” He found her speaking French and Italian with

facility and “perfectly conversant with the writers of the Augustan

Age.”

The Colonel schooled his daughter, too, in fortitude and stoicism, two

qualities which he regarded as being among the higher virtues, and

which he practiced so industriously himself. There was a tradition that

even while she was little more than a child he required her to sleep

alone in a remote part of the house the better to exercise her courage.

Yet in spite of this exacting routine, the prodigy lost none of her

feminine charm. The English visitor at Richmond Hill observed that she

“danced with more grace than any young lady in New York.” Theodosia

is reputed to have had a number of suitors. When she had become

famous many were attributed to her with whom she was barely if at all

acquainted. Washington Irving’s name, for example, was linked with

hers, though there is no convincing evidence that they ever met.

It was to be assumed that so gifted a young woman would be hard to

please and that she was not likely to be won by an ordinary man.

However, Theodosia proved not to be unconquerable. At the age of

seventeen years she was writing to young Joseph Alston in Charleston,

South Carolina: “I shall be happy to see you whenever you choose;

that, I suppose, is equivalent to very soon.... My father laughs at

my impatience to hear from you, and says I am in love.... I had not

intended to marry this twelvemonth ... but to your solicitation I yield

my judgment.”

Joseph Alston was in every way eligible. He was the son of Colonel

William Alston, a South Carolina planter, whose wealth ran to land and

slaves. He had read law and, at the age of 22 years, was the owner of

two estates in South Carolina as well as a mansion on the Hudson River

above New York. He already had displayed talent that promised to carry

him far in his profession and in the public affairs of his state.

The young people, very much in love with each other, were married at

Albany in February, 1801. After a honeymoon spent at Richmond Hill they

journeyed to Washington to be present when the Colonel was inaugurated

as Vice-President of the United States. From there Alston took his

wife to Charleston where her personality earned for her the same

popularity she enjoyed in New York.

Theodosia seems not to have been altogether happy with her in-laws.

A letter is attributed to her in which she remarked: “We travel in

company with the two Alstons. Pray teach me how to write two A’s

without producing something like an ass.” This is one of the few unkind

comments that has been credited to her. It suggests that the Alstons

must indeed have been trying. On the other hand, how could ordinary

elderly folk entertain a young woman who had been accustomed to the

stimulating company of Aaron Burr?

In the spring of the year following their marriage a son was born

to the Alstons. They named him Aaron Burr Alston. The Colonel was

delighted. The boy was not yet two years old when his grandfather began

planning for him the same exacting educational program he had imposed

on his mother. “You do not say whether the boy knows his letters,” he

wrote to Theo. “I am sure he may be taught them. He may read and write

before he is three years old. This, with speaking French, would make

him a tolerably accomplished lad of that age, worthy of his blood.”

Most remarkable of all Theodosia’s qualities was the genius she

displayed in bestowing her affection equally upon her father and her

husband without arousing the jealousy of either of them or bringing on

herself charges of favoritism or neglect. In no case was the Colonel’s

spell cast more magically than over his daughter. In her eyes he could

do no wrong. Let others accuse him of political chicanery, let them

question his integrity, let the public of New Jersey and New York

condemn him as a murderer. Let the Government of the United States

charge him with treason and its President declare that his guilt was

beyond question. In the face of it all Theodosia remained steadfast,

her faith unshaken. Though it must have been a mortification to

her pride to know that he was in prison, she did not blame him but

attributed this base treatment to the machinations of his enemies.

Toward her husband Theodosia’s demonstrations of affection were

eloquent. During their engagement she wrote him with all the girlish

enthusiasm of her seventeen years: “Where you are, there is my country,

and in you are centered all my wishes.” And again, on an occasion when

they were separated from each other: “Every moment I feel that I have

lost so much of your society which can never be regained.”

The birth of little Aaron left the mother weak and subject to physical

disorders that she was never entirely to be free of. For a time she

despaired of her life and in one of her melancholy moods she wrote

Alston: “Death is not welcome. I confess it is ever dreaded. You have

made me too fond of life. Adieu, then, thou kind, thou tender husband.

Adieu! friend of my heart. May Heaven prosper you and may we meet

hereafter.”

In the fateful summer of 1806 when Colonel Burr departed from the

East “never to return,” he was joined in the western country by the

Alstons--Theodosia, Joseph, and little Aaron. The Alstons were for a

time guests of the Blennerhassetts on their island in the Ohio River.

There Theodosia won the undying affection of Margaret Blennerhassett

and the admiration of her husband Harman. Although the Alstons were not

present at the time of the alleged “overt act,” their visit a short

time before served to increase the public’s suspicion of Alston’s

implication in the plot. His name, it will be recalled, was mentioned

in Burr’s letter to Wilkinson of July 29.

The circumstance caused Alston intense embarrassment. He had become

accustomed to the annoyance of receiving requests for loans from his

father-in-law, but that was a small matter compared with the Colonel’s

use of his name in so damaging a document as the cipher letter to

Wilkinson. In his perplexity Alston unburdened himself in a letter to

his friend Charles Pinckney, then Governor of South Carolina.

“I have,” he said, “received and read the President’s message with deep

mortification and concern; but the letter annexed to it, stated to be

a communication in cypher from Col. Burr to Gen. Wilkinson, exacted my

unfeigned astonishment.

“I solemnly avow that, when that letter was written, I had never

heard, directly or indirectly from Col. Burr or any other person, of

the meditated attack on that place, or any other part of the United

States, than I have at this moment to suspect that our militia will

be forthwith ordered on an expedition against Gibraltar. On the other

hand, I had long had strong grounds for believing that Col. Burr

was engaged by other objects, of a very different nature from those

attributed to him, and which I confess the best sentiments of my heart

approved. I need not add that those objects involved not the interests

of my country.

“Without adverting to that integrity of principle, which even my

enemies I trust have allowed me, can it be supposed that a man situated

as I am--descended from a family which has never known dishonor, happy

in the affection and esteem of a large number of relations and friends,

possessed of ample fortune, and standing high in the confidence of his

fellow-citizens--could harbor for an instant, a thought injurious to

the country which was the scene of those blessings?

“Whatever may be thought of the _heart_ of Mr. Burr, his _talents_

are great beyond question, and to reconcile with such talents the

chimerical project of dismembering the union, or wresting from

it any part of its territory is difficult indeed.... He imagined

perhaps--which, by the way, he had no right to do--that his influence

would be sufficiently great to induce my assent and thought, therefore

he might as well consider it already obtained; or which is more

probable, he might have imagined that by the apparent concern of a

number of persons from different States, a stronger impression would be

made on his correspondent.”

Alston’s letter, of course, soon became public property. Could a young

man have found himself in a more embarrassing position? His good name

had been dangerously compromised. Alston rightly felt he should clear

himself of the suspicions which mention of his name in the letter

naturally aroused. But how could he do that without casting reflections

on his father-in-law? And how could he cast reflections on his

father-in-law without showing disloyalty to Theodosia?

The effort was not altogether successful. The first paragraph of the

letter was favorable to the Colonel in that it repudiated any idea that

he was contemplating an attack on New Orleans or on any other part of

the United States. It was as much a defense of the Colonel as it was of

himself. But the closing passages did not express sentiments which were

flattering or with which Colonel Burr could be greatly pleased.

The distinction made between Burr’s “heart” and his “talents” intimated

that while the moral issue involved in a conspiracy against the

Government would not have restrained him, his intelligence would have

told him the idea of dividing the Union was impractical. Then Alston

had gone on to state frankly that Burr had no right to use his name

without his consent and to suggest that it had been only a cheap trick

to impress Wilkinson. It definitely was not the sort of letter to help

preserve peace in the family.

On the other hand, when the Government was stretching forth its mighty

hand to grasp Burr certainly was no time for discord between him and

his son-in-law. It was reported in some quarters that when Burr heard

about the letter there was a scene between the two men. If so, wisdom

and necessity triumphed over ill temper. Whatever their innermost

feelings may have been, Burr and Alston presented to the world a solid

front.

So the Colonel wanted Theodosia at his side. She was not well, but well

or not there could be only one response to his request. The Alstons

soon were on their way from Charleston to Richmond, taking little Aaron

with them. The Colonel had time for one last letter: “I am informed

that some good natured people here have provided you a house, and

furnished it, a few steps from my ‘town house’ [he was referring to

Luther Martin’s]. I had also made a temporary provision for you in my

town house whither I shall remove on Sunday; but I will not, if I can

possibly avoid it, move before your arrival, having a great desire to

receive you in this ‘mansion.’ Pray, therefore, drive directly here.”

It took more than confinement in the penitentiary to dampen Burr’s

naturally ebullient spirits.

The Alstons duly arrived in Richmond and drove directly to the

penitentiary. They spent their first night there, then moved to the

house the “good natured” Richmonders had offered them. From there

Theodosia could supervise the menage of her father and Luther Martin in

Martin’s house nearby. Her sojourn in Richmond witnessed a repetition

of her triumphs elsewhere. The Federalist upper crust found her to

be a welcome addition to their exclusive and accomplished society.

She went about making friends everywhere until observers came to the

conclusion that by her mere presence in Richmond she did more to

further the cause of the defense than all of Burr’s brilliant array of

counsel. Long after the actors in the drama had gone to their various

rewards Theodosia’s stay in Richmond and the impression her exceptional

personality made on the community was established as a part of local

legend. She could scarcely have been treated with greater deference had

she really been the empress with whose attempted creation Aaron Burr

was charged.

_Chapter_ XIII

Dudley Woodbridge, who was his partner, said of Harman Blennerhassett

that he had every sort of sense except common sense. That is the

simplest explanation why this Irish gentleman found himself in the

summer of 1807 in the State Penitentiary in Richmond, facing a charge

of treason against the United States.

Harman Blennerhassett was born quite by chance, in Hampshire, England,

while his parents were there on a visit from Ireland. He was the

youngest son of a family described as distinguished. As a boy he

attended the famous Westminster School in London and from there went

on to Trinity College, Dublin, where he was graduated with honors. He

chose law as his profession and at the age of 25 years was admitted

to the bar. Through the death of his elder brother he unexpectedly

succeeded to the family estates, which were considerable.

Harman’s sister Katherine married Captain Robert Agnew,

Lieutenant-Governor of the Isle of Man. They had a daughter Margaret

who, on reaching her teens, was sent to school in England. While

Harman was on a visit to the Agnews he was entrusted with the pleasant

mission of crossing to the mainland to bring his niece home. Harman

at this time was 31 years old and Margaret 18. In the course of the

trip he became completely infatuated with her and proposed marriage.

No doubt dazzled by this man of the world thirteen years her senior,

Margaret accepted him. When the newly married uncle and niece arrived

on the Isle of Man and Harman introduced Margaret to her parents as

his wife the Agnews were furious. In their anger and humiliation they

disinherited Margaret and repudiated Harman. In fact the Agnews and

their friends made the situation so unpleasant that the Blennerhassetts

concluded their only recourse was to leave home and seek asylum in the

United States.

Blennerhassett sold his estates, which brought him $100,000, a tidy

sum in those days, and he and Margaret sailed for New York where they

arrived in 1796. As though this were not enough to rid them of the

curse that had descended on their romantic adventure, they did not

linger long in the East but set out to look for a permanent home on the

frontier.

Reaching Pittsburgh in the fall of the year, they bought a keelboat

and dropped down the Ohio River. The valley of the Ohio was then a

wilderness save for a few small settlements at favorable spots along

the stream. One of these was Marietta where the Blennerhassetts found a

society of refined and cultivated people who received them cordially.

There they remained throughout the winter while they reconnoitered the

neighborhood for a suitable site for an estate.

At last they found what pleased them on an island in the river two

miles below the present Parkersburg, West Virginia, at the mouth of

the Little Kanawha. This island they purchased. It consisted of 170

acres, which lay in Wood County, Virginia, a significant circumstance

in the light of later developments. There the Blennerhassetts spent

$30,000 erecting a spacious two-story dwelling with wings and numerous

appurtenances. In keeping with the custom of the time, they also

purchased slaves to serve the household and work the land.

In this American wilderness they brought into being an establishment

such as might have been found in England or on the continent of Europe.

The spacious mansion was painted white and the fields surrounding it

were neatly inclosed in white post fences. Attached to the house was

a formal garden with shrubbery and hedges in the English style and

espaliers of peach, apricot, quince, and pear. With stables, barns,

overseers’ houses, and quarters for the slaves the settlement made an

impressive sight indeed.

No less impressive was the interior of the mansion which was richly

furnished from top to bottom. Costly paintings adorned the walls and

handsome imported rugs covered the floors.

Margaret Blennerhassett was above average height, well proportioned and

graceful. Her eyes were blue and her hair dark brown and, in keeping

with the prevailing mode, she wore it in a turban. In England she had

enjoyed the benefits of the best education that was to be had by a

young woman. She spoke French and Italian fluently and was well versed

in Shakespeare’s plays, which she liked to recite. She herself wrote

poetry. In spite of these intellectual qualities she delighted also in

the rugged out-of-doors life the island afforded. She rode horseback

and not infrequently took long walks on the mainland of from ten to

twenty miles in a day. Withal she was a good housekeeper and kept an

excellent table.

Nature had been less kind to Harman. He was a spare man, standing six

feet tall, and his distinguishing feature was a long nose. He was so

near-sighted that he was helpless without his eyeglasses, and it was

jocularly reported that on the rare occasions when he went hunting

he had to take his wife and a servant along to aim the gun! Unlike

his wife he was not partial to outdoor exercise, preferring to spend

his time with books and engaging in scientific experiments. He was

interested in chemistry, electricity, and astronomy. In fact he came

to know too much about electricity and its dangerous properties. A

thunderstorm so played on his nerves that he had to close the doors

and windows and get into bed. In addition to his scholarly talents

Blennerhassett was an accomplished musician, playing both the violin

and the ’cello.

The Blennerhassetts had two sons whom they named Dominic and Harman.

What with their children, their servants, their livestock, their

well-appointed house and grounds, and their deep affection for each

other they seemed at last, after a somewhat inauspicious start, to have

achieved domestic bliss. But, under the surface disturbing forces

were at work. After eight long years, life on the island was growing

monotonous and the proprietor and his family restless. Even more

disturbing, the plantation failed to clear expenses and Blennerhassett

saw his fortune gradually wasting away.

Such was the situation when Aaron Burr, on his first trip to the West

in 1805, passed down the Ohio River from Pittsburgh in his houseboat.

He mentioned in one of his letters to Theodosia at this time that

whenever he came upon a likely looking house along the river he

would dispatch a note to the owner stating that Mr. Burr, the former

Vice-President of the United States, was in the neighborhood and would

like to call. He boasted that not once was such a request refused.

Naturally Blennerhassett Island did not escape his keen eye and he was

duly impressed with its magnificence. He sent his customary note and

his request to call was readily granted.

The master was away but the Colonel was cordially received by Mrs.

Blennerhassett. It must have been a surprise to Burr to discover in

this remote frontier a woman of Margaret Blennerhassett’s breeding

and cultivation, which were of a quality little inferior even to

Theodosia’s. And surely so polished a man as Burr, and one so capable

of making himself fascinating to women, must have been a welcome sight

to Margaret who seldom had an opportunity to entertain such congenial

company. Burr probably did not discern the financial problem that hung

over the Blennerhassetts. On the contrary, the elaborate appurtenances

of the estate may readily have misled him into estimating their

fortune at a figure much greater than it was in fact. At any rate, his

attitude toward the Blennerhassetts indicated that he considered their

acquaintance well worth pursuing.

Burr must at some time on this first trip to the West also have

encountered Harman, for a correspondence sprang up between them in the

course of which Burr suggested several plans by which Blennerhassett

might improve his fortune, and the latter asked Burr’s opinion as to

the advisability of his moving to Louisiana.

The Colonel was not above using flattery to ingratiate himself with

the Irishman. “Your talents and acquirements,” he wrote, “seem to

have destined you for something more than vegetable life, and since

the first hour of our acquaintance I have considered your seclusion

as a fraud on society.” How Blennerhassett’s ears must have burned on

reading that high praise from a man of the Colonel’s standing in the

great world.

During the last days of August in the following year Colonel Burr

landed once more on Blennerhassett Island. This time he was accompanied

by a Col. Julien de Pestre, a French émigré who had served both in the

French and English armies. De Pestre now held the imposing office of

Burr’s chief-of-staff. In attendance also was one Charles Willie, a

young German acting in the capacity of Burr’s secretary. The fourth

member of the party was Dudley Woodbridge, Blennerhassett’s partner,

whom they had picked up at Marietta.

The party was most kindly welcomed by Blennerhassett and spent the

night in his house. Next day the Colonel returned to Marietta where he

contracted with Woodbridge for 100 barrels of pork. He also ordered

from a local boatyard on the Muskingum River fifteen barges of

impressive dimensions. They were to be from forty to fifty feet long

and have a ten-foot beam. One of them was to be specially equipped for

the Blennerhassett family. The whole flotilla, when completed, was

estimated to be adequate for the transportation of 500 men and their

necessary equipment and provisions. These matters attended to, Burr

continued down the river to Cincinnati.

What Burr discussed with Blennerhassett on the night he spent on the

island was not recorded, but a hint is found in four articles which

were published a few days later in the Ohio _Gazette_. Bearing the

signature “Querist” they were the work of Harman Blennerhassett. In

them he set forth arguments as to why it would be to the advantage

of the western states to separate from the Union. He dwelt upon the

fact that the money now paid to the Federal Government in taxes, and

from which the westerners derived little return, could serve a better

purpose if kept in the West and used for local improvements.

In one of the papers Querist was careful to remark: “But I wish it

understood that I have no intention of recommending either the mode or

the time in which it should be effected.” In other words, the articles

were no more than a means of sounding out the western inhabitants

to see what their reaction to the suggestion would be. Not too many

years before secession had been openly discussed in the West and it

had attracted a number of prominent citizens. But now both Kentucky

and Tennessee were glorying in their newly acquired statehood, the

transfer of New Orleans to the United States had removed that barrier

to commerce, and other grievances of the frontier people had been

corrected. In consequence, the desire to separate from the Union had

greatly diminished if it had not entirely disappeared. So much for what

Blennerhassett wrote. If the later testimony of witnesses is to be

believed, he also engaged in some indiscreet talking, as did Burr in

Cincinnati.

From Cincinnati Burr proceeded on horseback to Nashville, Tennessee,

stopping at Lexington, Kentucky, on the way. At Nashville he met

Andrew Jackson, and it was on this visit he engaged with Jackson and

John Coffee for the building of five more boats and the assembling of

supplies.

Meanwhile Theodosia and her son arrived on Blennerhassett Island, and

here, in October, they were joined by Joseph Alston. It was not long

before Margaret Blennerhassett developed an admiration for Theodosia

that bordered on idolatry. It could hardly have been otherwise. Imagine

the many interests these two exceptionally well-educated women found

they had in common. It must have been distressing to both of them when

the visit came to an end. The Alstons said goodby to Margaret and,

accompanied by Harman, set out to join Colonel Burr in Lexington,

Kentucky.

The building of the boats and the collecting of supplies soon was known

to all the community and lent force to the rumors of a conspiracy. John

Graham, Secretary of the Orleans Territory, had now been assigned by

President Jefferson to pick up Burr’s trail and to report back on his

findings. He reached Marietta on his quest in the middle of November.

There he met Blennerhassett who by now had returned home from

Kentucky. As previously mentioned, Blennerhassett, supposing Graham to

be one of Burr’s adherents, talked to him freely. He confided to him

that he thought the West would profit by getting out of the Union. He

said Burr was of the same opinion but added that the reaction to the

articles by Querist indicated that the public was not yet ripe for the

move.

In the Pittsburgh area Burr’s lieutenant, Comfort Tyler, was assembling

supplies and enlisting recruits. Reports were gaining currency that as

many as a thousand young men had responded favorably to the appeal for

volunteers. But when the time came for departure the party consisted of

not more than thirty men distributed among four boats. The immediate

objective of Tyler’s contingent was Blennerhassett Island. There the

flotilla arrived on December 7.

While Graham was in Marietta he learned that a committee of citizens,

stirred by the President’s proclamation, had been organized in Wood

County, Virginia, opposite the island, to oppose any illegal scheme

that might be in the making. On November 21 Graham met with this group

at the courthouse near Parkersburg, and Col. Hugh Phelps, commander of

the Wood County militia, told him he had been urged by Blennerhassett

to join the expedition. According to Phelps, Blennerhassett assured

him that General Andrew Jackson had promised 1,000 men, that 800 were

expected to join the expedition from Kentucky, and from 200 to 300 from

Pittsburgh. Alexander Henderson, another Wood County man who was at the

meeting, said he was not free to give details, but advised that the

United States send a strong military force to New Orleans at once.

It was then that Graham set out in haste to catch Governor Edwin Tiffin

of Ohio, who was at Chillicothe, and lay what evidence he had before

him. With equal dispatch the Governor sent a message to the Ohio

Legislature stating that Blennerhassett had approached two gentlemen of

great respectability and invited them to join in an expedition planned

by Burr to seize New Orleans by force, take possession of $2,000,000

known to be in the bank there, and also the military stores and two

brass cannon belonging to the French.

A new government, the message continued, then would be set up under

the protection of a foreign power. This done, overtures would be made

to the western states to sever their connection with the Union and

attach themselves to the new government in New Orleans. The Governor

added that he had been informed that a force of 1,500 men had been

recruited in Ohio. His recommendation to the Legislature was that it

issue authority for the seizure of the boats that were building on the

Muskingum and the provisions collected at Marietta, and for the arrest

of any of Burr’s agents discovered within the jurisdiction of the Ohio

authorities or attempting to pass down the Ohio River.

So it was that a bill containing these authorizations was prepared and

hastily passed by the Legislature, and Judge Return Jonathan Meigs and

Major General Buell were sent to Marietta with a small body of Ohio

militia to carry out the order. Mrs. Blennerhassett, who was on the

island, learned of the rising tide of public indignation and dispatched

Peter Taylor, her gardener, to Kentucky to find Blennerhassett and Burr

and to warn Burr not to return.

On hearing that the Ohio militia under Judge Meigs and General Buell

were on the way to the boat yard, Dudley Woodbridge set off for the

island to give the alarm. On the way he ran into Blennerhassett,

Comfort Tyler, and some of the young men who were going after the

boats. But they were too late. The boats had been seized by Meigs and

Buell and with them 200 barrels of provisions.

Following this loss, and alarmed by the threatening attitude of the

Wood County militia, Blennerhassett and Tyler concluded that the

expedition would be jeopardized by remaining longer on the island.

They decided, therefore, to slip away during the night on Tyler’s four

boats, leaving Mrs. Blennerhassett and the two boys on the island with

instructions to follow later when arrangements could be made.

The weather was enough to take the heart out of the conspirators. It

had snowed during the day; then the snow was followed by rain and the

ground near the river bank was a sea of mud. Regardless of the need

for secrecy, a fire was lighted where the members of the expedition

might find a little warmth and perhaps a chance to get partially dry.

Throughout these trying preliminaries Margaret Blennerhassett exhibited

surprising energy in helping with preparations for the departure.

It was 1 A.M. on the morning of December 10 when the four boats put

off from the island and began their long journey downstream. The

conspirators numbered about thirty in all. It was a sorry war they were

waging against the United States, if war it could be called. Their

departure was made none too soon. A few hours later Colonel Phelps

arrived at the head of the Wood County militia. These patriots, finding

their quarry gone, made free with Blennerhassett’s wine, got drunk,

insulted Mrs. Blennerhassett, and vented their wrath against the owner

of the house by smashing windows, breaking up pictures and furniture,

and committing other disgraceful acts of vandalism.

The Ohio authorities set a guard on the river at Cincinnati to halt

any expedition as it came down, but the little flotilla passed during

the night and was not detected. Six days after leaving the island it

arrived at Jeffersonville, Indiana, opposite Louisville. There it found

and joined forces with Davis Floyd, another Burr lieutenant, and his

detachment of two boats.

Meanwhile Burr had appeared before the two grand juries in Kentucky

and had been discharged by both of them without being indicted. He had

faced up to Andrew Jackson’s suspicions and convinced that gentleman of

his innocence of any wrongdoing against the United States. In the boats

built for him by Jackson and John Coffee he set out from Nashville down

the Cumberland River to rendezvous with his forces on the Ohio. Burr

had sent word to Blennerhassett by Jackson’s nephew that he would join

him at the mouth of the Cumberland on December 28. He actually arrived

one day ahead--the historic meeting took place on December 27. The

flotilla had now grown to ten boats and a company of not more than 100

men.

The rank and file were in need of inspiration by this time and it

seemed appropriate for the leader to say a few words to them. So

they were marshaled on Cumberland Island for that purpose. But if

they expected to get any information from their leader they were

disappointed. With his customary air of mystery Burr merely announced

that he could not at that time tell them what their destination would

be, and that he must wait for a more appropriate occasion.

From there the flotilla continued on its journey down the Ohio River.

At Fort Massac, the army post above the confluence of the Ohio and the

Mississippi where Burr and Wilkinson had conferred in the summer of

1805, Burr presented himself to the commander, Captain Daniel Bissell,

who greeted him warmly and extended to him all the courtesies of the

post. The party had completed its visit and departed when a messenger

arrived posthaste from General Jackson warning Bissell of the nature

of the expedition and urging him to halt it. Bissell, having seen the

force with his own eyes, sent the messenger back to Jackson with the

report that there was nothing to fear from it. From then on Jackson was

more than ever convinced that the furore raised by the Administration

over the conspiracy was purely political and had no basis in fact.

On January 10 the flotilla reached Bayou Pierre, some thirty miles

north of Natchez, in Mississippi Territory. There Burr landed and went

to pay a call on a friend, Judge Bruin, who lived nearby. And there,

in a newspaper handed him by the Judge, he saw his letter of July 29

to Wilkinson and knew for the first time that he had been deserted

and betrayed by the General. At Judge Bruin’s, too, he learned of the

President’s proclamation and that his arrest had been ordered by the

acting governor of the territory, Cowles Meade.

According to their later testimony some members of the party proposed

resistance to any force that might come to arrest them. But by this

time Colonel Burr perceived that matters had gone far enough. It no

doubt occurred to him also that resistance to the civil authorities

would be most incriminating. Since he was going to base his defense

on innocence of any wrongdoing he must act in accordance with that

assumption.

Therefore, as any innocent man would have done on learning that charges

had been preferred against him and that he was, so to speak, a fugitive

from justice, Burr hastened to vindicate himself by seeking out Acting

Governor Meade and surrendering at discretion. He was taken to the

village of Washington, then the capital of Mississippi Territory, where

a grand jury was summoned and the territory’s attorney general, one

Poindexter, tried to get out an indictment against him. Again, as in

Kentucky, the Colonel’s bravado stood him in good stead. The grand jury

not only refused to indict him but took the territorial officials to

task for having arrested Burr and his men without cause.

But the Colonel knew that the respite was only temporary, since the

Federal authorities were hot on his trail. So, on February 1, after

assuring his followers that he would rejoin them shortly, he assumed a

disguise and fled.

Once more Blennerhassett, Tyler, Floyd, and the rank and file of the

now pathetic little band, were arrested and placed under guard. But

they were treated with humanity and permitted occasionally to walk

about with no restraint more binding than their own honor. As soon as

the excitement died down they were set free.

After her distressing experience on the island Margaret Blennerhassett,

accompanied by the boys, took refuge in Natchez, Mississippi. There

she was joined by her husband. Curious to know the condition of his

property Harman set out in June to visit it. He had reached Lexington,

Kentucky, when on the 25th the news of the proceedings in Richmond

caught up with him and he was arrested. He at once called in Henry Clay

to defend him but, in spite of that able counsel, the court refused to

grant a release.

On July 14. Blennerhassett wrote to his wife that a messenger, after

making a rapid journey from Richmond, had brought him intelligence

of his indictment with Colonel Burr on the charges of treason and

misdemeanor. “I have no idea of attempting an escape,” he assured her.

“I feel conscious of all want of law or evidence to convict me.”

At this point his letter was interrupted by the arrival of a Mr. David

Mead who had come to arrest him on the part of the United States. “He

is an amiable, kind young man, with whom I shall set out in a few days

for Richmond.”

Four days later, from jail, Blennerhassett wrote again asking Mrs.

Blennerhassett to look for the copy of the first letter he had written

to Burr which he thought he might need for his defense. He also

asked her for any letters she could find from Burr to her. Nor was

his present predicament to interfere with his artistic pursuits if

he could help it. He directed Margaret to forward also “the morocco

case, containing my music and the two sheets of manuscript I lent Mrs.

Wallace, with my spectacles.”

At last Blennerhassett’s slow mind was beginning to perceive the

manner in which he had been exploited by Colonel Burr. To his wife

he confided: “I am extremely sorry to find the injury to private

individuals of this country in consequence of a baseless authority for

Burr’s financial operations here last autumn far exceeding my greatest

suspicions. If it be shown that he had not funds and friends pledged to

him to warrant his drafts, his conduct would appear nefarious enough to

displace all the friendships he ever formed.”

Burr was aware of the danger to himself that lay in the possible

defection of Blennerhassett. As early as May 21 he had written him from

Richmond: “I have barely time ... to assure you and Mrs. Blennerhassett

of my devoted attachment and regard, and to express my sympathy for all

the vexations you have encountered.” From then on he was to exert every

effort to keep his alleged co-conspirator in line.

Under the gracious chaperonage of young Mr. David Mead, Blennerhassett

made the journey from Lexington to Richmond, where they arrived on

August 3. Mead took his prisoner to the Washington Tavern, to the west

of the Capitol Square, and there they had an excellent dinner. This

over, another deputy marshal appeared to present Blennerhassett with a

warrant for high treason. He had a carriage waiting outside and in this

Blennerhassett was conveyed to the penitentiary where he was assigned

the sumptuous apartments lately vacated by Colonel Burr. Here he was to

remain throughout the course of Burr’s treason trial. And here he was

to find ample time to set down an account of the proceedings. He too

was to enjoy the same gracious treatment by the best people of Richmond

that had been accorded Colonel Burr.

_Chapter_ XIV

Promptly at noon on Monday, August 3, the Circuit Court of the United

States for the Fifth Circuit and District of Virginia was opened by the

Chief Justice. The midsummer heat had done nothing to discourage the

public from attendance, and, as usual, every seat and vantage place was

at a premium.

On the bench the Chief Justice in his robes of office sat alone. Judge

Griffin is not reported to have been present on this occasion. In the

places reserved for the prosecution were District Attorney Hay, Mr.

Wirt and Mr. MacRae. Ready to act for the defense were Mr. Randolph,

Mr. Wickham, Mr. Martin and Jack Baker. Baker, a jovial fellow, appears

to have been retained because of his popularity: he played a small part

in the trial.

The clerk called the names of more than 100 witnesses. Then followed

another of those legal hitches that by this time had become so

characteristic of the trial. Mr. Hay asked for a postponement since,

he said, he had been unable to furnish Colonel Burr with a list of the

witnesses and their addresses. He reported also that he had found that

the list of the venire he had delivered to the accused was inaccurate.

So the Chief Justice obligingly granted a postponement of two days, but

not before Colonel Burr had attempted to enliven the proceedings by

again asking for a _subpoena duces tecum_.

So there was nothing for the disappointed crowd to do but file out of

the courtroom to swelter through the afternoon in the taverns and in

their homes until the sun had set and darkness had brought some slight

relief. Those who were determined to follow the proceedings by this

time were beginning to realize that they would have to adapt their

habits to the spasmodic stops and starts of the hesitant machinery of

justice.

On Wednesday court assembled only to adjourn almost immediately because

witnesses were absent. On Friday another assembly was followed by

adjournment because counsel for the United States pleaded they were not

prepared to proceed. Thus another whole week passed by with nothing

tangible accomplished toward either dismissing Colonel Burr with a

clean bill of health or consigning him to the gallows.

At last, on Monday, August 10, the proceedings got under way. A touch

of novelty was provided by the first appearance in court of Harman

Blennerhassett. He had made the trip from the penitentiary to the

Capitol in fine style, riding in a carriage drawn by a span of horses

and attended by two guards. The crowd outside the courthouse was

smaller than he had anticipated, but he found the spacious courtroom

well filled. Colonel Burr entered soon afterwards and, on catching

sight of Blennerhassett, immediately came to his side, shook him warmly

by the hand and, with a welcoming smile, told him how glad he was to

see him. It was the first time the alleged conspirators had met since

Burr said goodby to his little army at Cole’s Creek in February and

slipped out into the wilderness. That magic smile and handshake were

enough to banish for the moment the resentment Blennerhassett felt over

his treatment.

Now commenced the arduous task of picking twelve good men and true from

among the prospective jurymen who had answered to their names. In view

of the fact that virtually every bit of the most important evidence

against the accused, including all the fantastic rumors, had appeared

in the press and was common knowledge to the reading public, it was

no simple task to find men of intelligence who had not already formed

their opinions.

No sooner had Mr. Buckey, the first venireman called up, been

questioned than the difficulty became apparent. Asked if he had formed

an opinion prior to receiving his subpoena Mr. Buckey replied that he

had. Mr. Hay ventured that if the question were put to this man and

every other man on the panel no jury could ever be selected in the

State of Virginia. If the Court were to adopt that doctrine, he said,

why then it would be the equivalent of acquitting the prisoner for want

of a jury to try him.

Young Botts bristled at this remark of the District Attorney. He asked

for the floor to deplore that in this country and in this case there

had been such a general expression of public sentiment. However, until

the gentlemen for the prosecution had avowed it Mr. Botts professed he

had never doubted that twelve men might be found in Virginia capable of

deciding the question with the strictest impartiality.

Judge Marshall here intervened between counsel to point out that asking

a man whether he had formed an impression about Colonel Burr was too

general. The impression might be so slight that it did not amount to an

opinion of guilt, nor go to the extent of believing he deserved capital

punishment.

Mr. Botts addressed the venireman. “Have you said that Colonel Burr was

guilty of treason?” he asked. “No,” was the reply. “I only declared

that the man who had acted as Colonel Burr was said to have done,

deserved to be hung.” “Did you,” pursued Mr. Botts, “believe that

Colonel Burr was that man?” “I did from what I had heard,” admitted Mr.

Buckey. The gentleman was rejected.

So it went with venireman after venireman. A typical instance was that

of Mr. Jervis Storrs. He was, he said, in the habit of reading the

newspapers and could not but examine their statements relative to these

transactions. If he could believe General Eaton’s assertion that the

prisoner had threatened to turn Congress out of doors and assassinate

the President, he had said and would still say that Colonel Burr

was guilty of treason. If the letter to General Wilkinson was true,

Colonel Burr had surely been guilty of something in the West that was

hostile to the interests of the United States. On the whole Mr. Storrs

expressed a wish not to serve on the jury.

Among the veniremen questioned was Peyton Randolph. He asked to be

excused on the ground that he was a lawyer, practicing at the Richmond

bar, and as such immune to jury duty. It did not seem to occur to him

that he had ample reason for not serving in view of the fact that he

was a son of Edmund Randolph, leading counsel for the defense. These

Virginia relationships were so hopelessly intertwined that Mr. Hay,

on questioning the possibility of getting twelve men in the state who

had not made up their minds, might have added a doubt that it would

be possible to organize a court, comprising judge, jury, and counsel,

where family relationships would not endanger strict impartiality.

This circumstance was abundantly illustrated when out of the list of

veniremen Colonel Edward Carrington was called to the stand. He was

the Chief Justice’s brother-in-law and a devoted friend. But this

connection had not stood in the way of his being subpoenaed for jury

duty.

On being questioned as to his fitness to serve Colonel Carrington

expressed his feelings with complete candor. He had, he admitted,

formed an unfavorable opinion of the views of Colonel Burr, but it was

not definitive. Some people said that Colonel Burr’s object was to

invade the Spanish territories; others that it was to dismember the

Union. As for himself, said Colonel Carrington, his own opinion had not

become fixed.

But there was another subject connected with the trial, on which he

had stated an opinion. That was on General Wilkinson’s actions in

New Orleans. On the basis of what Wilkinson had been told of Burr’s

activities Colonel Carrington thought the General had behaved in a

proper manner and had said so publicly.

Burr himself addressed the venireman. “Have you, Colonel, any prejudice

of a more settled kind and ancient date against me?”

“None at all,” Colonel Carrington assured him.

“He is elected,” declared Burr.

So it was that, with the Chief Justice, the prisoner, and counsel for

both sides agreeing, the brother-in-law of the Chief Justice became

one of the first four out of that first venire of nearly forty to be

elected and sworn.

Thus were concluded the proceedings on August 10. Seven days had passed

since the convening of the court and the jury still needed eight

members to complete it.

Blennerhassett, who had been a silent witness to these events, returned

to his quarters in the penitentiary. The day in court and the intense

heat oppressed him. He dined with less appetite than the day before,

and tried to get cool by pacing his commodious cell and fanning

himself. But it did no good. He soon found himself so weak he had to

lie on the floor, and there he slept he knew not how long. At length

he awakened on hearing mention of the name of Mrs. Alston. A servant

had come from Theodosia bearing a gift of oranges, lemons, and limes.

This was not the first time she had showed the same attention. In fact

Blennerhassett had not been in prison half an hour before her first

gift arrived--tea, sugar, and cakes. Alston had come, too, to offer

reassurances on the score of the money Blennerhassett had sunk in the

adventure. He had not been too successful in this, since Blennerhassett

had formed a dislike for him. In fact it seemed as though

Blennerhassett, disarmed by Burr’s ingratiating manner, vented his

spleen on the unoffending Alston. Alston had brought with him Edmund

Randolph who volunteered his professional services in Blennerhassett’s

defense.

There were other compensations for being behind bars. The prisoner was

permitted to hire a servant at $13 a month to wait on him. He was given

every liberty inside the prison, except that he could not pass from

under its roof by day or out of his room by night. He did, therefore,

have to suffer the indignity of being locked in from 8 o’clock in the

evening until sunrise.

On the other hand, no objection was made to his stocking up with

groceries and liquors. His dinner was provided by a tavern across the

road from the penitentiary. He also enjoyed the services of a fellow

prisoner who was a skillful barber.

“This Vaun,” he recorded in his diary, “is only here for 18 years,

merely for cutting his wife’s throat with precisely the same sort of

instrument with which he operates most delicately on mine every other

day.”

There came also a message from a lady unknown to him who did not wish

to have her name mentioned, begging him to accept soups and jellies.

Later Blennerhassett learned her identity. No wonder the lady felt a

delicacy about having her name mentioned as a benefactor of Burr’s

alleged accomplice. She was Eliza Carrington, adoring sister-in-law of

the Chief Justice and wife of the juryman who was to have an important

part in trying Colonel Burr. Washington Irving was no doubt right when

he praised Richmond’s women for their compassion, their boldness, and

their independence. Could he have said as much for their discretion?

Tuesday, August 11, was another sweltering day. The Court concerned

itself with completing the jury. The proceedings were uneventful save

for one brief moment when a venireman named Hamilton Morrison was

challenged by the defense.

“I am surprised why they should be in so much terror of me,” he

observed. “Perhaps my name may be the terror, for my first name is

Hamilton.”

Colonel Burr was not amused. He stated that the remark was in itself

sufficient cause for disqualifying the venireman and the facetious Mr.

Morrison was excused.

By now the venire had been exhausted and yet eight seats on the jury

still remained empty. Mr. Hay therefore moved that the Court award a

new venire, and the Chief Justice granted a panel of forty-eight and

ordered an adjournment until Thursday, the 13th, in order to allow

time for bringing it together. But when Thursday came Burr objected

that the list of the panel he had received contained no addresses. In

consequence the adjournment was continued until Saturday. Even then the

prospect was discouraging; it was beginning to look as though Mr. Hay

was right when he expressed a fear that Colonel Burr would not be tried

for want of a jury.

However, it was Colonel Burr who offered a solution to the problem. He

proposed that he be permitted to select eight men out of the new panel.

The prosecution, despairing of getting a jury any other way, agreed.

And so at last the jury box was filled, twelve days after court had

been convened for the trial.

Unlike the Grand Jury, the Petit Jury could not boast a particularly

distinguished list of members. Colonel Carrington stood out prominently

among them; so much so in fact, that the Chief Justice waved aside

whatever scruples he may have had and placed his brother-in-law in the

key position in the trial by appointing him foreman.

Though the other eleven jurymen were not destined for immortality they

all bore substantial names that meant something in Virginia. They were

David Lambert, Richard E. Parker, Hugh Mercer, Christopher Anthony,

James Sheppard, Reuben Blakey, Benjamin Graves, Miles Bott, Henry E.

Coleman, John M. Sheppard, and Richard Curd.

By the time the jury had been organized it was Saturday again and

it hardly seemed worth while to start the trial. So Judge Marshall

adjourned the Court for the weekend. Even the heavens seemed relieved

that at last progress had been made. A violent thunderstorm on Tuesday

night broke the heat wave and made life more bearable.

During the weekend Blennerhassett was the object of what he described

as “another advance from female humanity.” Mrs. Jean Auguste Marie

Chevallié, wife of the French Consul and Judge Peter Lyon’s daughter,

sent him a message asking if he would accept refreshments of

delicacies she might provide. The ladies were outdoing themselves to

see which one could qualify as benefactor-in-chief. Mrs. Chevallié’s

genteel inquiry offset in some degree the annoyance the prisoner was

experiencing at the hands of idle visitors to the penitentiary desirous

of gratifying their curiosity by surveying his countenance and his

quarters. More disturbing than that was a letter from his financial

agent in Philadelphia informing him that, because of the attachment

served on Blennerhassett’s funds, he had been obliged to dishonor all

the bills drawn and presented for acceptance since January 20 last.

Blennerhassett interpreted the statement as marking the disappearance

of the last pecuniary resources of his poor family.

Now at last, after weeks of delay, the stage was finally set. When

Court convened on Monday, the completed jury was seated. This day saw

the arrival of reinforcements for the defense in the person of Charles

Lee. His presence appears to have been designed primarily to lend

distinction to Burr’s cause by including the magic name of Lee among

his defenders. Charles Lee, a brother of “Light Horse Harry,” had been

Attorney General of the United States in Washington’s cabinet. He, too,

was a descendant of William Randolph of Turkey Island and his wife Mary

Isham. So far as the record of the trial shows, his participation was

not in proportion to his eminence as a lawyer.

When the bailiff had called the Court to order the prisoner was

directed to stand while the clerk read the indictment. It was the same

to which he had pleaded “Not guilty” when the Grand Jury returned a

true bill on June 24.

It proclaimed that the Grand Inquest of the United States of America,

in and for the Fifth Circuit and the Virginia District, did present

that Aaron Burr, late of the city of New York, and the State of New

York, attorney at law, residing within the United States and owing

allegiance and fidelity to the same, “not having the fear of God before

his eyes, nor weighing the duty of his said allegiance, but being moved

and seduced by the instigation of the devil,” on the 10th of December,

1806, at a certain place called by the name of Blennerhassett Island,

“with force and arms, unlawfully, maliciously and traitorously did

compass, imagine and intend to raise and levy war, insurrection and

rebellion against the said United States.”

The indictment, in its noble Tudor phraseology, went on to point out

that in order to achieve his purpose Burr, “with a great multitude

of persons whose names at present are unknown to the Grand Inquest

aforesaid, to a great number, to wit, _to the number of thirty persons

and upwards_, armed and arrayed in a warlike manner, that is to

say with guns, swords and dirks, and other warlike weapons as well

offensive and defensive, being then and there unlawfully, maliciously

and traitorously assembled and gathered together,” did “falsely, and

traitorously and in a warlike and hostile manner array and dispose

themselves against the United States.”

The indictment added that this force on the same day had left the

island “with the wicked and traitorous intention of descending the

river and taking possession of the city of New Orleans.”

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

persons and upwards....”

Not since the three famous tailors entitled their manifesto “We, the

People of England” had so little been made to sound like so much. Thus

the indictment set for the prosecution the exacting task of proving

that thirty persons, mostly youths, assembling on an island in the Ohio

River for little more than twenty-four hours, constituted levying war

against the majesty and might of the United States of America.

To render the charge even more difficult of proof the prosecution

admitted at the outset that the alleged arch-traitor, Aaron Burr, was

not even present in person at the warlike assemblage!

But was his presence necessary to prove his guilt? In the habeas corpus

proceedings in the case of Erich Bollman and Samuel Swartwout the

Chief Justice had delivered an opinion indicating that it was not. The

prosecution lost no opportunity of reminding him of it. It was on this

opinion that it had largely counted on a conviction.

So, in his opening remarks to the jury, Mr. Hay once more quoted from

the Chief Justice’s opinion: “... if war be levied, that is, if a body

of men be actually assembled for the purpose of effecting by force a

treasonable purpose, all those who perform any part, however minute,

_or however remote from the scene of action_, are to be considered as

traitors.”

Mr. Hay went farther afield. He delved into the English authorities to

demonstrate that in Great Britain, under the statute of 25 Edward III,

on which the American theory of treason was based, the crime of treason

might be committed not only in the physical absence of the principal

but also without the bearing of arms.

When Mr. Hay had completed his opening statement, Colonel Burr appealed

to the Court to expedite the business by meeting as early as possible

and adjourning late. He cited the English custom of sitting from twelve

to sixteen hours a day. Learned counsel shuddered at the very thought.

Objection was instantly raised on the ground that English courts did

not have to contend with the heat of Richmond in midsummer. Tempering

justice with mercy, Judge Marshall ruled that the Court would meet at

nine o’clock in the morning and sit until four o’clock in the afternoon.

These preliminaries having been attended to, the call came for the

first witness for the prosecution and General Eaton was sworn. No

sooner had he taken the stand than the defense was on its feet

protesting the propriety of hearing Eaton’s evidence. They contended

that it had to do only with intention. Therefore before it could be

admitted an overt act had to be proved. The controverted point led to a

long and animated debate which consumed the rest of the afternoon.

As was to be his custom throughout the trial, Judge Marshall adjourned

Court before presenting his opinion. With his genius for application he

would work far into the night preparing his opinion in order to have

it ready when Court convened in the morning. Where he was concerned

there was to be no undue haste, no chance for misconstruction. The

opinion would be in writing and reflect the logical approach that was

characteristic of his legal papers. It was on his acute reasoning

rather than profound knowledge of the authorities that the force of his

opinions depended.

In the morning, true to his promise, the Chief Justice was ready to

deliver his opinion. It was a dissertation on what testimony was and

was not relevant to this time. As applied to General Eaton’s testimony

it permitted that part which related to Burr’s design to seize New

Orleans and divide by force the western from the Atlantic states. It

excluded the more colorful passages which had to do with Burr’s alleged

plans for the overthrow of the Government in Washington.

With this injunction Eaton was told to go ahead and tell his story in

his own way. The hint, however, was made to him that he might well

leave out autobiographical material having to do with his services to

the nation in Tripoli, which he considered a basis for the nation’s

gratitude. Eaton, however, did not take the hint, but reviewed his

exploits at considerable length before launching into the now familiar

story of Burr’s advances to him in the prospect of interesting him

in the expedition. It had appeared in print so many times that the

majority of those present knew the essential details.

When General Eaton at last finished his testimony, cross-examination

by the defense was brief and to the point. He was asked if he had not

long had a claim against the Government for repayment of the expenses

allegedly incurred by him on his Tripoli expedition. He replied that

such was the case. And was not the claim for $10,000? Eaton replied

that it was. And had it been paid? Yes. When had it been paid? In March

last!

What the defense brought out in those few short questions was that,

after years of refusal, the Congress that was in the hands of the

friends of President Jefferson at last had honored General Eaton’s

claim. And it had done so just when General Eaton’s testimony gave

every indication of being essential to the conviction of Aaron Burr.

That was all the defense wanted. It let General Eaton go. Less

than a fortnight before Eaton’s appearance in court as a witness

Blennerhassett wrote in his diary: “The once redoubted Eaton has

dwindled down in the eyes of this sarcastic town into a ridiculous

mountebank, strutting about the streets under a tremendous hat, with

a Turkish sash over colored clothes when he is not tippling in the

taverns.” That perhaps was a fair expression of the attitude at least

of the better people of the town toward this spurious general.

What a contrast to Eaton the next witness presented! In the prevailing

atmosphere of suspicion and distrust of actions and motives and

testimony, Thomas Truxtun stood forth as the embodiment of truth

and honor. Yet no man of his time had less reason to be loyal to

the Administration in Washington or more cause to resent the shabby

treatment he had received from its hands. His personal circumstances

were just the sort that Burr so often undertook to make capital of in

the pursuit of his own questionable designs.

Truxtun had had a distinguished career in the United States Navy,

advancing to the rank of commodore. In the quasi-war with France he

had commanded the U.S. Frigate _Constellation_ in its two victorious

battles with the French frigates _L’Insurgente_ and _La Vengeance_.

His professional skill was so well recognized that in 1802 he was

chosen to command a squadron which had been fitted out for the war with

Tripoli. As the squadron was about to put to sea Truxtun requested that

a captain be appointed to command his flagship. It was a reasonable

request in keeping with naval custom. But President Jefferson at that

time entertained little enthusiasm for the Navy, which he regarded as a

symbol of imperialism clashing with his democratic principles. So the

Administration refused the request.

Commodore Truxtun, feeling that he had been indifferently treated,

wrote an indignant letter of protest to Washington. It may have been

too strongly worded and impolitic, yet Truxtun’s fine record was

deserving of some consideration. But the authorities were annoyed and

interpreted the letter as an offer of resignation, which it was not.

Acting on this assumption the Administration accepted a resignation

which had not been offered, and in so doing lost a capable officer

while it opened itself up to a charge of base ingratitude toward a

deserving public servant.

Under the circumstances there was nothing for the Commodore to do but

retire to his farm in New Jersey, his outstanding professional career

having been brought to an abrupt end, and to brood over the injustice

that he had every reason to believe had been done him. He was on his

farm in the summer of 1803 when Burr, having fought his duel with

Hamilton, found it expedient to get away from New York. He and Truxtun

were friends and Burr, on his way south, spent a night under Truxtun’s

roof.

None of these past circumstances concerned Thomas Truxtun as he raised

his right hand and solemnly swore to tell “the truth, the whole truth,

and nothing but the truth.”

During the winter of 1805–06, the Commodore began, he saw much of

his friend Burr, who in their conversations frequently mentioned a

speculation in western lands. He spoke also of opening a canal or

building a bridge on the Ohio River. But Truxtun made it clear that he

was not interested.

The topic of conversation then turned to the Government. According to

Truxtun, Burr urged him to get the Navy out of his head, declaring it

would dwindle to nothing. Finally, some time in July of 1806, Truxtun

recalled, Burr told him he wished to see him unwedded from the Navy of

the United States and to think no more of “those men at Washington.”

Burr, according to the Commodore, said he wanted to “see” or “make”

him an admiral. Truxtun was not sure of the expression used. Burr then

disclosed that he contemplated an expedition to Mexico in the event of

a war between the United States and Spain. He asked if Truxtun would

take command of a naval force in this undertaking. Truxtun said he

inquired whether the Chief Executive of the United States was a party

to or concerned in the project. When Burr answered emphatically that he

was not, Truxtun replied that in that case he would have nothing to do

with it.

Burr, according to Truxtun, confided to him that, in the event of a

war with Spain, he proposed to establish an independent government

in Mexico, that General Wilkinson of the Army and many officers of

the Navy would join him. Truxtun remarked that he did not see how an

officer of the United States could join. To this Burr replied that

Wilkinson had first projected the expedition and that he, Burr, had

matured it. He added that many greater than Wilkinson would take part,

and thousands to the westward.

Truxtun testified further that Burr told him that, if there were no

war with Spain, he intended to invite friends to settle on a piece

of land on the Washita River for which he was about to complete a

contract. Burr estimated that within a year he would have 1,000

families of respectable and fashionable people there.

Such in substance was Commodore Truxtun’s testimony. It was worth all

the rest, for it was so patently honest that nobody questioned it.

When he had finished Burr inquired of him: “Did you ever hear me

express any intention or sentiment respecting a division of the Union?”

“We were very intimate,” Truxtun answered. “There seemed to be no

reserve on your part. I never heard you speak of a division of the

Union.”

Burr could not have asked for better testimony from one of his own

witnesses. It must have erased from the minds of the jury whatever

unfavorable conclusions had been reached as a result of Eaton’s

insistence that division of the Union was Burr’s aim. On the other hand

the more astute among them may have made allowances for Burr’s habit

of saying to each individual just so much as he felt that individual

should know.

When Commodore Truxtun had stepped down from the witness stand the

prosecution called Peter Taylor, the Blennerhassetts’ English gardener.

He was a simple country man of limited education, in striking contrast

to the distinguished naval officer who preceded him. In introducing him

Mr. Hay explained that the witness would directly prove the connection

between Burr and Blennerhassett. It appears, too, that the prosecution

counted on Taylor as one of the two witnesses to the overt act which

the Constitution required to prove guilt of treason.

Taylor’s testimony began with the events on the island immediately

after receipt of the President’s proclamation informing the public

of the existence of a plot and cautioning all loyal citizens to

have nothing to do with it. Mr. Blennerhassett and Mr. Alston, said

Taylor, had gone down the river to join Colonel Burr. On reading the

proclamation the people in the vicinity of the island had become

alarmed and Mrs. Blennerhassett sent Taylor in search of her husband

and Burr to warn Burr not to return to the island because of the public

outcry against him.

According to Taylor’s story, after going to Chillicothe and Cincinnati,

he caught up with Burr in Lexington, Kentucky. Burr inquired news

of the island to which Taylor replied that he had been sent by Mrs.

Blennerhassett to warn him not to return. Taylor quoted himself as

saying: “If you come up our way the people will shoot you.” He also

testified that he had told the Colonel the people were saying the land

settlement was all a fib and that Burr had something else in view.

After further wandering in Kentucky, Taylor testified that he at

last came up with Blennerhassett and that they set out together on a

return journey to the island. He pictured Blennerhassett as shrouding

himself in mystery and, when people at the inns along the way inquired

Blennerhassett’s name, Taylor was instructed to tell them it was “Tom

Jones.” Blennerhassett also directed Taylor to call him that.

Taylor said Blennerhassett began to inquire for young men who owned

rifles, explaining that he and Burr had bought land and wanted young

men to settle on it. To this Taylor replied that he would like to go

along if he could take his wife and family with him. But, according

to his testimony, Blennerhassett replied that he would have to have

further consultation with Burr on that point.

Then, according to the witness, Blennerhassett paused and after a

moment’s hesitation said: “I will tell you what, Peter, we are going to

take Mexico, one of the finest and richest places in the whole world.”

Taylor went on to say that Blennerhassett told him Burr would be king

of Mexico, and Mrs. Alston, Burr’s daughter, was to be queen when Burr

died.

Taylor said he inquired of Blennerhassett what would happen to the

young men when they found out that the expedition was against Mexico,

after they had signed up to settle the lands. He quoted the latter

as replying: “Oh, by God, I tell you, Peter, every man that will not

conform to order and discipline I will stab; you’ll see how I’ll fix

them.”

The witness said he then remarked to Blennerhassett that people were

spreading the rumor that he wanted to divide the Union. According to

Taylor, Blennerhassett explained that he and Burr could not do that

themselves. All they could do was to tell the people the consequences

of it. Blennerhassett, said Taylor, pointed out that the people in the

western states now paid $400,000 a year to the Government in taxes

and received no benefit from it. What a fine thing it would be if

they could keep the money among themselves on the western side of the

mountains, make locks, build bridges, and cut roads.

The District Attorney now took over the witness. He wanted to know if

Taylor was not on the island at the time of the assembly. On being

answered in the affirmative he asked if the men had guns. Taylor

replied that some of them had and that they went hunting. He could not

give the exact number that were armed. Further questioning brought out

that Taylor did not know whether the weapons were rifles or muskets.

He said the only pistols he saw were Blennerhassett’s. He added that

the men had powder and lead and that some of them were running bullets.

He admitted that at no time had he seen Burr on the island and that he

understood he was not in that part of the country at the time.

With the conclusion of Peter Taylor’s testimony Court adjourned for

the day. There was no doubt that much of this testimony was damaging.

Some of Taylor’s statements of what Blennerhassett said corresponded

with the testimony of other witnesses. For example, Blennerhassett’s

alleged remarks about Burr and himself being unable to divide the Union

but only to point out the advantages of such a division, corresponded

exactly with what John Graham, the Government’s investigator, said

Blennerhassett told him. But could Taylor’s word be trusted on the

matter of the Mexican empire with Burr at its head and Theodosia as his

successor? The more melodramatic the evidence the greater the suspicion

that the witness had been coached before taking the stand, or that such

wild statements were mere figments of his imagination.

When the Court reconvened on the morning of Wednesday, August 19,

the first witness to take the stand was General John Morgan, a sturdy

frontiersman who lived with his father, Colonel George Morgan, and his

brother Tom on an estate appropriately named Morganza, a few miles from

Pittsburgh.

General Morgan, having been sworn, testified that some time in August

of 1806, his father received a letter signed by Aaron Burr stating that

he and Colonel de Pestre would like to dine with them the following

day. His father, said General Morgan, asked his two sons to meet

Colonel Burr on the road and this they did about seven miles distant

from Morganza.

After a few words of general conversation, continued the witness,

Colonel Burr observed that the Union could not possibly last and that

a separation of the states must ensue as a natural consequence in four

or five years. General Morgan went on to say that, at his father’s

table during dinner, Colonel Burr again observed that the separation of

the Union must inevitably take place in less than five years. To this

General Morgan said his father exclaimed “God forbid!” General Morgan

testified further that Burr observed that with 200 men he could drive

the President and Congress into the Potomac, and that with 400 or 500

he could take possession of the city of New York.

After dinner, said the General, Burr walked with the two brothers for

about a mile. In the course of this airing he asked if either of them

had a military turn, surely a surprising question to ask a man bearing

the title of General! Morgan’s testimony ended with an account of a

farewell ride with Burr to the town of Washington, about ten miles

distant, during which Burr made further inquiries about the local

militia.

On cross-examination by Colonel Burr, General Morgan admitted that the

letter from Burr to Morgan’s father followed one from the elder Morgan

to Burr inviting him to Morganza, so that the meeting between Burr and

the Morgans had not after all been initiated by Burr.

General Morgan was followed on the witness stand by his father who

confirmed in substance the evidence presented by his son. He explained

further that he had enjoyed a long acquaintance with Burr and had

received many civilities from him. In fact, said Colonel Morgan, when

Burr was being persecuted after his duel with Hamilton he had invited

Burr to stay with him at Morganza.

Colonel Morgan considered Burr’s conversation at dinner so

reprehensible that he informed his neighbors, General Neville and

Judges Tilghman and Roberts. It was they, he said, who wrote a joint

letter of warning to President Jefferson.

General Morgan was recalled to the stand by Burr just long enough to

be asked what state of mind his father was in when General Neville and

Judge Tilghman visited him. General Morgan replied that his father had

recently had a fall which had done him considerable injury. Colonel

Burr wanted to know if General Morgan had not made an apology to Judge

Tilghman for the state of his father’s mind. But the only admission

Burr could wring from the witness was that he had said his father was

old and infirm and, like other old men, told long stories and was apt

to forget his repetitions.

Thomas Morgan, the General’s younger brother, on taking the stand

quoted Colonel Burr as having said that under the existing government

there was no encouragement for talents; that John Randolph of Roanoke

had declared on the floor of the Congress that men of talents were

dangerous to the Government. He said Burr next asked him whether he,

who at the time was studying law, would be interested in a military

enterprise. And, said Tom, when he replied that it depended entirely on

the object, Burr explained: “I wish you were on your way with me.”

The testimony now returned to the Blennerhassett household. The next

witness was Jacob Allbright, a stolid Dutchman who, like Peter Taylor,

had been in the employ of the Blennerhassetts. He testified that he had

been invited to go on the expedition and that he also had been offered

a dollar a head for any volunteers he could get from the Dutch colony

in New Lancaster, Ohio, from which he came.

But Allbright’s most important testimony had to do with the appearance

on the scene of the assemblage of Brig. Gen. Edward Tupper, of the

Ohio militia, for on it depended proof of the use of force which might

be construed as levying war. According to Allbright, General Tupper

laid his hand on Blennerhassett and at the same time declared: “Your

body is in my hands, in the name of the Commonwealth.” Then, continued

the witness, seven or eight muskets were leveled at him at which Tupper

protested, “Gentlemen, I hope you will not do the like.”

To this, said Allbright, one of the men who was about two yards away

replied, “I’d as lieve as not.” This threat, Allbright testified,

changed Tupper’s attitude and he wished Blennerhassett good luck.

Allbright’s testimony was as close to showing an act of violence as

that of any of the witnesses.

Recognizing the seriousness of the charge Burr questioned the witness

at length in an effort to show that Allbright’s testimony had been

different on an earlier occasion and, as he expressed it, “to degrade

the witness by invalidating his credibility.”

Mrs. Blennerhassett, in Natchez, expressed herself as being shocked

when she learned of the testimony of their former servants. In a letter

to her husband she set forth in strong words her opinion of Peter

Taylor and his responsibility for her husband’s indictment. “Gracious

God!” she exclaimed, “confined in a prison in the dog days, and by the

perjury of a wretch not many degrees from a brute!”

Next came the testimony of one Peter Love, still another of

Blennerhassett’s retainers, a man who had volunteered for the

expedition. He placed the number of persons assembled on the island

at between twenty and twenty-five. He mentioned men with rifles, two

braces of pistols, and a dirk belonging to Blennerhassett. But he

weakened the charge of armed force by testifying that General Tupper

and Blennerhassett had parted “in the greatest friendship,” or so he

understood from others. Nor was he of much help to the prosecution

when, in reply to a question, he said it was his understanding the

expedition’s purpose was the settlement of the Washita lands.

On being asked by Mr. Parker, a juror, if he had seen any bullets

run, Love replied that he had, but he could not say how many. “I was

a servant in the house,” explained Love, “but could not mind my own

business and other people’s too.”

Next to be heard was Dudley Woodbridge, Blennerhassett’s business

partner and a man of parts. They operated together under the firm name

of Dudley Woodbridge & Company. He testified that in September, 1806,

Blennerhassett had called on him with Colonel Burr at the company’s

counting house in Marietta. There, said Woodbridge, Blennerhassett told

him Burr wished to buy a quantity of provisions.

The Colonel, said Woodbridge, then inquired the price of provisions and

the cost of boats best calculated to carry the provisions up and down

the river. Burr left with him a memorandum of the provisions wanted and

also put in an order for the boats to be built. The latter were to be

of the Schenectady model such as were used on the Mohawk River.

The witness described Burr ordering provisions which included pork,

flour, whiskey, bacon, and kiln-dried meal, but the only thing actually

purchased was the pork. The boats, said Woodbridge, were built on the

Muskingum River about seven miles above Marietta. Only eleven of the

fifteen ordered were completed. He then went on to tell about their

seizure by the Ohio militia following publication of the President’s

proclamation. He also told of being on the island the night of December

10, but added nothing new to what other witnesses had testified as to

the happenings there.

Then, under the direction of Mr. Hay and with the consent of the Court,

Woodbridge proceeded to recount the circumstances leading up to the

assembly on the island. Late in August or early in September, he said,

Blennerhassett mentioned to him that he had embarked on an enterprise

with Colonel Burr; that General Eaton and others were engaged in it and

that the prospects were flattering. From Blennerhassett’s statements

Woodbridge inferred that the object was Mexico, though he admitted that

that was not positively stated.

Blennerhassett, said Woodbridge, asked him if he had a disposition

to join but he replied that he preferred his present situation to the

uncertainties of such an expedition.

“You know Mr. Blennerhassett well,” remarked Colonel Burr in commencing

the cross-examination. “Was it not ridiculous for him to be engaged in

a military enterprise? How far can he distinguish a man from a horse?

Ten steps?”

“He is very nearsighted,” agreed Woodbridge, “and cannot know you

from any of us at the distance you are now from one another. He knows

nothing of military affairs. I never understood that he was a military

man.”

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

“He is,” replied Woodbridge, “and a man of literature.” Then he

delivered his estimate of his partner’s limitations: “But it was

mentioned among the people in the country that he had every kind of

sense but common sense; at least he had a reputation of having more of

other than of common sense.”

To the question: “What were his favorite pursuits?” Woodbridge

mentioned “chemistry and music.”

Here Court adjourned for the day. When it convened on the following

morning three more eye-witnesses of the events on Blennerhassett Island

were heard. Simeon Poole, who was not on the island itself but on

the mainland opposite it, saw what looked to him like sentinels and

heard what sounded like a watchword. Maurice P. Belknap was on the

island and saw men cleaning rifles. He contradicted Poole’s testimony

by stating that though he was a stranger he had been admitted to the

island without being challenged and having to give a watchword. Edmund

P. Dane, too, was permitted on the island to wander at will about the

Blennerhassett mansion. Though he was a total stranger he said nobody

appeared to be greatly alarmed.

The sum total of the evidence suggested that if this were levying war

against the United States it was a very tepid manifestation of it.

Meanwhile Colonel Burr and his counsel were chafing over the direction

the testimony was taking. At last they could restrain themselves no

longer. The evidence that was being heard they protested was collateral

evidence. They insisted that the prosecution be made without further

delay to produce all the testimony they had relating to overt acts.

Counsel for the prosecution on the other hand maintained that it was

unusual, irregular, and improper thus to restrict the testimony. The

whole evidence, they contended, should be submitted to the jury whose

province it was to decide whether there had been war or not.

Judge Marshall interposed to say there was no doubt the Court must

hear the objections to the admissibility of evidence. Mr. Wickham

urged the gentlemen of the prosecution to introduce if they could any

more testimony they might have pertaining to what they deemed to be

the overt acts. Mr. Hay objected to this course of procedure. But, he

agreed, if the gentlemen of the defense were determined to make their

motion they might proceed.

That motion, proffered by Mr. Wickham, was that until an overt act had

been proved all other evidence was collateral, and therefore irrelevant

and inadmissible.

Since apparently the Government’s witnesses to the alleged overt

acts on Blennerhassett Island on the night of December 10, 1806, had

been exhausted, if the motion of the defense were sustained no more

witnesses could be heard. The practical effect of this would be that,

of some 140 witnesses assembled by the Government, only the handful

who had already appeared on the witness stand would be permitted to

give their testimony. If the Chief Justice were to rule in favor of the

motion of the defense it was tantamount to his taking from the jury the

privilege of deciding what testimony was relevant and arrogating it to

himself.

Therefore if the motion were sustained and, subsequently, Colonel

Burr acquitted, it took no exceptional prescience to foresee that the

enemies of Judge Marshall could charge that Burr’s acquittal resulted

from the fact that the Chief Justice had suppressed the Government’s

evidence. In refusing to commit Burr for treason the Chief Justice had

then declared that the Government had not produced sufficient evidence.

So the Government had gone out into the highways and byways and come up

with more than a hundred witnesses, which in all conscience should have

been enough to convict Aaron Burr of anything. And now, if the Chief

Justice granted the defense’s motion, he would put himself on record as

refusing to admit the testimony of the witnesses that the Government

had so zealously gathered together in Richmond.

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

_Chapter_ XV

It is not every day that a lawyer has a Vice-President of the United

States as his client. And subsequent history has shown that it is

exceptional indeed for a lawyer to have the privilege and honor of

exercising his talents to save a Vice-President of the United States

from the gallows. As John Wickham rose to defend his motion, with his

shrewd sense of values, he could not have failed to be aware that this

was the greatest moment in his career.

Obviously counsel for the defense were not surprised when the Chief

Justice granted Mr. Wickham the right to make the motion. As learned in

the law as the gentleman was known to be, he could not have made the

finished argument he did without long and careful preparation.

He approached his task with an air of confidence derived from his

acknowledged leadership at the Virginia bar and the many victories to

his credit, a number of them over the plodding Hay. This confidence was

fostered by his realization of the great difficulty of sustaining any

charge of treason under the Constitution of the United States and of

the weakness of the evidence in this particular case. Suave, refined,

and elegant, he was the envy of his less distinguished legal brethren.

The weather had turned hot again but neither Mr. Wickham nor his

colleagues were to let themselves be discouraged by so trifling a

matter, or to shorten their arguments so much as a sentence in order to

save themselves exertion.

In introducing his case, Mr. Wickham proceeded at once to scotch the

suggestion put forward by the prosecution that the motion to disqualify

witnesses had been presented because the defense wished to suppress

evidence. On the contrary, said his lawyer, the prisoner was more than

willing that everything should be disclosed. But, the speaker pointed

out, there was a practical difficulty resulting from the great number

of witnesses the Government had summoned. If, he said, all of the 140

were examined, not only weeks but months would elapse, and throughout

it all his client would be under confinement just as though he had been

found guilty and was serving a sentence.

Having dealt with that matter to his satisfaction Mr. Wickham

next directed his attention to the most obvious weakness in the

prosecution’s case. That was its admission that when the alleged overt

act had taken place on Blennerhassett Island Colonel Burr was many

miles away.

To refresh the minds of the jury, he quoted from Article III, Section 3

of the Constitution which deals with treason against the United States

and lays down that it “shall consist only in levying war against them,

or in adhering to their enemies, giving them aid and comfort” and adds

the safeguard that “No person shall be convicted of treason unless on

the testimony of two witnesses to the same overt act, or on confession

in open court.”

To Mr. Wickham’s way of thinking the language of the Constitution

made it abundantly clear that no person in the United States could be

convicted of treason in levying war who was not personally present at

the commission of the act.

And what was the prosecution doing? It was resorting to artificial

rules of construction so that the words of the United States

Constitution would be made to take an artificial meaning based on the

statute law and common law of England. Mr. Wickham denied emphatically

that the statute and common law of England could properly be applied

to the Constitution of the United States. Mr. Wickham would go even

farther than that. He would assert that no rule which holds a person

guilty of treason who is absent from the scene of the overt act had

ever practically obtained even in England.

Oh yes, Mr. Wickham, master of precedent that he was, knew that

there were instances in English history which might be cited by the

prosecution. But he had a remedy for that. He would mention them

himself before the prosecution had a chance to do so. So he frankly

admitted that Lord Coke, eminent English jurist and legal authority,

and other writers after him, had laid down that there are no

accessories in treason either before or after the fact, but that all

are principals.

However, said Mr. Wickham, in spite of the principle declared by the

authorities, no actual adjudications bear them out except that in the

case of Sir Nicholas Throgmorton in the reign of Bloody Mary.

Mr. Wickham was well aware that there was not a lawyer of any standing

at the Virginia bar who was not conversant with the account of the

Throgmorton case as presented by Judge St. George Tucker in his

appendix to _4th Blackstone’s Commentaries_. Throgmorton had been

charged with imagining the Queen’s death. At his trial the doctrine of

constructive treason was insisted on by the prosecution and sanctioned

by the judges. When Throgmorton requested that the law books be

consulted the court told him none might be brought in, that they knew

the law sufficiently without a book. And when the jury brought in a

verdict of not guilty contrary to the wishes of the judges, the court

committed them all to prison and fined them heavily.

But, said Mr. Wickham, the court on that occasion was so contrary, not

only to the rules of law and justice, but even to those of decency,

that he persuaded himself counsel on the other side would not rely on

it as authority.

Mr. Wickham, intimating that he had made a diligent and exhaustive

search of all the authorities, declared that he could find no case in

English law where a person who was not present at the scene of the

overt act had been convicted or even brought to trial, except that of

Mary Speke, in the fourth year of the reign of King James II, at the

time of Monmouth’s Rebellion. But that, Mr. Wickham made clear, was

when the spirit of persecution was high. He thought it probable that it

was one of the cases decided by the execrable Judge Jefferies at the

Bloody Assizes.

Mr. Wickham agreed that in England there was a treason for compassing

the death of the King where the mere agreement to do the act itself

constitutes the crime. He thanked God that in this country there was

no subject to whom such a law applied and that the United States

Constitution strictly forbade that intention alone--which was so liable

to be misunderstood and misrepresented--should in any case be construed

into treason.

He cited also the cases of Mrs. Elizabeth Gaunt, an Anabaptist who was

burned alive, and Lady Lisle, widow of a regicide, as persons convicted

as accessories merely for receiving traitors. But in both instances,

he emphasized, sentence had been passed by the wicked Judge Jefferies.

After Mr. Wickham had thus associated these possible precedents with

such outrageous circumstances the prosecution would be daring indeed to

use them.

Having warmed to his task, Mr. Wickham proceeded to give his audience

an impressive demonstration of his legal erudition. He referred to

Foster’s _Crown Law_ and from that skipped to Hume’s _History of

England_. He quoted passages from Tremaine’s _Pleas of the Crown_ and

boldly plowed his way through Hale, Stanford, Brooke, and Hawkins. He

alluded to the conduct of the Duke of Cumberland after the Battle of

Culloden, and made mention of Flora Macdonald who had helped with the

escape of the Pretender. Surely, asserted Mr. Wickham, she would have

been charged with treason if the doctrine that persons absent and not

in arms had prevailed in England!

From citing the authorities in English, Mr. Wickham turned to Latin

declaring that “_Dixit quod in hoc quod factume est proditio, non

potest esse accessarius felonice et proditire non potest esse

accessarius_.” Not content with Latin he lapsed into some strange

tongue that must have confused Mr. Robertson, the reporter, in spite

of his knowledge of five languages. But Mr. Robertson did his best

and set it down thus: “_Nota P. Hussey C.I. que accessory ne poet este

a treason; le recetment de traitor, ne poet este tantum felony, mes

est treason_.” Mr. Wickham’s was a brilliant display of erudition.

Perhaps the passage quoted was as familiar to his fellow lawyers as the

golden bird of prey on the sign in front of the “Eagle Tavern.” One

wonders what the jury made of the gentleman’s scholarship and in which

direction they were swayed.

Again Mr. Wickham repeated the strict definition of treason as set down

in the Constitution--the levying of war against the United States,

the overt act and the two witnesses. Its object, he said, was clear.

It was to perpetuate the liberties of the people of this country. The

framers of the instrument well knew the dreadful punishments inflicted

and the grievous oppressions produced by constructive treason in

other countries. That is why their language was plain, simple, and

perspicuous.

Mr. Wickham demanded of opposing counsel what security would be

afforded by the Constitution to the best or meanest man in the country

if the construction on which they insisted was correct. If it was

correct then all that was wanted to fix the guilt of treason on an

individual was to have an insurrection existing somewhere in the United

States, no matter where.

Now, he said, suppose the Government should wish to destroy any

man. They find him in Georgia, and the insurrection happens in New

Hampshire. This would suffice for the purpose. But if their cause was

to go on the prosecution would have to contend that even less would

suffice to create treason, that even an insurrection was not necessary,

but that a peaceable assemblage going down the Ohio River would be

sufficient for their purpose.

Continuing to expound his hypothetical case Mr. Wickham suggested

that under the prosecution’s construction a man might be seized and

hurried by force from New Hampshire to Georgia, or to any part of the

United States which his accusers might choose as best for the purpose.

Obviously he had reversed the journey of his client from Alabama to

Virginia. It would be in vain for him to prove that he was not present

when the offense of which he was accused was committed, that he never

at any period of his life had been there, that the actors and the scene

were alike unknown to him. Wretches who from interest or revenge were

ready to further the views of his oppressors, would present themselves

and he might be convicted of levying open war against the Government

with people whom he never saw and at a place where he never was!

The hour was now growing late and Mr. Wickham had talked the better

part of the day. His argument might have proved tedious to his audience

composed entirely of men. Surely a little ribald humor was in order

after all the heavy reasoning he had forced them to endure. So, casting

aside his dignity, Mr. Wickham gave it to them.

He noted that by an act of Parliament in the reign of Henry VIII, it

was made treason for any woman the king should marry, thinking her to

be a true maid, or virgin, to marry him if she were not so.

Now, ventured the speaker, the paramour of such a woman (Mr. Wickham

supposed her to be a maid of honor and he a lord of the bedchamber)

might aid her in imposing on the king. She is tried, found guilty, and

executed. How would her lover be charged? Would he be indicted by the

name A. B., Gentleman, or by his title of Lord, for marrying the king,

not being an unspotted virgin or, to use the language of the act, “a

pure and clean maid”?

“This,” concluded Mr. Wickham, “may seem to be treating the subject

with more levity than I could wish to do, but the argument directly

applies ... for it is as much a physical impossibility that Colonel

Burr should be at Blennerhassett’s Island and in Kentucky (places

several hundred miles distant) at the same time, as that an individual

should be at the same time a man and a woman.”