Shortly thereafter the court adjourned for the day. No doubt those

who had been present retired to their taverns for a spot of brandy

and laughed over Mr. Wickham’s merry argument about the maid of honor

and the lord of the bedchamber who was made to marry the king in the

indictment. No doubt there were some instances where the quick-witted

had to repeat the argument and help the slow-witted to see the point of

the joke.

Of Richmond’s public establishments for food, refreshment, and shelter

for the night none--including even The Eagle--surpassed the Swan

Tavern. Standing on Broad Street that separated the Capitol Square

and its public buildings from the stylish residential quarter of

Shockoe Hill, identified by a sign bearing a white swan on a pale

blue background, it was largely favored by the judges of the Court of

Appeals and legislators of high rank. Its proprietor, Col. John Moss,

was a man of great natural dignity enhanced by starched linen. The

Colonel had the reputation for setting an excellent table over which he

presided in person. His ham was always prime, his fresh meats the best

the market could afford. If any criticism was heard it was only that

Colonel Moss was “a nice calculator who aimed to give his guests just

enough but no more.” But if his food was the best he ought not to be

condemned for seeing that none of it was wasted.

Also reflecting the Swan’s high standards were its wine cellar and

its bar. The former was stocked, as the popular expression of the day

defined quality, with “the best London Particular.” The bar was a

favorite place of assemblage for the lawyers after a hard day in court.

It was presided over by one Lovell, a droll fellow whose wit was as dry

as his wines and spirits.

It was perhaps not entirely accidental that the house which Colonel

Burr was sharing with Luther Martin was situated close to the Swan

and its bar. There, when he was not otherwise engaged, Mr. Martin was

likely to be found.

On retiring to the Martin house between sessions the Colonel often

found Theodosia and little Aaron there. Theo was exercising a careful

supervision over the housekeeping and the house was becoming a popular

meeting place for Burr sympathizers. Many noticed and remarked that,

in spite of his years, old Martin was beginning to exhibit a romantic

attachment for Theodosia.

To Blennerhassett, under lock and key at the penitentiary and alone,

Burr wrote apologetically: “I am surrounded by visitors, which

prevents me from adding more than the assurance of my respect and

attachment.”

One emissary between the two accused reported to Blennerhassett that

“Burr lives in great style and sees much company within his gratings,

where it is as difficult to get an audience as if he were really an

emperor.” Another described Burr as being “as cheerful as ever. But as

a jockey might restore his fame in the course, after he had injured it

on a tight rope, so perhaps the little ‘Emperor’ at Cole’s Creek, may

be forgotten in the attorney at Richmond.”

Blennerhassett’s use of the word “Emperor” as applied to Burr is

peculiarly reminiscent of the language Peter Taylor attributed to him

on their journey back to the island from Kentucky in the fall of 1806.

The heat was oppressing Blennerhassett again. “I find it very

agreeable,” he wrote in his diary, “to get upon a chair by which I am

enabled to raise my mouth to the lower tier of openings in the gratings

of the windows and breathe another air for half an hour.”

When Court convened next day Mr. Wickham took up the question of what

constituted an overt act of levying war, which must be proved before

the guilt of treason can attach to the principal.

Here the Chief Justice interrupted to inquire if any adjudged case

could be produced where the court was called upon to decide, and did

decide, that the evidence submitted to the jury did or did not amount

to proof of overt act. Mr. Hay broke in to say that he never knew

the attempt to be made but once. That was before Judge Patterson,

of the Supreme Court, and it had been unsuccessful. Mr. Wickham,

notwithstanding, insisted that, “It is the right and duty of the court

to instruct the jury what amounts in law to an overt act of levying

war.” That was an important point and more was to be heard of it. Mr.

Wickham concluded his argument with a satiric peroration of which Mr.

Hay was the butt: “But what did the gentleman say in defining the

‘levying of war’? That there is no necessity for arms, nor for the

employment of force! That there is no necessity even for potential

force to effect the intended purpose by terror! That there is no

necessity for the act to be public! That an overt act of treason may be

committed without arms, without force, either actual or potential. If

this were the law there would be no safety!”

In the time allotted to him Mr. Wickham had fairly well covered the

English precedents touching on the case and exhibited other evidences

of his profound legal knowledge. Had the poet Tom Moore been present

he would have had even more tangible reason than enjoying the gracious

hospitality of the gentleman’s house for saying that Mr. Wickham could

hold his own in any court.

At this point Mr. Hay surprised the Court and the defense by announcing

that he had two more witnesses to the alleged overt act whom he had

somehow overlooked. One was Israel Miller who had come down from

Pittsburgh with Comfort Tyler’s party. The other was Purley Howe, an

Ohioan, who had made forty boat poles for Blennerhassett and, on the

fateful evening of December 10, had come to the Ohio bank of the river

to deliver them. The two witnesses added little to the testimony that

already had been given. Miller made an estimate of men and arms and

Howe testified to having seen two sentinels armed with rifles on the

flatboat that came to the Ohio bank to pick up the boat poles.

The burden of the defense was now assumed by the ponderous Edmund

Randolph. As befitted an elder statesman he announced that his duty as

counsel to Mr. Burr was fortified by something more important, namely

his duty as a citizen to combat and, if possible, refute the pernicious

doctrine of constructive treason. He quoted Montesquieu to the effect

that, “If the doctrine of treason be undeterminate in any country,

however free its form of government, it is sufficient to make it

degenerate into tyranny.”

In his zeal to protect his fellow man the gentleman was so bold as to

lecture the Chief Justice. He adverted to Judge Marshall’s embarrassing

statement in the case of Bollman and Swartwout that to be guilty of

treason a person need not be present at the scene of the alleged overt

act. Mr. Randolph said he could not bring himself to believe that the

Supreme Court meant to uphold constructive treason. He contended that

even if the language of Judge Marshall in his capacity as Chief Justice

had been explicit and imperious, nevertheless the same Judge Marshall

as the presiding officer in the subordinate court ought not to conform

to it.

Realizing that this was rather a large order Mr. Randolph hastened to

add, “I do not, I dare not, ask you to rebel nor prescribe what you

should do. But let us pray Heaven to stay the arm of the destroying

angel!”

Having thus adjured the Chief Justice, Mr. Randolph cited the opinions

of the American justices--Patterson, Iredell, and Chase--claiming that

they showed that an assemblage without force could not be regarded as

treason. He agreed with his fellow counsel, Mr. Wickham, that such a

contention was repugnant as well to the English doctrine. “Foster,

Hale, Hawkins, Coke, Kelynge, Reeves and all other writers,” he

asserted, “you will find concur in proving that not a single indictment

for treason in levying war has ever been carried into complete effect

in England without actual force.” Mr. Hay interrupted to explain that

he had only meant to say that the provisions of the Constitution ought

to be construed according to the principle of common sense.

Mr. Randolph pricked up his ears at the words “common sense.” With the

ferocity of a tiger attacking its helpless prey he sprang upon the poor

District Attorney.

“Common sense,” he sneered. “Common sense, it seems, creates an

accessory and introduces him as a principal, contrary to the

Constitution. Common sense does not say, like the Constitution,

that treason consists in levying war, but brings in a new person to

participate in the guilt and punishment of treason. This common sense

extends, instead of restraining, the rigor of capital punishment. This

common sense is oppression and tyranny. I pray Heaven to save us from

the deductions of such common sense as this!”

Mr. Randolph next complained of the vagueness of the indictment. The

accused, he charged, must shape his defense to what does not appear.

The laws of this country called on him to defend himself, but they had

not apprised him against what. He must, lamented Mr. Randolph, sit

down and conjecture what the charge was. And where, he asked, was the

accused to obtain the information? Was he to write to the President, or

to the Federal Judge, or to the public prosecutor?

In his little essay on “Common Sense” Mr. Randolph mentioned its having

created an accessory and introduced him as a principal. He now returned

to that theme, contending that before anybody else could be tried,

the principal in the case had first to be convicted. If, he argued,

the previous conviction of the principal was not necessary, then the

Government could bide its time until the death of the principal so that

the accessory might thus be deprived of the main chance of disproving

his offense and thereby be unjustly oppressed. This seemingly profound

reasoning was the defense’s subtle means of insinuating that if there

had actually been an overt act the principal in it was not Burr, who

was many miles away, but Harman Blennerhassett who was actually present

at the scene.

The arguments of Mr. Wickham and Mr. Randolph completed for the time

being the presentation of the defense’s side of the case. It now came

the turn of the prosecution. But Mr. Hay pleaded for time. He called

Judge Marshall’s attention to the fact that it was then Friday and

expressed the hope that further discussion of the motion made by the

defense could be postponed until Monday. That, he said, would give the

prosecution time to reflect on the matter.

Mr. Wickham, Mr. Martin and Mr. Botts at once joined forces in

protesting so long a postponement. But Mr. Hay and Mr. Wirt held

out stoutly for a delay. An argument, they said, which had occupied

two whole days in the delivery before the Court must have required

considerable labor and reflection to arrange and digest. It was, they

contended, unreasonable therefore to suppose that such an elaborate

argument could be fully comprehended and an answer prepared in a single

day.

Mr. Wirt observed that five or six gentlemen of great professional

experience were united in the defense. He suggested that the motion

might be regarded as a mere _ruse de guerre_ which they have sprung on

counsel for the United States as from an ambuscade. More vital still,

he reminded that if the motion were to succeed there would be an end of

the case.

Judge Marshall, impressed by the arguments of counsel for the

prosecution, removed any possible charge of favoritism to the defense

on such an important issue by granting Mr. Hay’s request. Argument was

forthwith postponed until the following Monday.

Nevertheless the Court did meet briefly on Saturday. It was for the

purpose of arraigning Mr. Blennerhassett, who up until now had been

present at the sessions in a somewhat anomalous capacity. So he was

asked to stand while the indictment for treason was read to him. Here

Mr. Botts interrupted the proceedings to call attention to the fact

that there was a misnomer in the indictment and he had not had a chance

to consult with his associates on the subject. He asked that the

arraignment therefore be postponed. The request was granted by the ever

obliging Chief Justice.

The two attorneys for the defense had made it emphatic in their

arguments that the fundamental issue was whether treason as strictly

defined in the Constitution was to prevail, or whether the broader and

vaguer principle of constructive treason was to be admitted. If the

definition of treason as laid down in the Constitution were followed to

the letter the chances were good that Aaron Burr would go free.

But had not the President of the United States openly declared him

guilty? Did not half the people in the United States believe him so,

condemning him on the sensational evidence that had been spread by the

public press? Was the evidence of General Eaton and Commodore Truxtun

and of the lesser witnesses to be dismissed? Mr. Hay had alluded to

common sense. Mr. Randolph had sneered. But the prosecution had not yet

been heard.

_Chapter_ XVI

On the day following the postponement of his arraignment Harman

Blennerhassett received an important visitor in his quarters in the

penitentiary. He was William Duane, formerly a partner of Benjamin

Franklin and Edward Bache in the publication of the _Aurora_. Duane was

now the fiery editor of that newspaper which he had made into an organ

of the Jeffersonian administration.

Duane expressed great sympathy for Blennerhassett. He told him

his friends were making a scapegoat of him. Then, according to

Blennerhassett, Duane tried to lure him into a confession of having

written certain papers then in the hands of the prosecution. But the

chief purpose of his visit was to try to persuade Blennerhassett to

betray Burr.

This Blennerhassett steadfastly refused to do. And that was strange

since he was himself convinced that, as Duane charged, he had been made

a scapegoat. Less than a week after Duane’s visit he posted in his

diary: “You were right, therefore, honest Hay, on observing the other

day to Woodbridge while expressing your concern for my situation ‘that

I must now think Burr has duped me,’ but you were wrong in supposing I

am indebted to you for that discovery; I am possessed of it these nine

months.”

Burr, who had his informants everywhere, was immediately apprised of

Duane’s visit and lost no time getting word to Blennerhassett to be on

his guard against spies who came to him under the mask of friendship.

This precaution was unnecessary. Whatever Blennerhassett may have

confided in his diary he was always completely disarmed when he came

into the presence of Burr, and even when they were apart he seemed

still to feel Burr’s influence.

Blennerhassett’s determination not to turn state’s evidence against

the man who had duped him after pretending to be his friend has been

attributed to the mildness of his temper or lack of courage. Perhaps

each was a factor. However, Blennerhassett was not a bright man. His

romance with his niece is evidence of an impetuosity that led him to

act without counting the cost. From the time of their first meeting

Burr had courted him assiduously, protesting that his vegetating on

the island was a fraud on society and holding out brilliant prospects.

Blennerhassett would have been easy prey for an even less skillful

flatterer. What chance did he have with a man who had duped some of the

best minds in the country and once through oratory alone had provoked

the Senate of the United States to adoration and tears?

When Court convened on Monday morning MacRae opened for the prosecution

and proceeded to live up to his reputation for wielding a meat axe. He

was not the least restrained by the consciousness that his remarks were

being made in the presence of, and only a few feet away from, Aaron

Burr.

The prisoner, he charged, had with unexampled dexterity contrived from

the very beginning to quit his situation as the accused. Instead of

Aaron Burr defending himself he was found taking the high ground of

public accuser and assailing others.

Mr. MacRae charged that Wilkinson, whom he called “the savior of his

country,” and who had prevented the execution of this detestable

plot, had incurred the hatred and resentment of the prisoner and his

associates in proportion as he deserved well of his fellow citizens.

Let others question General Wilkinson’s integrity. Mr. MacRae would not

do so, at least not in open court. In MacRae’s language Wilkinson was

“the patriotic and meritorious officer (like those who opposed and

overthrew Cataline, the Roman conspirator) who defeated this daring

scheme against American liberty.” He would not be forgiven by the

conspirators.

“If he [Burr] be innocent and pure as the child unborn,” sneered Mr.

MacRae, “if he knew nothing of the transaction, why is it that this

motion is made to exclude the evidence?”

What though the prisoner was not on Blennerhassett Island when the

overt act was committed? The speaker contended that nevertheless he was

guilty if anybody was guilty.

“Is there,” he asked, “any human being who having heard the evidence of

General Eaton ... the evidence of the Messrs. Morgan and the evidence

of the witnesses who speak of the overt act on the island, especially

Jacob Allbright and Peter Taylor, who can doubt his guilt?”

Mr. MacRae professed he could not see why it should be necessary for

Colonel Burr to be on the island if he enlisted the men, and sent them

to the place, and acted himself in another place. Nor would he bring

up the cases of Lady Lisle and Elizabeth Gaunt who had been mentioned

by Mr. Wickham. Why should he? These women were accessories after the

fact. But Mr. Burr had never been regarded as an accessory. He was the

first mover of the plot; he planned it; he matured it; he contrived the

doing of the overt acts which others did. Burr, charged MacRae, was the

alpha and omega of this treasonable scheme, the very body and soul, the

very life of this treason!

So, observed Mr. MacRae, Mr. Wickham had said the prosecution must

prove that the accused was personally present. “No, Sir,” he objected,

“it is necessary to prove that some act laid has been committed....

If the law pronounce that he is liable for the acts of his agents,

and if the fact be that his agents by his commands and at his request

committed the act, where is the necessity of producing proof that he

was on the spot himself?”

Counsel for defense had complained of construction. “Our construction

we think correct,” said Mr. MacRae, “because it is calculated to secure

the rights of the citizen and to render the government permanent;

whereas if the construction of the gentlemen on the other side be

correct, the government cannot be permanent. Let them have the power of

ubiquity. The conspirators will always contrive to avail themselves of

this plea that they were not present.”

Mr. MacRae turned to the Old Testament to support his argument. He

used the story of David and Uriah to illustrate it, confident that it

was well known to all the members of the jury in an age when everybody

read the Bible. David, he recalled, placed Uriah in the front of the

battle in opposition to a very powerful opponent in order that he might

be slain and that David might afterwards take his wife. If people

were asked who killed Uriah, David or the antagonist by whose sword

Uriah fell, the answer of all would be that--having placed him in the

front of the battle in a place of the greatest danger, in immediate

opposition to a man of great strength and power, with the intention

that he should be killed--David killed him.

The speaker now applied the principle to the case before the court: “We

suppose the prisoner, by himself and agents, to have been acting at or

about the same time at Beaver, Kentucky, and Blennerhassett’s Island.

We suppose that the prisoner enlisted men before he came to Beaver and

at it. We suppose that afterwards his men proceeded by his orders to

Blennerhassett’s Island and were there increasing their numbers by more

enlistments and providing the means of transporting his troops down

the river towards the scene of his expedition, while he was himself

enlisting more men in Kentucky and making arrangements preparatory to

his meeting and assuming the command of the whole at the mouth of the

Cumberland; and that in fact, pursuant to this plan of operations, he

did meet and take the command of all the conspirators at the latter

place.”

Were there precedents in the law to sustain this argument? Mr. MacRae

cited the case mentioned in Hale’s _Pleas of the Crown_ of the Lord

Dacre and divers others who came to steal deer in the park of one

Pelham. Rayden, one of the company, killed the keeper of the park, the

Lord Dacre and the rest of the company being in other parts of the

park. Yet it was held that it was murder in them all and they died for

it. And, said Mr. MacRae, there was American authority, too. He cited

Dallas’s _Reports_ and the case of the United States against Mitchell

in the Whiskey Rebellion in which Judge Patterson’s charge to the jury

showed that a man did not have to be present at the overt act.

Mr. MacRae then took his fling at the Chief Justice’s opinion in the

Bollman and Swartwout case. So the defense considered that it was not a

regular, solemn opinion? That it was not delivered on a point depending

before the judges, but extrajudicial and therefore not authority? Why,

declared Mr. MacRae, the language was so explicit and pointed that it

could not possibly be misunderstood!

“I consider it as completely proved by the opinion,” he continued, “...

that if an unlawful assemblage of men meet together for a treasonable

purpose, it is not necessary that arms should be in the hands of those

who are concerned, in order to make them traitors. I have imagined

that their meeting together in this manner (in military array) would

be sufficient to show that their purpose was treasonable.” The speaker

considered also that the reason of East on the subject was conclusive

where, among other things, he held that “any assembly of persons met

for a treasonable purpose, armed and arrayed in a warlike manner, is

_bellum levatum_, though not _percussum_!”

On that note MacRae ended his argument. “_Bellum levatum_, though

not _percussum_”--that theme with variations was to get exhaustive

treatment from the next speaker. But the court had heard enough for one

day.

When, on the morning of the 25th, the bailiff called for order, the

dashing 34-year-old William Wirt entered the lists as champion for

the prosecution. Critics of the Administration complained bitterly of

President Jefferson using the public money to employ private counsel

when there were official prosecutors on the payroll for the purpose of

performing that particular task. But the President felt he could not

leave so great a responsibility to the plodding Hay, especially after

the defense had assembled such a dazzling array of counsel. On this

hot August morning the time had come for Wirt to prove to the public

that the fee he would receive from the Government was well earned.

Wirt was faced with a dilemma. At this phase of his career his chief

asset was a natural flow of words that was surpassed only by that

of James Wilkinson. While eloquence might be counted on to sway a

jury its effect on the Chief Justice was highly problematical. Judge

Marshall’s style was logical and free from embellishments. He also had

a keen sense of the ridiculous. Thus, as Wirt warmed to his task and

instinctively soared to rhetorical heights, he found himself being

rudely brought down to earth out of anxiety over what mischievous

thoughts lay behind the solemn countenance of the Chief Justice.

The speaker commenced his dissertation by undertaking to clear himself

of personal malice toward the accused. The humanity and justice of the

nation, he observed, would revolt at the idea of a prosecution pushed

on against a life which stood protected by the laws.

“I would not,” he declared, “plant a thorn, to rankle for life in my

heart by opening my lips in support of a prosecution which I felt and

believed to be unjust.”

Mr. Wirt noted that the gentlemen of the defense appeared to feel a

very extraordinary and unreasonable degree of sensibility on this

occasion. They seemed to forget the nature of the charge and that

he and his colleagues were the prosecutors. But the lawyers of the

prosecution did not stand there to pronounce a panegyric on the

prisoner. They were there to urge on him the crime of treason against

his country!

The lawyers of the prosecution, Mr. Wirt warned, were not going to

mince matters. When they spoke of treason they must call it treason.

When they spoke of a traitor they must call him a traitor. When they

spoke of a plot to dismember the Union, to undermine the liberties of

a great portion of the people of this country and subject them to a

usurper and a despot, they were obliged to use the terms that conveyed

those ideas.

Why, then, were the gentlemen of the defense so sensitive? Why on those

occasions so necessary, so unavoidable, did they shrink back with so

much agony of nerve, as if instead of being in a hall of justice they

were in a drawing room with Colonel Burr and were barbarously violating

towards him every principle of decorum and humanity?

The speaker then proceeded to deal facetiously with Wickham’s

erudition. The latter, he reminded, had invited them to consider the

subject abstractly. But would there not be danger in that? While they

were mooting points, pursuing ingenious hypotheses, chasing elementary

principles over the wide extended plains and Alpine heights of

abstracted law, was there not danger that they would lose sight of the

great question before the Court?

The motion before the Court, Mr. Wirt agreed, was a bold and original

stroke in the noble science of defense. It marked the genius and

hand of a master. For, said he, it gave the prisoner every possible

advantage. Yet at the same time it cut off from the prosecution all the

evidence which went to connect the prisoner with the assemblage on the

island, to explain the destination and objects of the assemblage, and

to stamp beyond controversy the character of treason upon it.

If, asked Mr. Wirt, the views of the prisoner were, as they had been so

often represented by one of his counsel, highly honorable to himself

and glorious to his country, why not permit the evidence to disclose

those views?

“No, Sir,” he protested, “it is not squeamish modesty. It is no

fastidious delicacy that prompts these repeated efforts to keep back

the evidence. It is apprehension! It is alarm! It is fear, or rather

the certainty, that the evidence whenever it shall come forward will

fix the charge.”

And now Mr. Wirt, with the instinct of a good showman, was reminded

that he was speaking to an audience of men and must season his

discourse with a little spice. “I will not,” he asserted, “follow the

example which he [Mr. Wickham] has set me on a very recent occasion....

I will not, like him, in reply to an argument as naked as a sleeping

Venus--but certainly not half so beautiful--complain of the painful

necessity I am under, in the weakness and decrepitude of logical vigor,

of lifting first this flounce and then that furbelow, before I can

reach the wished for point of attack.” Mr. Wirt’s metaphor must at

least have provoked smiles from the audience, if not downright laughter.

On the contrary, said Mr. Wirt, he would endeavor to meet the

gentleman’s propositions in their full force and to answer them fairly.

He would not, as Mr. Wickham had done, as he was advancing toward them

with his mind’s eye, measure the height, breadth and power of the

proposition; if he found it beyond his strength, halve it; if it still

was beyond his strength, quarter it; if still necessary, subdivide

it into eighths; and when, by this process, he had reduced it to the

proper standard, take one of those sections and toss it with an air of

elephantine strength and superiority.

Mr. Wirt would not, in commenting on the gentleman’s authorities,

thank the gentleman with sarcastic politeness for introducing them,

declare that they conclude directly against him, read just so much

of the authority as serves the purpose of that declaration, omitting

that which contained the true point of the case which was made against

him. Nor, if forced by a direct call to read that part also, would he

content himself with running over it as rapidly and inarticulately as

he could, throw down the book with a theatrical air and exclaim “Just

as I said,” when he knew it was just as he had not said.

Having thus performed this little exercise in satire at Mr. Wickham’s

expense, Mr. Wirt got down to the case in point. He noted that Mr.

Wickham had read the Constitutional definition of treason and given the

rule by which it was to be interpreted. After he had done that it would

have been natural for him to proceed directly to apply that rule to the

definition and give the result.

But no. Even while they had their eyes on the gentleman he vanished

like a spirit from American ground and was seen no more until he

turned up in England, “resurging by a kind of intellectual magic in

the middle of the 16th century, complaining most dolefully of my Lord

Coke’s bowels.”

“Before we follow him in this excursion,” proposed the speaker, “it may

be well to inquire what it was that induced him to leave the regular

track of his argument. I will tell you what it was. It was, Sir, the

decision of the Supreme Court in the case of Bollman and Swartwout....

Sir, if the gentleman had believed this decision to be favorable to

him, we should have heard of it in the beginning of his argument.”

And so the prosecution was back again, lunging at the chink in the

defense’s armor which the Chief Justice, in one rare moment of careless

workmanship, had left there.

What said the Supreme Court? Mr. Wirt read the offending passage: “...

if a body of men be assembled, for the purpose of affecting by force

a treasonable purpose, all those who perform any part, however minute

or _however remote from the scene of action_, and who are actually

leaguered in the general conspiracy, are to be considered as traitors.”

The constant reiteration of his error must have brought a blush to the

tanned cheek of the Chief Justice. Or had constant repetition by now

rendered him immune to embarrassment?

Counsel for the defense, said Mr. Wirt, had taken the bold and

difficult ground that the passage which he had read was extrajudicial,

a mere _obiter dictum_. They were, he insisted, mistaken. It was a

direct adjudication of a point immediately before the Court.

The speaker referred to the fact that Judge Marshall had been asked

by the defense to disregard the Bollman-Swartwout decision. But, he

asked, how could an inferior court control the decision of the superior

court? If the Chief Justice, sitting as a circuit court, had the right

to disregard the rule decided by the Supreme Court and to adopt a

different rule, then every other inferior court had a right to do the

same. Then there would be as many various rules as to treason as there

were courts. The result, Mr. Wirt insisted, might be--and certainly

would be--that what would be treason in one circuit would not be

treason in another, and a man might be hanged in Pennsylvania for an

act against the United States, of which he would be perfectly innocent

in Virginia.

And, continued Mr. Wirt, if treason requires the actual presence at the

scene of the assemblage, how easy it would be for the principal traitor

to avoid this guilt and escape punishment forever. He might go into

distant states and from one state to another. He might secretly wander,

like a demon of darkness, from one end of the continent to the other.

He might enter into the confidence of the simple and unsuspecting. He

might pour his poison into the minds of those who were before innocent.

He might seduce them into love of his person, offer them advantages,

pretend that his measures were honorable and beneficial, connect them

in his plot and attach them to his glory.

Mr. Wirt’s hypothetical case was beginning to show a striking

resemblance to what Aaron Burr was charged with having done. And he was

not yet through. This imaginary man might prepare the whole mechanism

of the stupendous and destructive engine and put it in motion. Let

the rest be done by his agents. He might then go a hundred miles from

the scene of action. Let him but keep himself from the scene of the

assemblage and the immediate site of battle and he would be innocent in

law, while those whom he had deluded would suffer the death of traitors!

“Who,” he asked, “is the most guilty of treason? The poor, weak,

deluded instruments, or the artful and ambitious man who corrupted and

misled them? There is no comparison between his guilt and theirs. And

yet you secure impunity to him, while they are to suffer death! Is

this according to the rule of reason?” Here Mr. Wirt launched forth on

a lengthy dissertation on the subject of principals and accessories

before and after the fact that did credit to his familiarity with legal

precepts and the dicta of the authorities both in this country and in

England.

And now the speaker poised himself for the supreme effort, while a hush

of anticipation fell over the assemblage.

“Who is Blennerhassett?” he inquired in his melodious voice. “A native

of Ireland, a man of letters, who fled from the storms of his own

country to find quiet in ours. His history shows that war is not the

natural element of his mind. If it had been, he never would have

exchanged Ireland for America. So far is an army from furnishing the

society natural and proper to Mr. Blennerhassett’s character that, on

his arrival in America, he retired even from the population of the

Atlantic States and sought quiet and solitude in the bosom of our

western forests.”

Let the Chief Justice be secretly amused. Mr. Wirt was not going to

deny himself the superb opportunity of holding his audience spellbound

with his oratorical gifts. “But he carried with him taste and science

and wealth; and lo, the desert smiled!

“Possessing himself of a beautiful island in the Ohio, he rears upon it

a palace and decorates it with every romantic embellishment of fancy.

A shrubbery that Shenstone might have envied, blooms around him! An

extensive library spreads its treasures before him. A philosophical

apparatus offers to him all the secrets and mysteries of nature. Peace,

tranquillity and innocence shed their mingled delights around him.

“And to crown the enchantment of the scene, a wife, who is said to be

lovely even beyond her sex and graced with every accomplishment that

can render it irresistible, had blessed him with her love and made him

the father of several children. The evidence would convince you that

this is but a faint picture of the real life.”

The speaker’s countenance changed from joy to distress and his voice

assumed a solemn tone. “In the midst of all this peace, this innocent

simplicity and this tranquillity; this feast of the mind, this pure

banquet of the heart, the destroyer comes. He comes to change this

paradise into a hell. Yet the flowers do not wither at his approach. No

monitory shuddering through the bosom of their unfortunate possessor

warns him of the ruin that is coming upon him.

“A stranger presents himself. Introduced to their civilities by the

high rank which he had lately held in this country, he soon finds his

way to their hearts, by the dignity and elegance of his demeanor, the

light and beauty of his conversation and the seductive and fascinating

power of his address. The conquest was not difficult. Innocence is

ever simple and credulous. Conscious of no design itself, it suspects

none in others. It wears no guard before its breast. Every door and

portal and avenue of the heart is thrown open, and all who choose it

enter.

“Such was the state of Eden when the serpent entered its bowers. The

prisoner, in a more engaging form, winding himself into the open and

unpracticed heart of the unfortunate Blennerhassett, found but little

difficulty in changing the native character of that heart and the

objects of its affection. By degrees he infuses into it the poison of

his own ambition. He breathes into it the fire of his own courage;

a daring and desperate thirst for glory; an ardor panting for great

enterprises, for all the storm and bustle and hurricane of life.

“In a short time the whole man is changed, and every object of his

former delight is relinquished. No more he enjoys the tranquil scene.

It has become flat and insipid to his taste. His books are abandoned.

His retort and crucible are thrown aside. His shrubbery blooms and

breathes its fragrance upon the air in vain; he likes it not. His

ear no longer drinks in the rich melody of music; it longs for the

trumpet’s clangor and the cannon’s roar. Even the prattle of babes,

once so sweet, no longer affects him; and the angel smile of his wife

which hitherto touched his bosom with ecstasy so unspeakable, is now

unseen and unfelt.

“Greater objects have taken possession of his soul. His imagination has

been dazzled by visions of diadems, of stars and garters and titles of

nobility. He has been taught to burn with restless emulation at the

names of great heroes and conquerors. His enchanted island is destined

soon to relapse into a wilderness; and in a few months we find the

beautiful and tender partner of his bosom, whom he lately permitted not

the winds of summer ‘to visit too roughly,’ we find her shivering at

midnight, on the winter banks of the Ohio and mingling her tears with

the torrents that froze as they fell.

“Yet this unfortunate man, thus deluded from his interest and his

happiness, thus seduced from the paths of innocence and peace; thus

confounded in the toils that were deliberately spread for him, and

overwhelmed by the mastering spirit and genius of another--this

man, thus ruined and undone and made to play a subordinate part in

this grand drama of guilt and treason--this man is to be called the

principal offender, while he, by whom he was plunged into misery, is

comparatively innocent, a mere accessory. Is this reason? Is it law? Is

it humanity? Sir, neither the human heart nor the human understanding

will bear a perversion so monstrous and so absurd! So shocking to the

soul! So revolting to the reason!”

Thus ended Wirt’s classic accusation of Burr. The time remaining to

the speaker was devoted to a prosaic discussion of _bellum levatum_ as

distinguished from _bellum percussum_. Gentlemen on the other side,

said Mr. Wirt, asked for battles, bloody battles, hard knocks, the

noise of cannon. But there was none. There did not have to be. The

Constitution said “levying war,” not “making war.” He had recourse to

his dictionary to show that the word “levy” means “to raise.” So there

needed to be no force. The word force was used figuratively merely to

signify the assembled body and not any deed of violence.

Nevertheless, if the defense insisted upon force, did not the

assemblage on Blennerhassett Island exert a species of potential

force on the surrounding country? Did not Comfort Tyler and his party

put that country into a state of consternation? What urged the state

government of Ohio to send a body of men to take that party and seize

its boats? What induced the State Legislature to deliberate with closed

doors? What caused the militia of Wood County, Virginia, to be put in

motion and marched to the island? The speaker traced the wave of alarm

as it moved from the island southward all the way to New Orleans.

The day was almost spent when, with a sigh of weariness, Mr. Wirt

announced that he had finished what he had to say. He begged pardon for

consuming the time of the Court so long. He thanked it for its patience

and polite attention. He pleaded that he was much too exhausted to

recapitulate his argument. But to such a Court as that of the Chief

Justice’s he was sure that was unnecessary.

After his masterly effort Mr. Wirt would not have been human had he

not felt a glow of satisfaction over his performance. Even those on

the other side must have conceded that he had more than earned his

fee. All that came after the portrayal of the relationship between

Blennerhassett and Burr was anticlimax. That passage, duly recorded

by Mr. Robertson, found its way into books of elocution and became

one of the most popular pieces of literature to memorize and declaim.

The Chief Justice was kind enough to remark that he had been greatly

impressed by the speaker’s eloquence. What effect it had on the members

of the jury for whose consumption it was chiefly intended only they

could say, and they left behind them no record of their reactions.

There was also the effect on the prisoner whose misdeeds had been so

vividly described. The Colonel sat through it all calmly, but with his

alert mind he took in every word of it. It is said that in later years

he entertained himself and his friends by reciting the more florid

passages and that his performance seldom failed to be rewarded with

peals of derisive laughter.

_Chapter_ XVII

Wirt’s argument had consumed the better part of the day, but there

still was a little time left before the regular hour for adjournment.

Two of the lawyers for the prosecution having held the floor in

succession it was again the turn of the defense.

Of Colonel Burr’s lawyers none was better equipped by temperament to

counterbalance William Wirt than was Benjamin Botts. He, too, could

boast the vigor and abandon of youth. In fact he was the youngest of

all the array of legal talent which had been attracted to the case.

He was distinguished for his wit and he was a master of ridicule, for

which Mr. Wirt’s florid oratory made an excellent target. As Wirt had

set out after Wickham in his opening remarks, so young Botts turned his

guns on Wirt.

“I cannot promise you, Sir, a speech manufactured out of tropes

and figures,” he began with mock apology. Then, alluding to Wirt’s

reference to “an argument as naked as a sleeping Venus,” he continued:

“Instead of the introduction of a sleeping Venus, with all the luxury

of voluptuous and wanton nakedness to charm the reason through the

refined medium of sensuality, and to convince us that the law of

treason is with the Prosecution by leading our imaginations to the

fascinating richness and symmetry of a heaving bosom and luscious

waist, I am compelled to plod heavily and meekly on through the dull

doctrines of Hale and Foster.” Mr. Botts, too, was not without skill

in playing up to the gross humor of an all-male audience.

“So far though from reproving the gentleman’s excitement of the boiling

blood of such of us as are in the heyday of youth, without the previous

caution of clearing the hall of those whose once panting desires have

been chilled by age, and upon whom the forced ecstasy sat unnaturally

and uneasy, I only lament my utter incapacity to elicit topics of legal

science by an imitation of so novel and tempting an example. Nothing

but the impossibility of success would prevent me also from grasping

at the fame and glory on this grave occasion, and at this time of

pleasure, of enriching the leering lasciviousness of a like bewildering

thought to transport anew the old and the young.”

In such manner Mr. Botts soon put the assemblage in good humor. Even

the Chief Justice, who enjoyed a joke as much as the next man, must

have joined in the fun. Having thus ingratiated himself with his

audience by this gay introduction he proceeded to present his serious

argument. His first proposition he told them would be to endeavor to

establish the fact in support of the motion that the acts proved to

have taken place on Blennerhassett Island were not in themselves acts

of war and that no intention could make them acts of war.

What had actually happened? According to Mr. Botts about thirty men had

landed on the island and remained there for two or three days. It is

true, they had some arms and ammunition. They guarded their property at

the boats. They prepared provisions to take with them down the river.

At a place contiguous to the island it was admitted they had killed

some squirrels. As notable a circumstance as any in this overt act was

that they had had what one of the witnesses called “a watchword.” All

but Blennerhassett and Tyler were confessedly ignorant of the plan.

They got alarmed on hearing the report of a mob and fled secretly in

the night after Comfort Tyler had declared his purpose not to resist

constituted authorities.

Now, said Mr. Botts, the proposition of the opposing side was that

these were acts of war, that they were intended first against the

people of Wood County, Virginia, in which the island was situated, and

then against New Orleans.

He would suppose first that the acts were against Wood County. Very

well, then, the boats, the oars, the provisions for a long journey, the

after-descent of the river were overt acts of levying war against Wood

County.

“But, Sir, the party was armed!” he exclaimed, imitating the manner

of the prosecution. Why? Mr. Botts contended that it showed they were

expecting the people of Wood County would attack them. In other words

Mr. Botts apprehended that the people of Wood County meditated war on

the people of the island, not that the islanders meditated war against

the people of Wood County.

Then, continued Mr. Botts, it was found that the people of the island

had fled silently in the night from those of Wood County. And because

they fled, it seems they were guilty of acts of war!

On the other hand, said Mr. Botts, pursuing his argument, “if the war

was not against Wood County it was against New Orleans. And New Orleans

was 2200 miles away!”

In the same playful mood, Mr. Botts suggested that the defendant

might claim that these persons had no arms, or if they had guns that

they were not long enough to shoot all the way from the island to New

Orleans. He presumed that the reply the prosecution would make to that

was that no arms were necessary, that they might make war with their

fingers. Or the defendant might urge that persons in this country have

a right to carry arms, that it is also conformable to usage for people

going down the river to kill ducks and other such game.

“The prosecutor,” Mr. Botts presumed, “would answer that arms are not

necessary; that they had three or four guns, a little powder and shot

even to kill fowls and ten or twelve boats; that it was a most bloody

war indeed; that without arms it would be war, but with these arms it

was a most dangerous war against the United States!”

If this was making war against the United States, declared Mr. Botts,

then “If I run away and hide to avoid a beating, I am guilty and may

be convicted of assault and battery!” Here Mr. Botts suggested the

propriety of adjourning.

When Court met next morning and Mr. Botts resumed his argument he was

in the same facetious mood. Once more he went back to the charge of

levying war and recalled the failure of the grand juries in Mississippi

and Kentucky to indict.

“The Mississippi Territory and Kentucky, as we are informed, were

the seat of war,” he observed. “But the simpletons of that State and

Territory hunted but could not find the war. They were so stupid as not

to perceive in a collection of men without arms, without any possible

means of annoyance, without any hostile disposition and without

the possibility of getting away their women and families, anything

criminal, much less any aptitude to overturn two mighty empires.

“It remained for us, the proud members of the Virginia bar, to come out

and astonish the world with the profundity of our learning in matters

of war. They have ascertained that there was a terrible war. I ask you

what manner of war was it? We have had a much more serious war here

than on the island. We have had here a carnage of breaths, sour looks

and hard words and the roaring of vocal cannon. We have had a battle

with the laws and the Constitution fought courageously and furiously by

our enemy.

“Is it not a mockery to speak of the war on Blennerhassett’s Island?

Shall we not be the sport of Europe and the world by such a discussion?”

In spite of the nation’s independence, which it now had enjoyed for a

matter of more than thirty years, the Virginia bar still did obeisance

to that of England. Though Burke had died in 1797 and Charles James

Fox and the younger Pitt had gone to join their fathers within the

year, counsel in the Burr case transferred their veneration to their

successors in Westminster. They seemed to have imagined fatuously that

this spirit of camaraderie was reciprocated and that the great men of

England had temporarily put aside the affairs of empire to follow every

move being made by opposing counsel in the hall of the Virginia House

of Delegates in Richmond.

Now, continued Mr. Botts, Mr. Hay had said that constructive treason

in this country would not be dangerous. Mr. Botts would suppose

an imaginary case. He would suppose there had been well-grounded

apprehension of an approaching war with a neighboring and powerful

nation. He would suppose that the United States had a feeble army in

the neighborhood of the boundary line between the two countries, and

that the American general had orders to fall back. Mr. Botts, be it

noted, was as good at making hypothetical cases for the defense as was

Mr. Wirt for the prosecution.

He would suppose that the populous rich city of New Orleans was in

danger of invasion. He would suppose that a hero distinguished for

military science and valor and as patriotic as he was ambitious of

honorable fame--but whose good name was blighted and blasted by the

malice of his countrymen--should have seen the dangers hanging over his

country: New Orleans threatened with invasion and conquest by a Spanish

force, the citizens there in danger of murder and captivity, their

wives and daughters ready to be a prey to Spanish lust, and all else in

that favored country exposed to desolation.

He would suppose that the hero knew that a band of faithful patriots

could be collected immediately around his standard. He would suppose

that with this band of patriots the hero should at this fortunate and

critical moment have rescued the country, the army, the people, by

a reasonable relief to the decrepit and half baffled forces of the

United States. He would suppose that in the same magnanimous spirit the

hero should after this have gone on his enterprise to establish the

independence of the Mexicans and give liberty to millions now groaning

under bondage.

Suppose he had done all this: he would have acquired immortal glory and

be renowned in future ages as the deliverer of his country, worshiped

as its idol and called its savior as Washington was.

Thus Mr. Botts artfully contrived to present the character of Aaron

Burr as his defenders chose to imagine it. The defense scored the

prosecution for trying to introduce constructive treason into the

United States. It did not object to introducing constructive heroism,

provided the hero was Colonel Burr. The Colonel laughed at William

Wirt’s extravagant language. Is it not possible that he stifled a

cynical smile as he heard himself thus being glorified by young Botts?

Mr. Botts’s supposing ended, he next described in heart-rending

language the manner in which the well-meaning and patriotic Colonel had

been basely betrayed and thwarted. In what some might have considered

not too good taste he recalled that Christ himself had been abused,

mocked, and spit upon. Why then should not a mere mortal man be in like

manner abused?

The young champion next raised his lance against the President of the

United States. He charged that Mr. Jefferson’s interference with the

prosecution of the case was improper, illegal, and unconstitutional.

He had no doubt, he said, that the President had acted from good

intentions, without sufficiently reflecting on the subject, and that

he was inadvertently following one of the very worst English examples

in the most arbitrary reigns. He wished Mr. Jefferson could be at his

side now to hear what could be said on the subject. Young Mr. Botts was

sufficiently sure of his powers of persuasion to believe that under

those circumstances Mr. Jefferson would be convinced that he had done

wrong.

Then Mr. Botts came to his concluding peroration. “We are told,” he

said, “that the virtue of the people will do everything; that the voice

of the people must be heard and must decide where they are sovereign;

that the voice of the people is the voice of God; and that a majority

of the people must always do right....

“I hope the gentlemen ... will not refer the fate of individuals

accused to the sudden and violent impulse of their feelings and

passions.... There are cases where individuals have been sacrificed

by the voice of the people. Socrates was made to drink the hemlock,

and Aristides was banished by the people.... Admiral Byng was made

to die for the same cause. Jefferson was run down in the year 1780

by the voice of the people.” Mr. Botts’s reference here was to the

unpopularity of Mr. Jefferson during the Revolution when he was

Governor of Virginia and the state was invaded by the British and

complaints of Mr. Jefferson’s ineffectiveness in meeting the crisis

raised murmurs for his impeachment.

After that Mr. Botts was back again appealing to Holy Writ to drive

home his point: “Reformation and Christianity itself prove the general

errors subject to pervade the people. Jesus Christ himself was

crucified by the people.”

On this sacred note Mr. Botts closed his discourse. He had proved

himself to be as entertaining as any of his elder brethren of the bar.

The industrious Mr. Robertson rendered yeoman service in recording

the lengthy and often tedious proceedings. Even he was beginning to

tire. He concluded it was not necessary to set down all that was

said. Instead he contented himself with making the entry, “here some

facetious and pleasant remarks passed between Mr. Botts and Mr. MacRae;

which afforded amusement for the moment, but are omitted as irrelevant

to the report.” Irrelevant? Who knows but that if Mr. Robertson had

recorded the facetious and pleasant remarks that Mr. MacRae made in his

exchange with Mr. Botts, Mr. MacRae might have been spared the ignominy

of going down to posterity as a sour Scotsman.

Soon after there appeared the entry: “Here a desultory conversation

ensued between Mr. Botts and Mr. Wirt in which some warm and animated

observations were made respecting the evidence, and Mr. Wirt’s comments

thereon.” Had Mr. Botts’s ridicule got under Mr. Wirt’s skin? At this

point the Chief Justice poured oil on the troubled waters by remarking

that the evidence was such that different gentlemen might draw

different inferences from it.

After Botts came the District Attorney’s turn again. “I cannot,” he

confessed with his customary modesty, “instruct you by my learning,

amuse you by my wit, make you laugh by my drollery nor delight you with

my eloquence. All I can do is to express to you in plain language the

convictions perhaps of a mistaken judgment.” Here was no mock humility,

but the sincere outpouring of a spirit oppressed by the knowledge

that among his colleagues of the Richmond bar he was labeled as a

mediocrity. Hay would have been even duller of wit than public opinion

made him out to be if he had not noted the special consideration

assigned to such of his contemporaries as Wickham, Botts, and Wirt.

He could have consoled himself with the reflection that in such an

assemblage humility was a rare and welcome virtue.

Mr. Hay had no sooner fairly begun on his discourse than he made an

allusion to Justice Samuel Chase and his conduct in the Fries case

in which he had strained the law to convict for the Government. The

censure the judge brought on himself, observed Mr. Hay, was not on

account of his opinions but for his arbitrary and irregular conduct at

the trial. Chase, he reminded, attempted to wrest the decision from

the jury and prejudge the case before hearing all the evidence in it.

It was, said Mr. Hay, the identical thing this Court was being called

on to do by the gentlemen of the defense. At this the gentlemen of the

defense pricked up their ears. Mr. Hay was to hear from them later.

The remark about Justice Chase was preliminary to a dissertation on

the institution of trial by jury. “If,” Hay averred, “it ever shall

be determined by this Court that it has it in its power to take the

decision of facts from the jury, the trial by jury, one of the greatest

bulwarks of civil liberty, may be struck down and destroyed.”

The great question at issue in this case, he said, was compounded of

law and of fact, of which latter the jury were the judges. Therefore

every allegation which related to the indictment, all the evidence

relating to and bearing on the issue, ought to be brought forward and

heard by the jury. The prosecution held that Colonel Burr was guilty of

levying war against the United States. Colonel Burr said he was not.

The evidence the defense sought to exclude bore directly on the point

at issue. Mr. Hay expressed himself as positive the framers of the

Constitution never intended to take the decision of the general issue

in a criminal case away from the consideration of the jury and give it

to the judge.

The speaker paused for an impressive moment and then, selecting his

words with care, addressed the bench: “I consider this principle of

the trial by jury, preserved in its uttermost purity and independence,

as connected with the best principles of the human heart. It ought to

be viewed and approached with the utmost reverence and caution; and

when a judge is called to do what may lead him to encroach on this

principle, he will advance with the utmost circumspection and awe. I

will take the liberty to say that it will be far more safe and correct

to remain a thousand miles on this side of the line which separates

the rights of the Jury from those of the Court, than to go a hair’s

breadth beyond it; and if he should encroach he ought for no human

consideration to touch it. If ever he do, he undermines civil liberty.”

That short dissertation on trial by jury must have made some of those

present wonder if they had misjudged when they wrote George Hay off as

a mediocrity.

The District Attorney returned to the old question of whether actual

presence of the accused at the scene of the overt act was necessary to

sustain a charge of treason. Suppose, he said, Colonel Burr had never

been on the spot where the overt act was committed. Suppose he knew his

men were there and about to be attacked. Suppose he sent more men there

to help them, along with arms, ammunition, and provisions and all other

things necessary for their defense. Suppose an attack was made and

repelled and thousands fell in the battle. Would it be contended by the

gentlemen of the defense that Aaron Burr, not having been personally

present when this overt act of his procurement was committed, was not

a principal but an accessory? That his soldiers were principals in

treason, but he was not? To prove the fallacy Mr. Hay proposed that

they look at the result. He is innocent and safe. They are guilty and

punished.

“Is it possible,” he asked, “that the human mind can be so perplexed

by learning and so misled by ingenuity, so totally bereaved of all its

powers, as to adopt a conclusion like this?”

Mr. Hay closed his argument by reverting to Mr. Wickham’s expressed

fear that the doctrine the prosecution asked the Court to sanction

would be fatal to the liberty and happiness of the people of the

United States. He pictured Mr. Wickham trembling for his country,

himself, and his posterity lest the prosecution succeed.

“I too am a citizen of this country,” he declared, “and the father of

children for whose happiness and welfare I feel a solicitude as lively

and affectionate as any parent can feel. To the true happiness of my

country I hope I know that I am sincerely and ardently attached. But

I see no danger. I apprehend none for myself or my posterity. I am

perfectly willing to risk my own life, liberty and happiness, and those

of my posterity on the propriety of the principles which we recommend.

Let them avoid traitorous conspiracies and designs fatal to the liberty

and happiness of their fellow citizens; let them avoid traitorous

assemblies, overt acts of war, and they will be safe.”

Thus concluded Mr. Hay. Next on the list of pleaders was Luther Martin,

but he sent word to the Court that he was not ready. So Mr. Charles

Lee, of the defense, arose to fill the breech. It was one of the rare

occasions when he was recorded as having spoken.

Counsel for the defense had been waiting impatiently for a chance to

pounce on the District Attorney from the moment he brought up Justice

Chase and the Fries case. Now Mr. Lee had that agreeable opportunity.

“The gentleman said in substance there was no difference between the

opinion which we desire you to give and that for which Judge Chase was

impeached,” charged Mr. Lee, addressing the Chief Justice. “It was very

kind of the gentleman to remind the Court of the danger of a decision

of the motion in favor of the prisoner, a decision like that which has

already produced the impeachment of another judge.”

Mr. Lee knew full well he was touching a tender spot. By thus accusing

the District Attorney he was acting on the popular belief among Judge

Marshall’s friends that the Chief Justice was himself as much on trial

as was the prisoner at the bar. Mr. Hay was prompt to do what he could

to counteract that impression.

“The cases are different,” he replied. “What I said was only said to

put Mr. Botts right in his misrepresentation. It was innocently said

and compatible with the highest respect for the Court, not with the

design which the gentleman (I will not say candidly) insinuates.”

Here the Chief Justice intervened. “I did not consider you as making

any personal allusion, but as merely referring to the law,” he assured

Mr. Hay. Thus, with an exhibition of his customary common sense, Judge

Marshall graciously accepted Mr. Hay’s explanation, whatever his

innermost thoughts might have been.

Mr. Lee, however, persisted. “The gentleman plainly insinuated the

possibility of danger to the Court from a favorable opinion to the

prisoner,” he protested, “because he said that the opinion which

we claimed for him was the same in substance as had occasioned the

impeachment of one judge already. It certainly would not be unfair to

infer that it was intended to show that the same cause might again

produce the same effect.”

Colonel Burr’s urgent request that the trial be expedited seemed doomed

to failure. Mr. Lee, having been less long-winded than his colleagues,

completed his argument some time before the hour of adjournment. The

proposal was made to send a messenger to summon Mr. Martin whose

appearance was next on the agenda. But the lawyers of the defense who

were present declined to do so, stating again that Mr. Martin was not

yet ready. The Court therefore adjourned for the day.

It was not until Friday morning, August 28, that Mr. Martin at last

made his entry and rose to address the Court. In speech and appearance

he was coarse and crude. Toward his enemies he could be vindictive,

as he already had shown in the previous proceedings of the trial. His

emotions were as violently stirred in behalf of those he called his

friends. On the other hand no one surpassed him in his knowledge of the

law and in the application of that knowledge to whatever case he might

be pleading.

At the moment Colonel Burr enjoyed his complete loyalty. And since his

introduction to her a few weeks before he had developed a consuming

admiration for Theodosia Alston. Now came the supreme opportunity to

serve them both.

Mr. Martin opened his address with an expression of regret that the

artifices and persecutions of his enemies had placed Colonel Burr in

his present predicament. But, he continued: “I shall ever feel the

sincerest gratitude to Heaven, that my life has been preserved to this

time, and that I am enabled to appear before this Court in his defense.

“And if the efforts of these highly respectable and eminent gentlemen

with whom I have the honor to be associated, united with my feeble aid,

be successful in rescuing a gentleman for whom I with pleasure avow my

friendship and esteem, from the fangs of his persecutors--if our joint

efforts shall be successful in wiping away the tears of filial piety,

in healing the deep wounds inflicted on the breast of the child, by

the envenomed shafts of hatred and malice hurled at the heart of the

father--if our efforts shall succeed in preserving youth, innocence,

elegance and merit from despair, from distraction--it will be to me

the greatest pleasure. What dear delight will my heart enjoy. How

ineffable, how supreme will be my blessing.”

The solicitude of the elderly gentleman for the prisoner’s daughter

was not lost on his audience. The old and kindly disposed no doubt

heard them and were touched. The young and cynical were amused that the

old man’s infatuation for the beautiful young matron was capable of

producing such eloquence. It was one of the current jokes of the town.

However, pursued the speaker, private friendship for the accused and

his connections was not his only inducement. He was as well thankful

to Heaven that when a question as to the right construction of the

principles of treason was to be decided--on which the happiness or

misery of the present and future ages depended--he was to have an

opportunity to exert to the utmost his feeble talents in opposing

principles which he considered so destructive as those advanced on the

present occasion. If he and his colleagues, said Mr. Martin, were able

to satisfy the Court that the principles the reverse of those contended

for on the part of the prosecution ought to be established, he would

think he had not lived in vain.

Mr. Martin took pains to make it clear that neither Colonel Burr nor

his counsel had ever admitted or suggested that Harman Blennerhassett

was guilty of treason. What then was the propriety of Mr. Wirt saying

that they were willing to sacrifice him, and that he might be hanged

without pity or remorse on their part?

Mr. Martin then brought to bear all the wisdom acquired during his

thirty-six years at the bar. He referred to Hale and Hawkins. He

recalled the Statute of 39 Elizabeth Cap. 15, wherein A and B both

consented to enter a house to rob and only A entered and B stood by,

wherefore A was “ousted of his clergy” while B still had it. He cited

the case of Pudsey in 1 Hale 534 to show how it came within the general

principles of the cases of constructive presence as stated in Foster

349.

He, too, mentioned the case of My Lord Dacre who came with a band of

men to steal deer in the park of one Pelham. And he noted that Hawkins,

in his second volume, Chapter 9, section viii, page 442, also explained

very clearly the principle of constructive presence. He admitted that

in Great Britain there was a species of treason which consisted in the

intention without any act consummating the guilt of treason. He meant,

of course, compassing the death of the king when the crime was only

imagined. But in America, since there was no king, there were only two

species of treason, which were levying war against the United States or

adhering to their enemies, giving them aid and comfort.

“Sir,” he exclaimed, “I execrate a contrary doctrine as highly

tyrannical and oppressive. And here I beg leave to enter my censure

against the decisions of the court in Pennsylvania on this subject

in the cases of what are called the Whiskey and the Hot Water

Insurrections.”

Having thus abruptly paid his compliments to the American judges with

whose decisions he differed he went back across the sea to England and

John Wedderbourn’s case and Deacon’s case and that of the king versus

Captain Vaughan, who went aboard a vessel called the _Loyal Clencartie_

in the service of the French king to cruise against the subjects of

the English king. As he expounded the law in this masterly fashion how

could he have failed to bring a blush to the cheek of Mr. Ritchie of

the _Enquirer_ who had used his columns to belittle Luther Martin and

scoff at the absurdity of importing a Maryland lawyer to try a case in

a Virginia court.

It was gossiped that during the preparation for his appearance Mr.

Martin had drunk even more freely than was his usual custom. If so the

indulgence had done nothing to befuddle his brain or dim his memory of

precedents. Next he turned to the incident of Lord Balmerino entering

the gates of Carlisle and holding the city for the Pretender. He cited

other allegedly treasonable acts having to do with the efforts of the

Stuarts to regain their throne. This was a fruitful field for English

precedents for acts of treason. But, he contended, those who had levied

war in Perth were charged with levying it in Perth. So, too, were those

who levied war in Aberdeen charged with levying it in Aberdeen. He

could find no case in which a person was charged with levying war in a

place where he was not present.

“But,” he observed, “if the counsel for the Crown in Great Britain had

found out this new doctrine discovered by the ingenuity of the counsel

for this prosecution, prosecutions would have been easily conducted and

much trouble saved. If this new doctrine be as the gentlemen effect to

believe, unanswerably correct, then it shows incontrovertibly great

ignorance on the part of the lawyers who prosecuted in Great Britain

in encountering so much unnecessary trouble and adopting a mode of

prosecution so difficult as they did, and the superior ingenuity of the

gentlemen in discovering this very easy and plain mode.”

Then Mr. Martin was off after Nicholas Throgmorton, following his case

with allusions to the cases of Alice Lisle and Mary Speke, who were

so despitefully treated by Judge Jefferies of the Bloody Assizes. He

delved into the eighteenth year of the reign of King Edward I to bring

forth the case of Bago de Clare to whose house one John Wallis, a

clerk, brought a letter of citation from the Archbishop of Canterbury,

and some of de Clare’s family forced Wallis to eat the process and wax

seal affixed thereto. And de Clare pleaded that he was not required to

answer the suit brought against him until the principal actors had been

convicted. So he was released on bail to answer after the principals

had been convicted. From which incident, which had happened more than

five centuries before, Mr. Martin sought to prove that in the State of

Virginia in the year of Our Lord 1807, Colonel Burr could not legally

be brought to trial until Harman Blennerhassett had been tried and

convicted. If Mr. Botts’s allusion to the Crucifixion and Mr. MacRae’s

use of Uriah’s death through the connivance of David are excepted, Mr.

Martin deserved the prize for going farthest back into history for a

precedent.

The speaker had occupied the time of the Court for the entire day and

the hour was growing late. When asked if he could finish his argument

that evening he replied that he could not. So the Court was adjourned

until the usual hour on the morrow and judge, jury, learned counsel,

prisoner, witnesses, and spectators drew a sigh of relief and went off

to refresh themselves and enjoy as much of a night’s rest as the hot,

humid atmosphere permitted.

When Court reconvened on Saturday morning, August 29, Mr. Martin

resumed his argument. Here he gave his attention to the opinion in the

case of Bollman and Swartwout. He brought out that when the opinion

was given only four of the seven judges of the Supreme Court were

sitting. Would four judges in an extrajudicial manner have undertaken

to settle the construction of the law so infinitely important to the

United States? Would they have decided so important a question in a

collateral, irregular manner on a point not immediately before them?

And that also without the aid of the other three judges?

Even if they had done so, contended Mr. Martin, their decision

“certainly deserves no credit as binding on this Court. As a binding

judicial opinion it ought to have no more weight than the ballad or

song of Chevy Chase.”

Mr. Martin alluded to Mr. Hay’s statement “with great zeal and pathos,

that he pledged his own and the life of his children and posterity, on

the propriety of the doctrine which he has advocated: that, if they

avoid conspiracies, that if they be innocent, they will be safe.”

“A most delusive doctrine,” he exclaimed. And he warned Mr. Hay: “If

he be now in the full tide of successful experiment, in the enjoyment

of the approbation of his country and his government, so was, not long

ago, the gentleman whom I advocate. He was as highly distinguished by

the kind favor of the people as he could be by their suffrages.

“It was then incredible that their favor should so soon be changed

to calumny and rancor of party into the most malignant hatred. The

gentleman may now think himself perfectly safe, by the prevalence of

his party and his principles; but the day very possibly may come when

he may find himself as obnoxious as the gentleman whom I defend.

“He may possibly by the same means, the malice, the injustice and

violence of party spirit, like my client, not only find himself reviled

and calumniated, but his dearest friends abused and persecuted. I

should be sorry that such a prediction should be realized with respect

to any gentleman; but, such are the natural consequences of his own

pernicious doctrine, and those we oppose.”

And now the speaker arrived at the end of his argument. Those of the

assemblage whose minds may have wandered now and then in the course of

Mr. Martin’s exposition of the technicalities of the law were brought

to attention by the solemnity of his countenance and the careful

weighing of his words:

“When the sun mildly shines upon us, when the gentle zephyrs play

around us, we can easily proceed forward in the straight path of our

duty. But when the bleak clouds enshroud the sky with darkness, when

the tempest rages, the winds howl and the waves break over us--when the

thunders awfully roar over our heads and the lightnings of heaven blaze

around us--it is then that all the energies of the human soul are

called into action.

“It is then that the truly brave man stands firm at his post. It is

then that by an unshaken performance of duty man approaches the nearest

possible to the Divinity. Nor is there any object in the creation on

which the Supreme Being can look down with more delight and approbation

than on a human being in such a situation and thus acting.”

The speaker turned to look straight into the eyes of the Chief Justice

as he continued: “May that God who now looks down upon us, who has

in his infinite wisdom called you into existence and placed you in

that seat to dispose justice to your fellow citizens, to preserve and

protect innocence against persecution--may that God so illuminate your

understanding that you may know what is right; and may he nerve your

soul with firmness and fortitude to act according to that knowledge.”

So saying, Mr. Martin shuffled over to his seat. It is a safe

assumption that the Chief Justice was not a little moved.

There were souvenir hunters even in those early days. In the _Gazette

and General Advertiser_, organ of Richmond’s Federalists, on the

morning of August 31 appeared this advertisement:

The Gentleman--who while I was on Sat. last addressing the court,

TOOK MY CANE from the seat behind me and carried it away--is

respectfully requested to send it when he has done with it, to

the Bar of the Swan Tavern. Luther Martin.

It hardly required a public notice to let people know where Mr. Martin

in his moments of relaxation was most likely to be found.

_Chapter_ XVIII

One of the principals who failed to hear Luther Martin’s masterly

argument was Harman Blennerhassett. He felt unwell on Thursday; on

Friday he awoke with a continuation of his indisposition attended by a

fever which made him so miserable he returned to bed without waiting

for breakfast. In keeping with the prevailing custom he dosed himself

with three or four grains of calomel.

Blennerhassett was a hypochondriac but on this occasion his ailment

was not imaginary. He was a victim of influenza which suddenly struck

Richmond in epidemic form. Next day the news reached him in the

penitentiary that half the families in the town were afflicted. The

disease hit the staff of the _Enquirer_ so hard that it was with the

greatest difficulty that popular organ of public opinion continued

publication.

Kind Mrs. Gamble heard of Blennerhassett’s illness and did what she

could to contribute to his comfort. On Sunday she sent him fruit and

fresh butter and fine calf’s foot jelly nicely chilled in ice. The

same day he was honored by a call from Mr. Martin and was by that time

sufficiently recovered to receive the visitor. Mr. Martin appeared none

the worse for wear as a result of his very strenuous labor in court.

Blennerhassett recommended his brandy as being considered superior and

put a pint tumbler before the Marylander.

No ceremonies retarded the libation. Blennerhassett’s absence from

the court during the time Mr. Martin held the floor was not to deprive

him of the privilege of getting a generous sample of the gentleman’s

eloquence and wisdom. The visit did not exceed thirty-five minutes. Yet

so fluent was the speaker that he delivered an account of an entire

week’s proceedings in the trial. He not only quoted verbatim long

extracts from his own speech but also extracts from the speeches of

other lawyers on both sides of the case.

Mr. Martin also regaled his host with whole columns, from a series

of papers, which he had written under the pen name of Investigator.

He also caricatured Jefferson and gave a history of his acquaintance

with Burr, expatiating on the latter’s virtues and suffering. These

last were not received enthusiastically by Mr. Blennerhassett. At the

moment he happened to be feeling particularly aggrieved over the manner

in which he had been duped by the adventurer. In fact, the laudatory

comments on Burr made by Martin raised the suspicion that he had been

deliberately sent by Burr to restore Blennerhassett’s good humor as

a precaution against the ever-present danger of his turning state’s

evidence.

Among other things Martin expressed the opinion that because Burr had

alleged he expected a war between Spain and the United States his

expedition was lawful. But, countered Blennerhassett, “may not a jury

think Burr did _not_ expect war and find their verdict then on the

confession?”

If Burr supposed that Blennerhassett would be favorably impressed by

Martin he was greatly mistaken. The latter had hardly left his presence

before Blennerhassett sat down and went to work drawing one of those

pen portraits which were so much the vogue at the time among those who

laid any claim to literary talent.

“His manner,” wrote Blennerhassett, “is rude, and his language

ungrammatical, which is cruelly aggravated upon his hearers by the

verbosity and repetitions of his style.... Fancy has been as much

denied to his mind as grace to his person or habits. These are gross,

and incapable of restraint, even on the most solemn public occasions.”

The influenza skipped the Chief Justice. Perhaps it considered it

futile to attempt an assault on his hardy constitution. It was just

as well for, over the weekend, he had strenuous work to do. Court

had adjourned late Saturday afternoon. It was scheduled to reconvene

early Monday morning. In the approximately thirty-six hours between

adjournment and reconvening, it was Judge Marshall’s task to review the

arguments presented, weigh them against each other, and arrive at a

conclusion to be contained in a written opinion. The Judge was taking

no chances. He knew that whatever opinion he might render would be

immediately scanned in Washington and perhaps misconstrued, that any

slip he might make would be used against him.

Sunday was an important day in Richmond when almost everybody went to

church. The Roman Catholics were ministered to by the Abbé du Bois, a

refugee from the French Revolution, who said mass in the courtroom of

the Capitol. Methodists and Baptists were numerous and had their own

churches.

The House of Delegates was the scene of an unusual example of

denominational co-operation between the Episcopalians and the

Presbyterians. The two sects were led respectively by Parson John

Buchanan and Parson John Blair, devoted friends who, in their lighter

moments, discussed philosophy and punned in Latin. Buchanan was a

bachelor and well heeled. Blair had numerous progeny and was hard

pressed to make ends meet. So Parson Buchanan applied his logic to the

practical end of convincing Parson Blair that all of Parson Buchanan’s

fees for marriages, funerals, and the like should by right go to Parson

Blair.

The Presbyterians did not yet have a church and the only Episcopal

church was St. John’s, on a high hill to the east and hard to reach.

The upshot of it was that Episcopalians and Presbyterians worshipped

together in the House of Delegates, with Parson Buchanan and Parson

Blair occupying the pulpit on alternate Sundays.

Whether Sunday, August 30, 1807, was Parson Buchanan’s turn in the

pulpit or Parson Blair’s history does not record. Judge Marshall was

an intimate of both parsons and a devout churchman as well. But it is

unlikely that, with the exacting business in hand, he found time to

attend church that day.

Even with that allowance there was not much time for reflection. A

plausible explanation is that while the lawyers were debating the Chief

Justice was formulating his opinion. This one was to be the longest

in the whole trial and the one containing the most references to the

authorities. It may well be that he made notes of these authorities

cited by the speakers as the argument proceeded.

Did he work by candlelight long into the night? Did he wake up with the

birds and labor during the cool hours of the early morning? Or did he

sit under the trees in his spacious yard during the day, braving the

critical looks of his neighbors as they returned from church? Whatever

the Chief Justice’s method, when court met on Monday morning, August

31, he was ready to deliver his opinion. Counsel, jury, and public in

attendance knew that the crisis in the trial had been reached.

The ever-courteous Marshall made use of his introduction to compliment

counsel on both sides. The motion, he said, had been argued in a manner

worthy of its importance and with an earnestness evincing the strong

conviction felt by opposing counsel that the law was with them.

“A degree of eloquence,” he declared, “seldom displayed on any occasion

has embellished a solidity of argument and a depth of research by which

the court has been greatly aided in forming the opinion it is about to

deliver.”

The Chief Justice restated the issue which was that, the testimony

having shown that the prisoner was not present when the overt act

mentioned in the indictment took place, objection had been raised that

testimony offered to connect him with those who committed the overt act

was totally irrelevant and therefore must be rejected.

His first task was to clarify the confusion arising out of the opinion

in the Bollman and Swartwout case, which already had been brought up

by counsel on both sides. It was said that it was on the basis of that

opinion that the Grand Jury had seen fit to bring in the indictments

for treason. The offending phrase was the one which said: “If a body

of men be actually assembled for the purpose of effecting by force a

treasonable object, all those who perform any part, however minute, or

however remote from the scene of action, and who are actually leaguered

in the general conspiracy, are to be considered as traitors.”

If the phrase meant what it seemed to mean then, surely, the absence

of Colonel Burr from Blennerhassett Island at the time of the alleged

overt act in no way relieved him of his guilt. Was the phrase a mere

_obiter dictum_ or chance remark as the defense maintained, or was it

a formal declaration of the court changing the previous conception of

treason as laid down in the Constitution as the prosecution assumed

it to be? The time had come for the Chief Justice to make known which

interpretation was correct.

He had heard, said Judge Marshall, that his opinion had been construed

to mean that any assemblage whatever for a treasonable purpose, whether

in force or not in force, whether in condition to use violence or not

in that condition, was levying war. It had not been expressly advanced

by the bar, but he understood it had been adopted elsewhere. (Anyone

who was at all conversant with the existing political situation knew

that the interpretation referred to was that of President Jefferson.

It had been adopted by his partisans, and it was because it had gained

such a firm hold that the incidents of Blennerhassett Island, mild

as they were, were assumed by the prosecution to fulfill the Chief

Justice’s definition of an overt act of levying war.)

Judge Marshall pointed out that the court which gave the opinion was

composed of four judges. Of these he said one was sick. He seemed

uncertain as to this judge’s opinion. Three judges were absent.

Therefore, said the Chief Justice, if the three judges who were absent

concurred with the sick judge who was present “and perhaps dissents,”

a majority of the judges might overrule the decision. A critical

observer might have charged that the Chief Justice was falling back

upon a good many suppositions.

What, he asked, was levying war? He had, he said, looked at all the

English authorities and, so far as he could see, levying war meant just

that. The words had received no technical meaning different from their

natural meaning. The assemblage must be a warlike assemblage, carrying

the appearance of force, and in a situation to practice hostility. The

Chief Justice added for good measure that the American judges, so far

as their opinions had been quoted, seemed to go even farther than the

English authorities and require the actual exercise of force.

But, he reminded, it had been said that all these authorities had been

overruled by the decision of the Supreme Court in the case of the

United States versus Bollman and Swartwout. Now it would be expected

that an opinion which was to overrule all former precedents and to

establish a principle never before recognized would be expressed in

plain and explicit terms. Had the intention been to make so material

a change, then the Court ought to have expressly declared that any

assemblage of men whatever who had formed a treasonable design

constituted the fact of levying war. Yet no such declaration was made.

What was more, said the Chief Justice, in the case of Bollman and

Swartwout there was no evidence that even these two men had met for the

purpose of executing a plan. In their case the issue of an assemblage

did not appear. In short, the Chief Justice asserted that general

expressions ought not to be considered as overruling settled principles

without a direct declaration to that effect.

Thus at last the ghost of the opinion in the case of Bollman and

Swartwout was laid by the same hand that had raised him. At least the

Chief Justice must have hoped so. It was not often that his rare gift

of logical reasoning was put to so severe a test. By this time counsel

for the prosecution must have seen how the wind was blowing, if they

had ever harbored any doubts about it.

The Chief Justice now got to the nub of his opinion. It was essential,

he said, that an indictment be explicit as to the nature of the crime

and the place where it was committed. Otherwise the accused would not

know how to defend himself. The whole treason laid in the indictment

was the levying of war on Blennerhassett Island and the whole question

was whether the prisoner was legally present. It was as if no other

overt act ever had existed. Therefore, said Judge Marshall, the only

point the Court was examining was the constructive presence of the

prisoner at the fact charged.

Now, said he, had Burr arrived on the island he would have been present

in fact. Or, had he taken a position near enough to co-operate with

those on the island, the question of whether he was constructively

present would be a compound of law and fact which the jury would decide

with the assistance of the Court as respected the law.

On the other hand, if the prisoner was not with the party at the time,

did not intend to join it, and if his co-operation was at a great

distance, in fact in a different state, then he was not constructively

present. Therefore the Judge confessed that he was strongly of the

opinion that proof of the actual or legal presence of the prisoner on

the island by the evidence of two witnesses could not be made.

But, continued the Judge, the prosecution might contend that the

indictment did not charge the prisoner with actually being present

at the assemblage on the island, but that though he was not at it

he caused it. If the law was as the prosecution maintained then

the procurement of the assemblage took the place of presence at

the assemblage. In that case, he insisted, under the Constitution

procurement of an assemblage should be testified to by two witnesses

just like presence at an overt act.

Judge Marshall pointed out that, because the advising of treason or

the procuring of treason was a secret matter of the mind rather than

an actual deed, it might be objected that it would be hard to prove.

But, he retorted, the mere difficulty of proving a fact surely did not

justify a conviction without proof.

Was the testimony the Government proposed to offer to prove the

overt act laid in the indictment? No, it was evidence of subsequent

transactions at a different place and in a different state. Such

testimony, he declared, was not relevant. It could be produced only as

corroborative or confirmatory testimony, if it could be produced at all.

The Chief Justice had now dealt with the decision in the Bollman and

Swartwout case and made it clear that it had not been intended to serve

as a new rule of law introducing constructive treason into the United

States. He had followed that up by showing that neither Colonel Burr’s

actual presence nor legal presence on the island at the time of the

overt act had been proved. This done he was coming to the end of his

opinion. The words he was about to speak had evidently been carefully

chosen. He must have been aware of the solemnity of the moment even

though he may not have foreseen that he was speaking for posterity as

he began:

“Much has been said in the course of the argument on points on which

the Court feels no inclination to comment particularly; but which may,

perhaps not improperly, receive some notice.

“That this Court dares not usurp power is most true.

“That this Court dares not shrink from its duty is not less true.

“No man is desirous of becoming the peculiar subject of calumny. No

man, might he let the cup pass from him without self reproach, would

drain it to the bottom.

“But he has no choice in the case, if there be no alternative presented

to him but a dereliction of duty or the opprobrium of those who are

denominated the world, he merits contempt as well as the indignation of

his country, who can hesitate which to embrace.”

There spoke the soldier of the American Revolution. Not all the power

that could be exerted by the presidential office, not all the threats

of public violence nor the prospect of public scorn could frighten

John Marshall from doing his duty as he saw it. If Aaron Burr was to be

found guilty of treason it would be only after he had been granted all

the protection that was due him under the Constitution and the laws of

the land.

If that be an undue encroachment of the Judiciary on the powers of the

Executive and the Legislature, let Mr. Jefferson make the most of it!

“The result of the whole,” concluded Judge Marshall, returning to his

customary calm, judicial language, “is a conviction as complete as the

mind of the Court is capable of receiving on a complex subject, that

the motion must prevail.”

He observed that the jury had heard the opinion of the Court on the law

of the case. They would now apply that law to the fact and would find a

verdict of guilty or not guilty as their conscience might dictate.

Although the great probability of an opinion ruling out the rest of

the evidence must have been foreseen by the prosecution, Mr. Hay was

momentarily confused as to how next to proceed. So, as soon as the

Chief Justice had concluded his remarks to the jury, the District

Attorney requested that the Court grant him time to consider it. Judge

Marshall readily agreed and an adjournment was taken until the morrow.

Whatever courses the counsel for the prosecution may have discussed

among themselves during the evening they came upon no plan to counter

the opinion of the Chief Justice. So, when the Court met next day, Mr.

Hay announced that he had nothing to offer the jury either of evidence

or argument and must, therefore, leave the case to it.

At the order of the Chief Justice the jury then retired. The assemblage

was not kept long in suspense. Soon the jury was on its way back to

the courtroom led by its foreman, Colonel Carrington. Asked by Judge

Marshall if a verdict had been reached, the Colonel arose and replied:

“We of the jury say that Aaron Burr is not proved to be guilty under

this indictment by any evidence submitted to us. We therefore find him

not guilty.”

Not guilty “by any evidence submitted to us.” Did the jury then mean to

imply that had some of the evidence not been withheld under the motion

made by the defense and sustained by the Chief Justice, it would have

found Aaron Burr guilty? Would that not be the impression made on the

public? If such an impression were made on the public could the verdict

then be regarded as an exoneration?

Colonel Burr did not think so. He was on his feet at once protesting

and he was supported in his protest by other counsel for the defense.

The Colonel called the verdict unusual, informal and irregular. He

demanded that the objectionable qualification be stricken out.

Luther Martin called it a tempest in a teapot. Colonel Carrington

interposed to say that if the objections to the offending passage were

continued the jury would strike it out. He was immediately contradicted

by his fellow juryman Richard E. Parker, an ardent Jeffersonian, who

shouted that it had been inserted deliberately and that it would stay

there.

Judge Marshall listened patiently throughout the controversy and

compromised the issue by stating that, in the opinion of the Court, the

verdict was in effect the same as a verdict for acquittal. He would

therefore let it stand in the bill as the jury had pronounced it. The

entry made on the record would be simply, “Not Guilty.”

With his customary courtesy the Chief Justice thanked the jury for its

patient attention during the whole course of the long and tedious trial

and dismissed it. Attorney Hay, recognizing the hopelessness of getting

a verdict of treason on the basis of the assemblage on Blennerhassett

Island therefore entered a _nolle prosequi_ to the indictments of

Blennerhassett and the other alleged conspirators. That is to say,

having failed to convict Burr, the Government would drop the charges

against his subordinates. However, Hay asked that they and Burr as well

be still held on charges of treason on the possibility of some other

overt act elsewhere being charged against them. This move was made by

Mr. Hay at the instigation of President Jefferson. Again the Chief

Justice listened patiently through another long argument over the

legal point involved. When it was over he ruled against the request,

pointing out that all of them still had to be tried before the present

Court on a charge of misdemeanor.

Yet another protracted argument arose over the proper bail for Aaron

Burr. His counsel contended that he should give none at all. Now that

the Colonel’s neck was safe it was no longer necessary for the Chief

Justice to make every concession the defense requested. He insisted

upon bail and ordered it set at $5,000. In spite of the defense’s

contention that no one dared perform this favor for Colonel Burr

because of public opinion two sureties at once presented themselves

and, on September 8, Aaron Burr found himself a free man. For nine

weeks he had been under confinement.

This being the sickly season in Washington the President had retired to

Monticello. Postmaster Gideon Grainger had installed a special courier

service between Washington, Richmond, and Monticello and Secretary of

State Madison’s summer home, Montpelier. It was to Monticello that

Hay reported to the President on the Government’s defeat which he

attributed to the unfriendly attitude of Judge Marshall. To show that

this was not his opinion alone he stated that “Wirt, who has hitherto

advocated the integrity of the Chief Justice, now abandons him. This

last opinion has opened his eyes, and he speaks in the strongest terms

of reprobation.”

Jefferson was willing enough to adopt this excuse for the failure of

the prosecution. He replied at once, “Yours of the 1st came to hand

yesterday. The event has been what was evidently intended from the

beginning of the trial; that is to say, not only to clear Burr, but to

prevent the evidence from ever going before the world.

“But this latter must not take place. It is now, therefore, more than

ever indispensable that not a single witness be paid or permitted to

depart until his testimony has been committed to writing....

“These whole proceedings will be laid before Congress, that they may

decide whether the defect has been in the evidence of guilt, or in the

law, or in the application of the law, and that they may provide the

proper remedy for the past and the future.”

There was no doubt as to where the President believed the defect to

lie. Burr had escaped conviction of treason. But in his trial on the

charge of a misdemeanor there was a prospect that the witnesses, who

had been refused opportunity to testify by the Chief Justice, would be

heard.

“Not proved to be guilty by any evidence submitted to us.” The

President in his letter made it clear that Mr. Hay was to be

responsible for seeing that the evidence which had been withheld

reached the eyes and ears of Congress. Then Congress would know where

the defect lay and provide the proper remedy.

The President had abandoned the hunt for Aaron Burr. He was now hot on

the trail of the Chief Justice.

_Chapter_ XIX

An Act of Congress of 1794 provided that if any person should, within

the jurisdiction of the United States, begin or set on foot a military

expedition against the territory of any foreign power with whom the

United States was at peace, he would be guilty of a high misdemeanor.

It was under this statute that Burr, Blennerhassett, and their fellow

conspirators now were to be tried. The specific charge against them was

that they had begun or set on foot an expedition against Mexico, then a

possession of Spain with whom the United States was at peace.

It was the opinion of some people that, in their effort to have Burr

exonerated of the charge of treason, his counsel had virtually admitted

the misdemeanor. Blennerhassett, it will be recalled, criticized one of

Luther Martin’s arguments for just that reason.

In the few days that intervened between the two trials Colonel Burr was

making the most of his new freedom. With the beautiful Theodosia on his

arm he strolled through the town in order to give the Richmond populace

full opportunity to see and admire her. The most serious crisis in her

father’s affairs having passed, she was on the point of returning to

South Carolina with her husband and son.

Blennerhassett too had now been relieved of the ignominy of confinement

behind bars. Released from the penitentiary he went to board in town

while Colonel Burr moved from Luther Martin’s house to the one that

had previously been occupied by the Alstons. It was not long before

Blennerhassett received a visit from the Colonel. According to his own

account he represented distinctly and with firmness that he expected to

be repaid for all the financial losses he had suffered either through

endorsing Burr’s papers or buying supplies for him. And, since he was

no doubt quite aware that such payment was beyond the Colonel’s powers,

he let him know that he intended to hold Alston answerable for any

losses he might have sustained over and above the amount of Alston’s

guarantee by letter.

Both men were the objects of courtesies at the hands of the

fashionable element who composed the Federalist society in Richmond.

Blennerhassett’s interest in music was immediately rewarded by

invitations to meetings of the Harmonic Society. Though at the outset

he could not assist in the program because he had no spectacles, he

was granted an honorary membership for the length of his stay in town.

He found the flutes good, four violins moderately good, and three

excellent singers who performed some charming trios by Dr. Calcott,

inspired by extracts from Ossian. These were new to Blennerhassett’s

ears and, on the whole, he enjoyed himself so much that he stayed

listening to the music until midnight.

The visitor was more fortunate at a meeting of the society a few nights

later. Somebody lent him a pair of spectacles, thus enabling him to

read notes and take part in a symphony and also in a quartet by Pleyel;

but, he lamented, “with less effect than if I had been provided with my

own.”

In fact now that Blennerhassett was free, on Sundays when the Court was

not sitting and in the evenings, he found many opportunities to enjoy

the best Richmond society. He made a special visit to Mrs. Gamble, no

doubt to thank her in person for the calf’s foot jelly and butter she

had sent him while he was in prison. He found her to be “a most amiable

old lady, so fraught with the generous humanity characteristic of her

sex, as to suffer not the connections of her daughters ... to prevent

her expressing not merely a concern for the general hardships we have

suffered, but even to censure the last two days’ proceedings in court.”

The “connections” of her daughters were of course Agnes’s husband,

Governor Cabell, and Elizabeth’s husband William Wirt who, had it not

been for Hay’s _nolle prosequi_, would at that very moment have been

using his eloquence to get Blennerhassett hanged.

Mrs. William Brockenbrough, too, was among the ladies expressing

solicitude for the poor persecuted prisoners. The former mistress of

Tuckahoe and present wife of the rising young banker was, observed

Blennerhassett, the nearest approximation in Richmond to a _savant

bel esprit_. Her reputation for intelligence was, perhaps, somewhat

enhanced in Blennerhassett’s estimation by her insistence that she must

get a copy of “The Querist” to read. The proud author of that series

of articles just then was under the impression that David Robertson,

who had done such a fine job of taking notes on the trial in shorthand,

was going to give them a longer life by including them in the book he

proposed to compile on the trial. In this expectation he proved to be

mistaken. “The Querist” articles were not made a part of Robertson’s

two classic volumes.

After his long years on his island with no settlement closer than

Marietta, Blennerhassett evidently relished the cultivated society that

the capital of the Commonwealth of Virginia provided. He experienced

great delight in the piano performance of a talented young Frenchman.

It lasted two hours and introduced Blennerhassett to the most recent

compositions of Haydn who, at the age of 75 years, was still producing

his melodious music. At another meeting of the Harmonic Society

he enjoyed the company of Mrs. Wickham and of Mrs. Chevallié. It

did not quite compensate for the separation from his wife, but the

Blennerhassetts were not entirely out of touch. “I had this morning,”

he exulted, “a long double letter from my adored wife. Its red seal was

as welcome to my eyes as the evening star to the mariner.”

However, these delightful diversions could not entirely erase the fact

that the Messrs. Burr and Blennerhassett were in Richmond for other

than social affairs. On September 9 the petty jury to hear the case of

misdemeanor against the Colonel was sworn in and the trial of witnesses

commenced. The trial was less than a week old when the same obstacle

presented itself that had halted proceedings in the treason trial.

Defense counsel again objected to what they regarded as quantities of

irrelevant matter in the testimony.

After the issue had been debated at length the Chief Justice again

issued one of his long and learned opinions sustaining the defense’s

objection. The testimony, he ruled, must include only that which showed

the expedition to have been military in nature and designed against the

dominions of Spain. He ruled further that the testimony must deal only

with the acts charged in the indictment and which were alleged to have

occurred within the jurisdiction of the Court.

Again the District Attorney confessed he had presented all the

testimony answering the description of that which the Chief Justice

had ruled to be admissible. So, like the treason trial, that on the

misdemeanor charge came to an abrupt conclusion. It took the jury

not more than half an hour to find Aaron Burr not guilty of a high

misdemeanor. Again, as in the treason trial, on hearing the verdict Mr.

Hay entered a _nolle prosequi_ in the cases of Blennerhassett and the

other accused men.

The defeat of the Government was now well nigh complete. The gallant

Wilkinson, observing the proceedings in Richmond, wrote a letter of

condolence to his chief.

“The disgraceful and dishonorable scenes which have been passing in

review here are drawing to a close,” he lamented. “Burr has just been

acquitted on the trial for misdemeanor and now a motion will be made

for his transmittal to Kentucky, which will go off the same way. The

chief [Marshall] has stepped in too deep to retreat, and indeed, his

enterprise and hardihood almost justify the suspicion that he has been

a party to the conspiracy.” Wilkinson spoke of reforming the Federal

courts and getting rid of a “corrupt judge.”

Mr. Jefferson, in a letter to a friend took his cue from the General,

remarking: “The scenes which have been acting at Richmond are

sufficient to fill us with alarm. We supposed we possessed fixed laws

to guard us equally against treason and oppression; but it now appears

we have no law but the will of the judge.”

Once more it looked as though many of the Government’s witnesses, who

had been gathered together with such great pains and who had been

waiting all these weeks to testify, would go home without being heard.

But Mr. Hay had one more trump card to play. He moved that the alleged

conspirators be committed both on charges of treason and misdemeanor

which might have taken place in Ohio and Mississippi. Through this

motion the Chief Justice found himself transformed into an examining

magistrate. As such he regarded it as essential that all the evidence

be heard. So at last, in spite of the protests of defense counsel, the

Court was thrown open to any and all witnesses the Government chose to

present.

For the most part they were youths and humble folk who had joined the

expedition or had had dealings with the party on Blennerhassett Island.

Edmund P. Dane--the Blennerhassetts had come to his house at Belpré to

buy cider. They had invited him to go on the expedition, assuring him

it was not hostile to the Government and aimed only at settling the

Washita lands.

Israel Miller--he was with the expedition when Burr met it at the mouth

of the Cumberland. He mentioned a few weapons.

“Do they kill ducks and turkeys with bullets?” inquired Mr. MacRae, who

was familiar only with hunting on the eastern coast.

“If the gentleman had ever been in Kentucky,” remarked Burr dryly, “he

would have known that it was considered inglorious there to kill a

squirrel, or even ducks, with anything but bullets.”

James McDowell--he went with the expedition as far as Chickasaw

Bluffs, the present site of Memphis. He saw a few guns with bayonets,

but no boxes of arms. It appeared to him that Burr was in command.

Recalled to the stand, he admitted that after leaving the mouth of the

Cumberland he saw six or seven boxes that were so heavy he could not

lift them.

Stephen S. Welch--he joined the party at the mouth of the Cumberland.

He said the proposition put up to him was settlement of the Washita

lands. Samuel Moxley and Chandler Lindsay, John Mulholland and Hugh

Allen told much the same story.

“Had you any reason to suspect that any of the party meditated

hostility against the United States?” inquired Burr of Allen. “Never,”

Allen replied.

A prize witness for the prosecution was Sergeant Jacob Dunbaugh, a

member of Captain Bissell’s command at Fort Massac when the Burr

expedition passed there. Dunbaugh testified that Burr invited him to

join the expedition and go down the river, for which purpose Captain

Bissell gave him a furlough of twenty days. After the expedition had

left Bayou Pierre he said he saw Colonel Burr and another man go to the

bow of the boat and set to work with an ax, augur, and saw, chopping

and sawing. According to Dunbaugh two bundles of arms tied up with

cords were sunk. On being questioned he estimated the arms at from

forty to forty-three stands. He said he also saw pistols, swords,

blunderbusses, fusees, and tomahawks.

Dunbaugh testified further that, after Captain Bissell had given him

leave to go with the expedition, Colonel Burr had called him into his

cabin and asked him if he could persuade ten or twelve of the best men

in the garrison to go along. He protested that he had repelled any such

suggestion. On further questioning it was brought out that what the

Sergeant meant to convey was that Colonel Burr wanted the men to desert.

The reason for the alleged sinking of the arms was in order to hide

them from the Mississippi authorities when they made a search of the

boats. Dunbaugh said one man had been delegated to take out a hogshead

of potatoes with which to fill an arms box to make it look like a box

of potatoes. The arms, he declared, suspended by cords, were down so

deep that the boat could not get to within fifty yards of the shore.

Dunbaugh’s evidence was the strongest that yet had been given to

show the military aspects of the expedition. But it lost much of its

force when, under cross-examination, the Sergeant confessed that he

had overstayed his twenty-day furlough, had been arrested and found

guilty of desertion and imprisoned, and that he had written to General

Wilkinson promising him that if he were released he would be in New

Orleans in three days, presumably to do the General’s bidding in the

trial.

More impressive because of its source was the evidence of Alexander

Henderson, a respected citizen of Wood County. Mr. Henderson described

a visit from Mr. and Mrs. Blennerhassett who mentioned to him the

advantages to be gained by the West in separating from the Union. The

Blennerhassetts had remained for dinner and after the meal was over

Harman enlarged on the same theme in the presence of Alexander and his

brother John. He told them, said Alexander, that New Orleans was to be

seized, and that artillery to the number of fifty pieces belonging to

the French was to be commandeered.

“Did you understand whether he said anything for Mr. Jefferson?” asked

Mr. Wirt, evidently with an end to refreshing the witness’s memory.

Alexander replied that “Mr. Blennerhassett said that if Mr. Jefferson

was any way impertinent that Colonel Burr would tie him neck and heels

and throw him into the Potomac.”

“What did he say of his means of opposition to the Government?”

“He mentioned,” said Henderson, “that with three pieces of artillery

and 300 sharpshooters he could defend any pass in the Allegheny

Mountains against any force the Government could send.”

The witness testified further that Blennerhassett had shown them two

numbers of “The Querist” and told them he had written them.

“It is remarkable,” observed Mr. Wirt, addressing the Court, “that

Colonel Burr was at the island on the 1st of September and the first

number of ‘The Querist’ is dated the 4th.”

John Graham, Secretary of the Mississippi Territory, who had been

directed by the Government in Washington to investigate Burr’s

activities in the West, was next called to the stand. He told of

his meeting with Blennerhassett who, with his customary gift for

blundering, at first mistook him for a friend of Colonel Burr and

one who was sympathetic with the expedition. Yet he admitted that

Blennerhassett had mentioned the settlement of the Washita lands as

being the object. Furthermore, according to Graham, when he tried

to discourage him from taking part, Blennerhassett replied that the

expedition was legal, that he and Burr were familiar with the law and

knew what they were doing. As for the separation of the western country

from the Union, he and Burr held that it would be beneficial for the

people of the West but realized that they were not yet ready for it.

Saturday, September 26, was a red letter day in the trial since it

brought two colorful figures to the witness stand in the persons of

General Eaton and General Wilkinson. Eaton now was permitted to include

in his testimony that part of his affidavit which Judge Marshall had

forbidden in the treason trial on the ground that it was irrelevant

to the doings on Blennerhassett Island. The evidence was sensational

enough but, having been published in the newspapers throughout the

country months before, it was an old story that had lost most of its

original force.

According to Eaton, in the course of their conversations in Washington

during the winter of 1806, Burr told him that if he could win over

the Marine Corps and secure the interest of Truxtun, Preble, and

Decatur, he would turn Congress out neck and heels, assassinate the

President (or what amounted to that), and declare himself the protector

of an energetic government. Eaton insisted that Burr had used such

expressions as “hang him,” “throw him into the Potomac,” and “send him

to Carter’s Mountain.” Carter’s Mountain was that eminence overlooking

the town of Charlottesville, Virginia, on whose edge lay Monticello.

In response to these boasts Eaton claimed he had observed to Burr that

one solitary word would destroy him. When Burr inquired what the word

was Eaton replied, “Usurper.” Burr, continued Eaton, smiled at the

General’s want of confidence, quoted examples of dictators from ancient

history and, if Eaton’s memory served, mentioned Caesar, Cromwell, and

Bonaparte.

Yet who could believe Eaton, a mere adventurer who had not yet had time

to spend the $10,000 indemnity presented to him by the Government so

shockingly close to his appearance as its witness? Eaton’s blustering

and braggadocio while he was hanging around during the summer waiting

his summons to testify also had created an unfavorable impression

in the town. The story was spread that one disgusted Richmonder had

threatened to kick the Hero of Derne out of a saloon. Nevertheless

Eaton’s account of Burr’s lurid boasts bore an astonishing resemblance

to those the Morgans had claimed Burr had made to them, and those that

Alexander Henderson had charged that Blennerhassett had made to him.

Now at last, when the proceedings were almost through, General

Wilkinson was allowed to give his version of the conspiracy in open

court. It was the story of Samuel Swartwout’s arrival at Wilkinson’s

headquarters at Natchitoches with the cipher letter from Burr, and of

Eric Bollman’s arrival at New Orleans with the duplicate. It provided

a fresh opportunity for the General to present himself to that large

and attentive audience in the role of the savior of his country. But

the cross questioning to which he was subjected by the defense made him

squirm, while the explanations he gave in reply were a major test of

his ingenuity.

Had he made an erasure in the letter? Yes, he had erased the sentence

“yours, postmarked 13th of May, is received.” The sentence was a clear

giveaway that he had been in previous communication with Burr.

“Have you ever sworn that this was a true translation?” asked Mr. Botts.

“No, only substantially so,” was Wilkinson’s reply.

When the questioning drove him into a corner he excused his conduct on

the ground that at the time he had many military duties to perform in

defense of his country and was in a hurry. Besides, he had been upset

by the death of his wife. No doubt there was truth in that for his

devotion to her was universally acknowledged.

Why, Mr. Wickham asked him, had he waited from October 10th, when

Swartwout handed him the cipher letter, until October 21 to notify the

Government? Mr. Wickham’s implication was that he had needed the time

to make up his mind. But the General had a different and plausible

explanation. He said he took that time in order to get out of Swartwout

all the information he could about the conspiracy. Why had he asserted

in his first letter to the President that he did not know the leader?

Wilkinson pleaded that he was not at that time sure since he could not

fully trust what Swartwout told him.

September gave way to October and Wilkinson was still on the stand

being badgered by the defense. Counsel for Colonel Burr were desirous

of linking the General’s high-handed conduct in New Orleans with orders

issued by the Government. This line of questioning brought a protest

from Hay.

“It has been the constant effort of the counsel on the other side

to identify General Wilkinson with the Government,” he charged. “We

have heard of the plundering of post offices, violating of oaths and

prostrating of private rights. Now it is asked if the Government

approved of these acts. Is it proper, is it decorous to pursue this

course?”

“Do you recollect expressing to any person that he would confer

the highest obligation on the Government by seizing Colonel Burr?”

Wilkinson was asked by the defense. The General admitted that he might

have said that since those were his sentiments. His great object, he

declared, was to apprehend Burr and deliver him to the civil power

for trial. The city of Washington was the place he wished to have him

sent. But personal injury to the Colonel had not entered his head. He

recollected a German had come to him and proffered his services to take

the Colonel “dead or alive.”

“I was shocked at the very idea,” declared Wilkinson, “and declined

employing him.”

When Mr. Wickham demanded a letter purported to have been written by

President Jefferson to Wilkinson approving the measures the General had

taken, he set off another argument almost as acrimonious as that which

had attended Burr’s request for the _subpoena duces tecum_.

“These gentlemen, it seems, are carrying on an impeachment against the

President of the United States,” asserted Mr. Wirt, not unmindful of

the political effect of the charge. “What is their object in demanding

this letter? It is no more than vainly to attempt to inculpate the

President and to gratify their spleen and their resentment against

him. Is that their object? Is Aaron Burr more or less guilty because

he [the President] has approved or disapproved the measures of General

Wilkinson?”

“They want to ask you,” continued Wirt, pursuing the same line of

criticism, “which is the most guilty, Thomas Jefferson or Aaron Burr?

Are you, then, trying the President? And even if you were, would

you not have him here and give him an opportunity of answering his

accusers?”

“It has already been decided in this Court,” retorted Martin, “that the

President has no more rights than the man who walks the street in rags.

‘What!’ says the gentleman. ‘Will you then violate the sanctity of

private correspondence?’ Sir, when the gentleman made this declaration,

I looked at his face to see whether it did not blush with shame, and

even burst with blood, at expressing such a sentiment.”

“I hope, Sir,” observed Wirt, “the redness of a man’s face is no

evidence of a man’s guilt.” This indirect allusion to Martin’s own

physiognomy, red presumably as a result of his addiction to the bottle,

was surely not lost on the audience.

The Chief Justice expressed regret that the question of producing the

letter had arisen. It was irksome to him, he declared, and it was with

considerable reluctance that he must insist on its being produced. He

did only what his duty prescribed. However, Judge Marshall concluded,

though he did not know what the letter contained he saw no need for it

to be read aloud.

Now the tables were turned by the prosecution. They had contended all

along that there was nothing in the letter which reflected against

the President. So MacRae stated that the prosecution preferred to

read the letter to the Court as being “the only way to avert the

misrepresentations of its contents.”

No sooner had the argument over this one letter been settled than

Wickham was up again demanding that the whole of another letter from

the President to Wilkinson be produced. The Chief Justice reminded him

that the President had certified his reasons for communicating only

certain parts of the letter. He believed that the withheld parts had no

application to the present prosecution.

Mr. Martin was on his feet again protesting. He hoped the Court had

not definitely decided the point. Once more he displayed his personal

animosity toward Mr. Jefferson. “Has not the Court already declared

that the President has no more power here than any other man? If this

be law, for which gentlemen now contend, God forbid that I should

remain a citizen of the United States.

“And is Mr. Jefferson to be the judge of the relevancy of evidence,

in a prosecution in which he has taken so active a part against the

accused? Mr. Jefferson, Sir, is a man of no legal knowledge. He was of

no celebrity as a lawyer before the Revolution, and he has since been

so much engaged in political pursuits that he has had time enough to

unlearn the little law he ever knew.”

Hay rose to the defense of the President against Martin’s vituperation.

“The only end of this conversation is abuse of Mr. Jefferson,” he

declared.

“Sir,” retorted Martin, “we shall use Mr. Jefferson so as not to abuse

him. Remember that the life and liberty of Colonel Burr are shown to

be no longer dependent on Virginians, and therefore I am free from

any restraint in declaring what I think.” In this scornful thrust at

Virginians might be discerned a reply to Editor Ritchie’s belittlement

of the capacity of a certain Maryland lawyer.

It now came General Wilkinson’s turn to take the offensive in

explaining his actions in New Orleans by presenting the warning letter

dispatched by Andrew Jackson to Governor Claiborne. He also offered a

deposition stating that Burr’s stepson, Judge Prevost of New Orleans,

had saluted a public officer there and congratulated him on the

arrival of General John Adair, of Kentucky, as second in command to

Burr. The Chief Justice ruled that it would not be correct to permit

the deposition to be read. The episode nevertheless set the stage for

another of Wilkinson’s patriotic outbursts. Striking an attitude, he

declared: “I was prompted by that pure patriotism which has always

influenced my conduct and my character which I trust will never be

tarnished. I shall continue to defy the utmost art, fraud, deception

and villainy that my enemies can practice toward me.” Never was the

General more eloquent than when he was proclaiming his virtue.

The proceedings now and then were enlivened by verbal exchanges between

Martin and Wirt. General Wilkinson offered a letter that Mr. Martin had

requested the day before. Mr. Martin looked at it and remarked that it

was “only an extract.” The General replied that he had no other.

“We take no extracts,” retorted Mr. Martin, returning the paper to

Wilkinson.

“Unless it be of molasses,” commented Wirt, sotto voce. At this stage

of the trial Blennerhassett noted that Martin was “more in his cups

than usual.”

The defense counted heavily on the evidence of a Major James Bruff

to discredit Wilkinson. Bruff testified that the General had held

out inducements to him to join an expedition against the Spaniards.

He stated that on a visit to Washington he had called on both the

Secretary of War and the Attorney General and warned them that

Wilkinson was acquainted with Burr’s plans and involved in them.

According to his story, Secretary of War Dearborn replied that it would

be impossible at this point for the Government to discredit Wilkinson.

The Government, however, had foreseen Bruff’s testimony and prepared

itself to meet his charges. It had on hand as witnesses Lt. Edmund

Pendleton Gaines--the same Gaines who had accepted Burr’s arrest--and

a Commodore Shaw. These military gentlemen had traveled to Richmond

in the same stagecoach with Bruff and testified that Bruff had

announced in their presence that he was going to get even with General

Wilkinson. Bruff had recently been sentenced by a court martial. The

testimony of Gaines and Shaw supported that of Wilkinson who asserted

that Bruff had long borne toward him an implacable hatred.

In replying to Bruff’s testimony Wilkinson artfully contrived to work

into his evidence damaging details of Burr’s behavior at their meeting

at St. Louis in the autumn of 1805, which hitherto he had been given

no opportunity to present. He attributed to Burr a reference to the

imbecility of the Government, the prophecy that it would moulder to

pieces, and his observation that the people of the western country were

ready for revolt.

“To this I recollect replying,” said the General unctuously, “that

if he had not profited more by his journey in other respects, he had

better have remained at Washington or Philadelphia; for surely, said

I, my friend, no person was ever more mistaken. The western people

disaffected to the Government! They are bigoted to Jefferson and

Democracy.” The General no doubt was not unmindful of how that would

sound when the President got around to reading the testimony.

Wilkinson concluded with a parting shot at Major Bruff: “But I can

state before you, Sir [addressing the Chief Justice], and before God

[turning his eyes up to Heaven and placing his hands over his heart]

that this whole narrative is either a vile fabrication or a distortion

of fact.” After a whole week of cross-questioning the General’s spirit

was unquenched and his flair for histrionics as keen as ever.

During all these tedious proceedings the “culprit” Burr, too, contrived

to enjoy himself. Even though he had confessed that he had been duped,

Blennerhassett still could not resist the Colonel’s magic charm. The

two were constantly in each other’s company. Blennerhassett found

Burr as gay as ever and busy speculating on the reorganization of his

projects just as though they had never suffered the least interruption.

He observed to the Irishman that within six months all their schemes

would be remounted. What was more, said the Colonel, they could

remodel them in a better mould than formerly since they now had a

clearer view of the ground and a more perfect knowledge of men.

Blennerhassett listened in silence while he thought to himself “...

time will prove him as incapable in all his future efforts as he has

been in the past.”

The day after the jury had declared Burr “not guilty” of a misdemeanor

the Colonel celebrated at a dinner party which included Martin,

Blennerhassett, and a cousin of Judge Prevost. The dinner itself

featured all the delicacies Richmond’s lavish Main Street market

afforded and it included also three or four wines.

“Splendid poverty!” Blennerhassett exclaimed.