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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr. Wickham, Mr. Martin and Mr. Botts at once joined forces in
protesting so long a postponement. But Mr. Hay and Mr. Wirt held
out stoutly for a delay. An argument, they said, which had occupied
two whole days in the delivery before the Court must have required
considerable labor and reflection to arrange and digest. It was, they
contended, unreasonable therefore to suppose that such an elaborate
argument could be fully comprehended and an answer prepared in a single
day.

Mr. Wirt observed that five or six gentlemen of great professional
experience were united in the defense. He suggested that the motion
might be regarded as a mere _ruse de guerre_ which they have sprung on
counsel for the United States as from an ambuscade. More vital still,
he reminded that if the motion were to succeed there would be an end of
the case.

Judge Marshall, impressed by the arguments of counsel for the
prosecution, removed any possible charge of favoritism to the defense
on such an important issue by granting Mr. Hay’s request. Argument was
forthwith postponed until the following Monday.

Nevertheless the Court did meet briefly on Saturday. It was for the
purpose of arraigning Mr. Blennerhassett, who up until now had been
present at the sessions in a somewhat anomalous capacity. So he was
asked to stand while the indictment for treason was read to him. Here
Mr. Botts interrupted the proceedings to call attention to the fact
that there was a misnomer in the indictment and he had not had a chance
to consult with his associates on the subject. He asked that the
arraignment therefore be postponed. The request was granted by the ever
obliging Chief Justice.

The two attorneys for the defense had made it emphatic in their
arguments that the fundamental issue was whether treason as strictly
defined in the Constitution was to prevail, or whether the broader and
vaguer principle of constructive treason was to be admitted. If the
definition of treason as laid down in the Constitution were followed to
the letter the chances were good that Aaron Burr would go free.

But had not the President of the United States openly declared him
guilty? Did not half the people in the United States believe him so,
condemning him on the sensational evidence that had been spread by the
public press? Was the evidence of General Eaton and Commodore Truxtun
and of the lesser witnesses to be dismissed? Mr. Hay had alluded to
common sense. Mr. Randolph had sneered. But the prosecution had not yet
been heard.

_Chapter_ XVI

On the day following the postponement of his arraignment Harman
Blennerhassett received an important visitor in his quarters in the
penitentiary. He was William Duane, formerly a partner of Benjamin
Franklin and Edward Bache in the publication of the _Aurora_. Duane was
now the fiery editor of that newspaper which he had made into an organ
of the Jeffersonian administration.

Duane expressed great sympathy for Blennerhassett. He told him
his friends were making a scapegoat of him. Then, according to
Blennerhassett, Duane tried to lure him into a confession of having
written certain papers then in the hands of the prosecution. But the
chief purpose of his visit was to try to persuade Blennerhassett to
betray Burr.

This Blennerhassett steadfastly refused to do. And that was strange
since he was himself convinced that, as Duane charged, he had been made
a scapegoat. Less than a week after Duane’s visit he posted in his
diary: “You were right, therefore, honest Hay, on observing the other
day to Woodbridge while expressing your concern for my situation ‘that
I must now think Burr has duped me,’ but you were wrong in supposing I
am indebted to you for that discovery; I am possessed of it these nine
months.”

Burr, who had his informants everywhere, was immediately apprised of
Duane’s visit and lost no time getting word to Blennerhassett to be on
his guard against spies who came to him under the mask of friendship.
This precaution was unnecessary. Whatever Blennerhassett may have
confided in his diary he was always completely disarmed when he came
into the presence of Burr, and even when they were apart he seemed
still to feel Burr’s influence.

Blennerhassett’s determination not to turn state’s evidence against
the man who had duped him after pretending to be his friend has been
attributed to the mildness of his temper or lack of courage. Perhaps
each was a factor. However, Blennerhassett was not a bright man. His
romance with his niece is evidence of an impetuosity that led him to
act without counting the cost. From the time of their first meeting
Burr had courted him assiduously, protesting that his vegetating on
the island was a fraud on society and holding out brilliant prospects.
Blennerhassett would have been easy prey for an even less skillful
flatterer. What chance did he have with a man who had duped some of the
best minds in the country and once through oratory alone had provoked
the Senate of the United States to adoration and tears?

When Court convened on Monday morning MacRae opened for the prosecution
and proceeded to live up to his reputation for wielding a meat axe. He
was not the least restrained by the consciousness that his remarks were
being made in the presence of, and only a few feet away from, Aaron
Burr.

The prisoner, he charged, had with unexampled dexterity contrived from
the very beginning to quit his situation as the accused. Instead of
Aaron Burr defending himself he was found taking the high ground of
public accuser and assailing others.

Mr. MacRae charged that Wilkinson, whom he called “the savior of his
country,” and who had prevented the execution of this detestable
plot, had incurred the hatred and resentment of the prisoner and his
associates in proportion as he deserved well of his fellow citizens.
Let others question General Wilkinson’s integrity. Mr. MacRae would not
do so, at least not in open court. In MacRae’s language Wilkinson was
“the patriotic and meritorious officer (like those who opposed and
overthrew Cataline, the Roman conspirator) who defeated this daring
scheme against American liberty.” He would not be forgiven by the
conspirators.

“If he [Burr] be innocent and pure as the child unborn,” sneered Mr.
MacRae, “if he knew nothing of the transaction, why is it that this
motion is made to exclude the evidence?”

What though the prisoner was not on Blennerhassett Island when the
overt act was committed? The speaker contended that nevertheless he was
guilty if anybody was guilty.

“Is there,” he asked, “any human being who having heard the evidence of
General Eaton ... the evidence of the Messrs. Morgan and the evidence
of the witnesses who speak of the overt act on the island, especially
Jacob Allbright and Peter Taylor, who can doubt his guilt?”

Mr. MacRae professed he could not see why it should be necessary for
Colonel Burr to be on the island if he enlisted the men, and sent them
to the place, and acted himself in another place. Nor would he bring
up the cases of Lady Lisle and Elizabeth Gaunt who had been mentioned
by Mr. Wickham. Why should he? These women were accessories after the
fact. But Mr. Burr had never been regarded as an accessory. He was the
first mover of the plot; he planned it; he matured it; he contrived the
doing of the overt acts which others did. Burr, charged MacRae, was the
alpha and omega of this treasonable scheme, the very body and soul, the
very life of this treason!

So, observed Mr. MacRae, Mr. Wickham had said the prosecution must
prove that the accused was personally present. “No, Sir,” he objected,
“it is necessary to prove that some act laid has been committed....
If the law pronounce that he is liable for the acts of his agents,
and if the fact be that his agents by his commands and at his request
committed the act, where is the necessity of producing proof that he
was on the spot himself?”

Counsel for defense had complained of construction. “Our construction
we think correct,” said Mr. MacRae, “because it is calculated to secure
the rights of the citizen and to render the government permanent;
whereas if the construction of the gentlemen on the other side be
correct, the government cannot be permanent. Let them have the power of
ubiquity. The conspirators will always contrive to avail themselves of
this plea that they were not present.”

Mr. MacRae turned to the Old Testament to support his argument. He
used the story of David and Uriah to illustrate it, confident that it
was well known to all the members of the jury in an age when everybody
read the Bible. David, he recalled, placed Uriah in the front of the
battle in opposition to a very powerful opponent in order that he might
be slain and that David might afterwards take his wife. If people
were asked who killed Uriah, David or the antagonist by whose sword
Uriah fell, the answer of all would be that--having placed him in the
front of the battle in a place of the greatest danger, in immediate
opposition to a man of great strength and power, with the intention
that he should be killed--David killed him.

The speaker now applied the principle to the case before the court: “We
suppose the prisoner, by himself and agents, to have been acting at or
about the same time at Beaver, Kentucky, and Blennerhassett’s Island.
We suppose that the prisoner enlisted men before he came to Beaver and
at it. We suppose that afterwards his men proceeded by his orders to
Blennerhassett’s Island and were there increasing their numbers by more
enlistments and providing the means of transporting his troops down
the river towards the scene of his expedition, while he was himself
enlisting more men in Kentucky and making arrangements preparatory to
his meeting and assuming the command of the whole at the mouth of the
Cumberland; and that in fact, pursuant to this plan of operations, he
did meet and take the command of all the conspirators at the latter
place.”

Were there precedents in the law to sustain this argument? Mr. MacRae
cited the case mentioned in Hale’s _Pleas of the Crown_ of the Lord
Dacre and divers others who came to steal deer in the park of one
Pelham. Rayden, one of the company, killed the keeper of the park, the
Lord Dacre and the rest of the company being in other parts of the
park. Yet it was held that it was murder in them all and they died for
it. And, said Mr. MacRae, there was American authority, too. He cited
Dallas’s _Reports_ and the case of the United States against Mitchell
in the Whiskey Rebellion in which Judge Patterson’s charge to the jury
showed that a man did not have to be present at the overt act.

Mr. MacRae then took his fling at the Chief Justice’s opinion in the
Bollman and Swartwout case. So the defense considered that it was not a
regular, solemn opinion? That it was not delivered on a point depending
before the judges, but extrajudicial and therefore not authority? Why,
declared Mr. MacRae, the language was so explicit and pointed that it
could not possibly be misunderstood!

“I consider it as completely proved by the opinion,” he continued, “...
that if an unlawful assemblage of men meet together for a treasonable
purpose, it is not necessary that arms should be in the hands of those
who are concerned, in order to make them traitors. I have imagined
that their meeting together in this manner (in military array) would
be sufficient to show that their purpose was treasonable.” The speaker
considered also that the reason of East on the subject was conclusive
where, among other things, he held that “any assembly of persons met
for a treasonable purpose, armed and arrayed in a warlike manner, is
_bellum levatum_, though not _percussum_!”

On that note MacRae ended his argument. “_Bellum levatum_, though
not _percussum_”--that theme with variations was to get exhaustive
treatment from the next speaker. But the court had heard enough for one
day.

When, on the morning of the 25th, the bailiff called for order, the
dashing 34-year-old William Wirt entered the lists as champion for
the prosecution. Critics of the Administration complained bitterly of
President Jefferson using the public money to employ private counsel
when there were official prosecutors on the payroll for the purpose of
performing that particular task. But the President felt he could not
leave so great a responsibility to the plodding Hay, especially after
the defense had assembled such a dazzling array of counsel. On this
hot August morning the time had come for Wirt to prove to the public
that the fee he would receive from the Government was well earned.

Wirt was faced with a dilemma. At this phase of his career his chief
asset was a natural flow of words that was surpassed only by that
of James Wilkinson. While eloquence might be counted on to sway a
jury its effect on the Chief Justice was highly problematical. Judge
Marshall’s style was logical and free from embellishments. He also had
a keen sense of the ridiculous. Thus, as Wirt warmed to his task and
instinctively soared to rhetorical heights, he found himself being
rudely brought down to earth out of anxiety over what mischievous
thoughts lay behind the solemn countenance of the Chief Justice.

The speaker commenced his dissertation by undertaking to clear himself
of personal malice toward the accused. The humanity and justice of the
nation, he observed, would revolt at the idea of a prosecution pushed
on against a life which stood protected by the laws.

“I would not,” he declared, “plant a thorn, to rankle for life in my
heart by opening my lips in support of a prosecution which I felt and
believed to be unjust.”

Mr. Wirt noted that the gentlemen of the defense appeared to feel a
very extraordinary and unreasonable degree of sensibility on this
occasion. They seemed to forget the nature of the charge and that
he and his colleagues were the prosecutors. But the lawyers of the
prosecution did not stand there to pronounce a panegyric on the
prisoner. They were there to urge on him the crime of treason against
his country!

The lawyers of the prosecution, Mr. Wirt warned, were not going to
mince matters. When they spoke of treason they must call it treason.
When they spoke of a traitor they must call him a traitor. When they
spoke of a plot to dismember the Union, to undermine the liberties of
a great portion of the people of this country and subject them to a
usurper and a despot, they were obliged to use the terms that conveyed
those ideas.

Why, then, were the gentlemen of the defense so sensitive? Why on those
occasions so necessary, so unavoidable, did they shrink back with so
much agony of nerve, as if instead of being in a hall of justice they
were in a drawing room with Colonel Burr and were barbarously violating
towards him every principle of decorum and humanity?

The speaker then proceeded to deal facetiously with Wickham’s
erudition. The latter, he reminded, had invited them to consider the
subject abstractly. But would there not be danger in that? While they
were mooting points, pursuing ingenious hypotheses, chasing elementary
principles over the wide extended plains and Alpine heights of
abstracted law, was there not danger that they would lose sight of the
great question before the Court?

The motion before the Court, Mr. Wirt agreed, was a bold and original
stroke in the noble science of defense. It marked the genius and
hand of a master. For, said he, it gave the prisoner every possible
advantage. Yet at the same time it cut off from the prosecution all the
evidence which went to connect the prisoner with the assemblage on the
island, to explain the destination and objects of the assemblage, and
to stamp beyond controversy the character of treason upon it.

If, asked Mr. Wirt, the views of the prisoner were, as they had been so
often represented by one of his counsel, highly honorable to himself
and glorious to his country, why not permit the evidence to disclose
those views?

“No, Sir,” he protested, “it is not squeamish modesty. It is no
fastidious delicacy that prompts these repeated efforts to keep back
the evidence. It is apprehension! It is alarm! It is fear, or rather
the certainty, that the evidence whenever it shall come forward will
fix the charge.”

And now Mr. Wirt, with the instinct of a good showman, was reminded
that he was speaking to an audience of men and must season his
discourse with a little spice. “I will not,” he asserted, “follow the
example which he [Mr. Wickham] has set me on a very recent occasion....
I will not, like him, in reply to an argument as naked as a sleeping
Venus--but certainly not half so beautiful--complain of the painful
necessity I am under, in the weakness and decrepitude of logical vigor,
of lifting first this flounce and then that furbelow, before I can
reach the wished for point of attack.” Mr. Wirt’s metaphor must at
least have provoked smiles from the audience, if not downright laughter.

On the contrary, said Mr. Wirt, he would endeavor to meet the
gentleman’s propositions in their full force and to answer them fairly.
He would not, as Mr. Wickham had done, as he was advancing toward them
with his mind’s eye, measure the height, breadth and power of the
proposition; if he found it beyond his strength, halve it; if it still
was beyond his strength, quarter it; if still necessary, subdivide
it into eighths; and when, by this process, he had reduced it to the
proper standard, take one of those sections and toss it with an air of
elephantine strength and superiority.

Mr. Wirt would not, in commenting on the gentleman’s authorities,
thank the gentleman with sarcastic politeness for introducing them,
declare that they conclude directly against him, read just so much
of the authority as serves the purpose of that declaration, omitting
that which contained the true point of the case which was made against
him. Nor, if forced by a direct call to read that part also, would he
content himself with running over it as rapidly and inarticulately as
he could, throw down the book with a theatrical air and exclaim “Just
as I said,” when he knew it was just as he had not said.

Having thus performed this little exercise in satire at Mr. Wickham’s
expense, Mr. Wirt got down to the case in point. He noted that Mr.
Wickham had read the Constitutional definition of treason and given the
rule by which it was to be interpreted. After he had done that it would
have been natural for him to proceed directly to apply that rule to the
definition and give the result.

But no. Even while they had their eyes on the gentleman he vanished
like a spirit from American ground and was seen no more until he
turned up in England, “resurging by a kind of intellectual magic in
the middle of the 16th century, complaining most dolefully of my Lord
Coke’s bowels.”

“Before we follow him in this excursion,” proposed the speaker, “it may
be well to inquire what it was that induced him to leave the regular
track of his argument. I will tell you what it was. It was, Sir, the
decision of the Supreme Court in the case of Bollman and Swartwout....
Sir, if the gentleman had believed this decision to be favorable to
him, we should have heard of it in the beginning of his argument.”

And so the prosecution was back again, lunging at the chink in the
defense’s armor which the Chief Justice, in one rare moment of careless
workmanship, had left there.

What said the Supreme Court? Mr. Wirt read the offending passage: “...
if a body of men be assembled, for the purpose of affecting by force
a treasonable purpose, all those who perform any part, however minute
or _however remote from the scene of action_, and who are actually
leaguered in the general conspiracy, are to be considered as traitors.”

The constant reiteration of his error must have brought a blush to the
tanned cheek of the Chief Justice. Or had constant repetition by now
rendered him immune to embarrassment?

Counsel for the defense, said Mr. Wirt, had taken the bold and
difficult ground that the passage which he had read was extrajudicial,
a mere _obiter dictum_. They were, he insisted, mistaken. It was a
direct adjudication of a point immediately before the Court.

The speaker referred to the fact that Judge Marshall had been asked
by the defense to disregard the Bollman-Swartwout decision. But, he
asked, how could an inferior court control the decision of the superior
court? If the Chief Justice, sitting as a circuit court, had the right
to disregard the rule decided by the Supreme Court and to adopt a
different rule, then every other inferior court had a right to do the
same. Then there would be as many various rules as to treason as there
were courts. The result, Mr. Wirt insisted, might be--and certainly
would be--that what would be treason in one circuit would not be
treason in another, and a man might be hanged in Pennsylvania for an
act against the United States, of which he would be perfectly innocent
in Virginia.

And, continued Mr. Wirt, if treason requires the actual presence at the
scene of the assemblage, how easy it would be for the principal traitor
to avoid this guilt and escape punishment forever. He might go into
distant states and from one state to another. He might secretly wander,
like a demon of darkness, from one end of the continent to the other.
He might enter into the confidence of the simple and unsuspecting. He
might pour his poison into the minds of those who were before innocent.
He might seduce them into love of his person, offer them advantages,
pretend that his measures were honorable and beneficial, connect them
in his plot and attach them to his glory.

Mr. Wirt’s hypothetical case was beginning to show a striking
resemblance to what Aaron Burr was charged with having done. And he was
not yet through. This imaginary man might prepare the whole mechanism
of the stupendous and destructive engine and put it in motion. Let
the rest be done by his agents. He might then go a hundred miles from
the scene of action. Let him but keep himself from the scene of the
assemblage and the immediate site of battle and he would be innocent in
law, while those whom he had deluded would suffer the death of traitors!

“Who,” he asked, “is the most guilty of treason? The poor, weak,
deluded instruments, or the artful and ambitious man who corrupted and
misled them? There is no comparison between his guilt and theirs. And
yet you secure impunity to him, while they are to suffer death! Is
this according to the rule of reason?” Here Mr. Wirt launched forth on
a lengthy dissertation on the subject of principals and accessories
before and after the fact that did credit to his familiarity with legal
precepts and the dicta of the authorities both in this country and in
England.

And now the speaker poised himself for the supreme effort, while a hush
of anticipation fell over the assemblage.

“Who is Blennerhassett?” he inquired in his melodious voice. “A native
of Ireland, a man of letters, who fled from the storms of his own
country to find quiet in ours. His history shows that war is not the
natural element of his mind. If it had been, he never would have
exchanged Ireland for America. So far is an army from furnishing the
society natural and proper to Mr. Blennerhassett’s character that, on
his arrival in America, he retired even from the population of the
Atlantic States and sought quiet and solitude in the bosom of our
western forests.”

Let the Chief Justice be secretly amused. Mr. Wirt was not going to
deny himself the superb opportunity of holding his audience spellbound
with his oratorical gifts. “But he carried with him taste and science
and wealth; and lo, the desert smiled!

“Possessing himself of a beautiful island in the Ohio, he rears upon it
a palace and decorates it with every romantic embellishment of fancy.
A shrubbery that Shenstone might have envied, blooms around him! An
extensive library spreads its treasures before him. A philosophical
apparatus offers to him all the secrets and mysteries of nature. Peace,
tranquillity and innocence shed their mingled delights around him.

“And to crown the enchantment of the scene, a wife, who is said to be
lovely even beyond her sex and graced with every accomplishment that
can render it irresistible, had blessed him with her love and made him
the father of several children. The evidence would convince you that
this is but a faint picture of the real life.”

The speaker’s countenance changed from joy to distress and his voice
assumed a solemn tone. “In the midst of all this peace, this innocent
simplicity and this tranquillity; this feast of the mind, this pure
banquet of the heart, the destroyer comes. He comes to change this
paradise into a hell. Yet the flowers do not wither at his approach. No
monitory shuddering through the bosom of their unfortunate possessor
warns him of the ruin that is coming upon him.

“A stranger presents himself. Introduced to their civilities by the
high rank which he had lately held in this country, he soon finds his
way to their hearts, by the dignity and elegance of his demeanor, the
light and beauty of his conversation and the seductive and fascinating
power of his address. The conquest was not difficult. Innocence is
ever simple and credulous. Conscious of no design itself, it suspects
none in others. It wears no guard before its breast. Every door and
portal and avenue of the heart is thrown open, and all who choose it
enter.

“Such was the state of Eden when the serpent entered its bowers. The
prisoner, in a more engaging form, winding himself into the open and
unpracticed heart of the unfortunate Blennerhassett, found but little
difficulty in changing the native character of that heart and the
objects of its affection. By degrees he infuses into it the poison of
his own ambition. He breathes into it the fire of his own courage;
a daring and desperate thirst for glory; an ardor panting for great
enterprises, for all the storm and bustle and hurricane of life.

“In a short time the whole man is changed, and every object of his
former delight is relinquished. No more he enjoys the tranquil scene.
It has become flat and insipid to his taste. His books are abandoned.
His retort and crucible are thrown aside. His shrubbery blooms and
breathes its fragrance upon the air in vain; he likes it not. His
ear no longer drinks in the rich melody of music; it longs for the
trumpet’s clangor and the cannon’s roar. Even the prattle of babes,
once so sweet, no longer affects him; and the angel smile of his wife
which hitherto touched his bosom with ecstasy so unspeakable, is now
unseen and unfelt.

“Greater objects have taken possession of his soul. His imagination has
been dazzled by visions of diadems, of stars and garters and titles of
nobility. He has been taught to burn with restless emulation at the
names of great heroes and conquerors. His enchanted island is destined
soon to relapse into a wilderness; and in a few months we find the
beautiful and tender partner of his bosom, whom he lately permitted not
the winds of summer ‘to visit too roughly,’ we find her shivering at
midnight, on the winter banks of the Ohio and mingling her tears with
the torrents that froze as they fell.

“Yet this unfortunate man, thus deluded from his interest and his
happiness, thus seduced from the paths of innocence and peace; thus
confounded in the toils that were deliberately spread for him, and
overwhelmed by the mastering spirit and genius of another--this
man, thus ruined and undone and made to play a subordinate part in
this grand drama of guilt and treason--this man is to be called the
principal offender, while he, by whom he was plunged into misery, is
comparatively innocent, a mere accessory. Is this reason? Is it law? Is
it humanity? Sir, neither the human heart nor the human understanding
will bear a perversion so monstrous and so absurd! So shocking to the
soul! So revolting to the reason!”

Thus ended Wirt’s classic accusation of Burr. The time remaining to
the speaker was devoted to a prosaic discussion of _bellum levatum_ as
distinguished from _bellum percussum_. Gentlemen on the other side,
said Mr. Wirt, asked for battles, bloody battles, hard knocks, the
noise of cannon. But there was none. There did not have to be. The
Constitution said “levying war,” not “making war.” He had recourse to
his dictionary to show that the word “levy” means “to raise.” So there
needed to be no force. The word force was used figuratively merely to
signify the assembled body and not any deed of violence.

Nevertheless, if the defense insisted upon force, did not the
assemblage on Blennerhassett Island exert a species of potential
force on the surrounding country? Did not Comfort Tyler and his party
put that country into a state of consternation? What urged the state
government of Ohio to send a body of men to take that party and seize
its boats? What induced the State Legislature to deliberate with closed
doors? What caused the militia of Wood County, Virginia, to be put in
motion and marched to the island? The speaker traced the wave of alarm
as it moved from the island southward all the way to New Orleans.

The day was almost spent when, with a sigh of weariness, Mr. Wirt
announced that he had finished what he had to say. He begged pardon for
consuming the time of the Court so long. He thanked it for its patience
and polite attention. He pleaded that he was much too exhausted to
recapitulate his argument. But to such a Court as that of the Chief
Justice’s he was sure that was unnecessary.

After his masterly effort Mr. Wirt would not have been human had he
not felt a glow of satisfaction over his performance. Even those on
the other side must have conceded that he had more than earned his
fee. All that came after the portrayal of the relationship between
Blennerhassett and Burr was anticlimax. That passage, duly recorded
by Mr. Robertson, found its way into books of elocution and became
one of the most popular pieces of literature to memorize and declaim.
The Chief Justice was kind enough to remark that he had been greatly
impressed by the speaker’s eloquence. What effect it had on the members
of the jury for whose consumption it was chiefly intended only they
could say, and they left behind them no record of their reactions.

There was also the effect on the prisoner whose misdeeds had been so
vividly described. The Colonel sat through it all calmly, but with his
alert mind he took in every word of it. It is said that in later years
he entertained himself and his friends by reciting the more florid
passages and that his performance seldom failed to be rewarded with
peals of derisive laughter.

_Chapter_ XVII

Wirt’s argument had consumed the better part of the day, but there
still was a little time left before the regular hour for adjournment.
Two of the lawyers for the prosecution having held the floor in
succession it was again the turn of the defense.

Of Colonel Burr’s lawyers none was better equipped by temperament to
counterbalance William Wirt than was Benjamin Botts. He, too, could
boast the vigor and abandon of youth. In fact he was the youngest of
all the array of legal talent which had been attracted to the case.
He was distinguished for his wit and he was a master of ridicule, for
which Mr. Wirt’s florid oratory made an excellent target. As Wirt had
set out after Wickham in his opening remarks, so young Botts turned his
guns on Wirt.

“I cannot promise you, Sir, a speech manufactured out of tropes
and figures,” he began with mock apology. Then, alluding to Wirt’s
reference to “an argument as naked as a sleeping Venus,” he continued:
“Instead of the introduction of a sleeping Venus, with all the luxury
of voluptuous and wanton nakedness to charm the reason through the
refined medium of sensuality, and to convince us that the law of
treason is with the Prosecution by leading our imaginations to the
fascinating richness and symmetry of a heaving bosom and luscious
waist, I am compelled to plod heavily and meekly on through the dull
doctrines of Hale and Foster.” Mr. Botts, too, was not without skill
in playing up to the gross humor of an all-male audience.

“So far though from reproving the gentleman’s excitement of the boiling
blood of such of us as are in the heyday of youth, without the previous
caution of clearing the hall of those whose once panting desires have
been chilled by age, and upon whom the forced ecstasy sat unnaturally
and uneasy, I only lament my utter incapacity to elicit topics of legal
science by an imitation of so novel and tempting an example. Nothing
but the impossibility of success would prevent me also from grasping
at the fame and glory on this grave occasion, and at this time of
pleasure, of enriching the leering lasciviousness of a like bewildering
thought to transport anew the old and the young.”

In such manner Mr. Botts soon put the assemblage in good humor. Even
the Chief Justice, who enjoyed a joke as much as the next man, must
have joined in the fun. Having thus ingratiated himself with his
audience by this gay introduction he proceeded to present his serious
argument. His first proposition he told them would be to endeavor to
establish the fact in support of the motion that the acts proved to
have taken place on Blennerhassett Island were not in themselves acts
of war and that no intention could make them acts of war.

What had actually happened? According to Mr. Botts about thirty men had
landed on the island and remained there for two or three days. It is
true, they had some arms and ammunition. They guarded their property at
the boats. They prepared provisions to take with them down the river.
At a place contiguous to the island it was admitted they had killed
some squirrels. As notable a circumstance as any in this overt act was
that they had had what one of the witnesses called “a watchword.” All
but Blennerhassett and Tyler were confessedly ignorant of the plan.
They got alarmed on hearing the report of a mob and fled secretly in
the night after Comfort Tyler had declared his purpose not to resist
constituted authorities.

Now, said Mr. Botts, the proposition of the opposing side was that
these were acts of war, that they were intended first against the
people of Wood County, Virginia, in which the island was situated, and
then against New Orleans.

He would suppose first that the acts were against Wood County. Very
well, then, the boats, the oars, the provisions for a long journey, the
after-descent of the river were overt acts of levying war against Wood
County.

“But, Sir, the party was armed!” he exclaimed, imitating the manner
of the prosecution. Why? Mr. Botts contended that it showed they were
expecting the people of Wood County would attack them. In other words
Mr. Botts apprehended that the people of Wood County meditated war on
the people of the island, not that the islanders meditated war against
the people of Wood County.

Then, continued Mr. Botts, it was found that the people of the island
had fled silently in the night from those of Wood County. And because
they fled, it seems they were guilty of acts of war!

On the other hand, said Mr. Botts, pursuing his argument, “if the war
was not against Wood County it was against New Orleans. And New Orleans
was 2200 miles away!”

In the same playful mood, Mr. Botts suggested that the defendant
might claim that these persons had no arms, or if they had guns that
they were not long enough to shoot all the way from the island to New
Orleans. He presumed that the reply the prosecution would make to that
was that no arms were necessary, that they might make war with their
fingers. Or the defendant might urge that persons in this country have
a right to carry arms, that it is also conformable to usage for people
going down the river to kill ducks and other such game.

“The prosecutor,” Mr. Botts presumed, “would answer that arms are not
necessary; that they had three or four guns, a little powder and shot
even to kill fowls and ten or twelve boats; that it was a most bloody
war indeed; that without arms it would be war, but with these arms it
was a most dangerous war against the United States!”

If this was making war against the United States, declared Mr. Botts,
then “If I run away and hide to avoid a beating, I am guilty and may
be convicted of assault and battery!” Here Mr. Botts suggested the
propriety of adjourning.

When Court met next morning and Mr. Botts resumed his argument he was
in the same facetious mood. Once more he went back to the charge of
levying war and recalled the failure of the grand juries in Mississippi
and Kentucky to indict.

“The Mississippi Territory and Kentucky, as we are informed, were
the seat of war,” he observed. “But the simpletons of that State and
Territory hunted but could not find the war. They were so stupid as not
to perceive in a collection of men without arms, without any possible
means of annoyance, without any hostile disposition and without
the possibility of getting away their women and families, anything
criminal, much less any aptitude to overturn two mighty empires.

“It remained for us, the proud members of the Virginia bar, to come out
and astonish the world with the profundity of our learning in matters
of war. They have ascertained that there was a terrible war. I ask you
what manner of war was it? We have had a much more serious war here
than on the island. We have had here a carnage of breaths, sour looks
and hard words and the roaring of vocal cannon. We have had a battle
with the laws and the Constitution fought courageously and furiously by
our enemy.

“Is it not a mockery to speak of the war on Blennerhassett’s Island?
Shall we not be the sport of Europe and the world by such a discussion?”

In spite of the nation’s independence, which it now had enjoyed for a
matter of more than thirty years, the Virginia bar still did obeisance
to that of England. Though Burke had died in 1797 and Charles James
Fox and the younger Pitt had gone to join their fathers within the
year, counsel in the Burr case transferred their veneration to their
successors in Westminster. They seemed to have imagined fatuously that
this spirit of camaraderie was reciprocated and that the great men of
England had temporarily put aside the affairs of empire to follow every
move being made by opposing counsel in the hall of the Virginia House
of Delegates in Richmond.

Now, continued Mr. Botts, Mr. Hay had said that constructive treason
in this country would not be dangerous. Mr. Botts would suppose
an imaginary case. He would suppose there had been well-grounded
apprehension of an approaching war with a neighboring and powerful
nation. He would suppose that the United States had a feeble army in
the neighborhood of the boundary line between the two countries, and
that the American general had orders to fall back. Mr. Botts, be it
noted, was as good at making hypothetical cases for the defense as was
Mr. Wirt for the prosecution.

He would suppose that the populous rich city of New Orleans was in
danger of invasion. He would suppose that a hero distinguished for
military science and valor and as patriotic as he was ambitious of
honorable fame--but whose good name was blighted and blasted by the
malice of his countrymen--should have seen the dangers hanging over his
country: New Orleans threatened with invasion and conquest by a Spanish
force, the citizens there in danger of murder and captivity, their
wives and daughters ready to be a prey to Spanish lust, and all else in
that favored country exposed to desolation.

He would suppose that the hero knew that a band of faithful patriots
could be collected immediately around his standard. He would suppose
that with this band of patriots the hero should at this fortunate and
critical moment have rescued the country, the army, the people, by
a reasonable relief to the decrepit and half baffled forces of the
United States. He would suppose that in the same magnanimous spirit the
hero should after this have gone on his enterprise to establish the
independence of the Mexicans and give liberty to millions now groaning
under bondage.

Suppose he had done all this: he would have acquired immortal glory and
be renowned in future ages as the deliverer of his country, worshiped
as its idol and called its savior as Washington was.

Thus Mr. Botts artfully contrived to present the character of Aaron
Burr as his defenders chose to imagine it. The defense scored the
prosecution for trying to introduce constructive treason into the
United States. It did not object to introducing constructive heroism,
provided the hero was Colonel Burr. The Colonel laughed at William
Wirt’s extravagant language. Is it not possible that he stifled a
cynical smile as he heard himself thus being glorified by young Botts?

Mr. Botts’s supposing ended, he next described in heart-rending
language the manner in which the well-meaning and patriotic Colonel had
been basely betrayed and thwarted. In what some might have considered
not too good taste he recalled that Christ himself had been abused,
mocked, and spit upon. Why then should not a mere mortal man be in like
manner abused?

The young champion next raised his lance against the President of the
United States. He charged that Mr. Jefferson’s interference with the
prosecution of the case was improper, illegal, and unconstitutional.
He had no doubt, he said, that the President had acted from good
intentions, without sufficiently reflecting on the subject, and that
he was inadvertently following one of the very worst English examples
in the most arbitrary reigns. He wished Mr. Jefferson could be at his
side now to hear what could be said on the subject. Young Mr. Botts was
sufficiently sure of his powers of persuasion to believe that under
those circumstances Mr. Jefferson would be convinced that he had done
wrong.

Then Mr. Botts came to his concluding peroration. “We are told,” he
said, “that the virtue of the people will do everything; that the voice
of the people must be heard and must decide where they are sovereign;
that the voice of the people is the voice of God; and that a majority
of the people must always do right....

“I hope the gentlemen ... will not refer the fate of individuals
accused to the sudden and violent impulse of their feelings and
passions.... There are cases where individuals have been sacrificed
by the voice of the people. Socrates was made to drink the hemlock,
and Aristides was banished by the people.... Admiral Byng was made
to die for the same cause. Jefferson was run down in the year 1780
by the voice of the people.” Mr. Botts’s reference here was to the
unpopularity of Mr. Jefferson during the Revolution when he was
Governor of Virginia and the state was invaded by the British and
complaints of Mr. Jefferson’s ineffectiveness in meeting the crisis
raised murmurs for his impeachment.

After that Mr. Botts was back again appealing to Holy Writ to drive
home his point: “Reformation and Christianity itself prove the general
errors subject to pervade the people. Jesus Christ himself was
crucified by the people.”

On this sacred note Mr. Botts closed his discourse. He had proved
himself to be as entertaining as any of his elder brethren of the bar.

The industrious Mr. Robertson rendered yeoman service in recording
the lengthy and often tedious proceedings. Even he was beginning to
tire. He concluded it was not necessary to set down all that was
said. Instead he contented himself with making the entry, “here some
facetious and pleasant remarks passed between Mr. Botts and Mr. MacRae;
which afforded amusement for the moment, but are omitted as irrelevant
to the report.” Irrelevant? Who knows but that if Mr. Robertson had
recorded the facetious and pleasant remarks that Mr. MacRae made in his
exchange with Mr. Botts, Mr. MacRae might have been spared the ignominy
of going down to posterity as a sour Scotsman.

Soon after there appeared the entry: “Here a desultory conversation
ensued between Mr. Botts and Mr. Wirt in which some warm and animated
observations were made respecting the evidence, and Mr. Wirt’s comments
thereon.” Had Mr. Botts’s ridicule got under Mr. Wirt’s skin? At this
point the Chief Justice poured oil on the troubled waters by remarking
that the evidence was such that different gentlemen might draw
different inferences from it.

After Botts came the District Attorney’s turn again. “I cannot,” he
confessed with his customary modesty, “instruct you by my learning,
amuse you by my wit, make you laugh by my drollery nor delight you with
my eloquence. All I can do is to express to you in plain language the
convictions perhaps of a mistaken judgment.” Here was no mock humility,
but the sincere outpouring of a spirit oppressed by the knowledge
that among his colleagues of the Richmond bar he was labeled as a
mediocrity. Hay would have been even duller of wit than public opinion
made him out to be if he had not noted the special consideration
assigned to such of his contemporaries as Wickham, Botts, and Wirt.
He could have consoled himself with the reflection that in such an
assemblage humility was a rare and welcome virtue.

Mr. Hay had no sooner fairly begun on his discourse than he made an
allusion to Justice Samuel Chase and his conduct in the Fries case
in which he had strained the law to convict for the Government. The
censure the judge brought on himself, observed Mr. Hay, was not on
account of his opinions but for his arbitrary and irregular conduct at
the trial. Chase, he reminded, attempted to wrest the decision from
the jury and prejudge the case before hearing all the evidence in it.
It was, said Mr. Hay, the identical thing this Court was being called
on to do by the gentlemen of the defense. At this the gentlemen of the
defense pricked up their ears. Mr. Hay was to hear from them later.

The remark about Justice Chase was preliminary to a dissertation on
the institution of trial by jury. “If,” Hay averred, “it ever shall
be determined by this Court that it has it in its power to take the
decision of facts from the jury, the trial by jury, one of the greatest
bulwarks of civil liberty, may be struck down and destroyed.”

The great question at issue in this case, he said, was compounded of
law and of fact, of which latter the jury were the judges. Therefore
every allegation which related to the indictment, all the evidence
relating to and bearing on the issue, ought to be brought forward and
heard by the jury. The prosecution held that Colonel Burr was guilty of
levying war against the United States. Colonel Burr said he was not.
The evidence the defense sought to exclude bore directly on the point
at issue. Mr. Hay expressed himself as positive the framers of the
Constitution never intended to take the decision of the general issue
in a criminal case away from the consideration of the jury and give it
to the judge.

The speaker paused for an impressive moment and then, selecting his
words with care, addressed the bench: “I consider this principle of
the trial by jury, preserved in its uttermost purity and independence,
as connected with the best principles of the human heart. It ought to
be viewed and approached with the utmost reverence and caution; and
when a judge is called to do what may lead him to encroach on this
principle, he will advance with the utmost circumspection and awe. I
will take the liberty to say that it will be far more safe and correct
to remain a thousand miles on this side of the line which separates
the rights of the Jury from those of the Court, than to go a hair’s
breadth beyond it; and if he should encroach he ought for no human
consideration to touch it. If ever he do, he undermines civil liberty.”
That short dissertation on trial by jury must have made some of those
present wonder if they had misjudged when they wrote George Hay off as
a mediocrity.

The District Attorney returned to the old question of whether actual
presence of the accused at the scene of the overt act was necessary to
sustain a charge of treason. Suppose, he said, Colonel Burr had never
been on the spot where the overt act was committed. Suppose he knew his
men were there and about to be attacked. Suppose he sent more men there
to help them, along with arms, ammunition, and provisions and all other
things necessary for their defense. Suppose an attack was made and
repelled and thousands fell in the battle. Would it be contended by the
gentlemen of the defense that Aaron Burr, not having been personally
present when this overt act of his procurement was committed, was not
a principal but an accessory? That his soldiers were principals in
treason, but he was not? To prove the fallacy Mr. Hay proposed that
they look at the result. He is innocent and safe. They are guilty and
punished.

“Is it possible,” he asked, “that the human mind can be so perplexed
by learning and so misled by ingenuity, so totally bereaved of all its
powers, as to adopt a conclusion like this?”

Mr. Hay closed his argument by reverting to Mr. Wickham’s expressed
fear that the doctrine the prosecution asked the Court to sanction
would be fatal to the liberty and happiness of the people of the
United States. He pictured Mr. Wickham trembling for his country,
himself, and his posterity lest the prosecution succeed.

“I too am a citizen of this country,” he declared, “and the father of
children for whose happiness and welfare I feel a solicitude as lively
and affectionate as any parent can feel. To the true happiness of my
country I hope I know that I am sincerely and ardently attached. But
I see no danger. I apprehend none for myself or my posterity. I am
perfectly willing to risk my own life, liberty and happiness, and those
of my posterity on the propriety of the principles which we recommend.
Let them avoid traitorous conspiracies and designs fatal to the liberty
and happiness of their fellow citizens; let them avoid traitorous
assemblies, overt acts of war, and they will be safe.”

Thus concluded Mr. Hay. Next on the list of pleaders was Luther Martin,
but he sent word to the Court that he was not ready. So Mr. Charles
Lee, of the defense, arose to fill the breech. It was one of the rare
occasions when he was recorded as having spoken.

Counsel for the defense had been waiting impatiently for a chance to
pounce on the District Attorney from the moment he brought up Justice
Chase and the Fries case. Now Mr. Lee had that agreeable opportunity.

“The gentleman said in substance there was no difference between the
opinion which we desire you to give and that for which Judge Chase was
impeached,” charged Mr. Lee, addressing the Chief Justice. “It was very
kind of the gentleman to remind the Court of the danger of a decision
of the motion in favor of the prisoner, a decision like that which has
already produced the impeachment of another judge.”

Mr. Lee knew full well he was touching a tender spot. By thus accusing
the District Attorney he was acting on the popular belief among Judge
Marshall’s friends that the Chief Justice was himself as much on trial
as was the prisoner at the bar. Mr. Hay was prompt to do what he could
to counteract that impression.

“The cases are different,” he replied. “What I said was only said to
put Mr. Botts right in his misrepresentation. It was innocently said
and compatible with the highest respect for the Court, not with the
design which the gentleman (I will not say candidly) insinuates.”

Here the Chief Justice intervened. “I did not consider you as making
any personal allusion, but as merely referring to the law,” he assured
Mr. Hay. Thus, with an exhibition of his customary common sense, Judge
Marshall graciously accepted Mr. Hay’s explanation, whatever his
innermost thoughts might have been.

Mr. Lee, however, persisted. “The gentleman plainly insinuated the
possibility of danger to the Court from a favorable opinion to the
prisoner,” he protested, “because he said that the opinion which
we claimed for him was the same in substance as had occasioned the
impeachment of one judge already. It certainly would not be unfair to
infer that it was intended to show that the same cause might again
produce the same effect.”

Colonel Burr’s urgent request that the trial be expedited seemed doomed
to failure. Mr. Lee, having been less long-winded than his colleagues,
completed his argument some time before the hour of adjournment. The
proposal was made to send a messenger to summon Mr. Martin whose
appearance was next on the agenda. But the lawyers of the defense who
were present declined to do so, stating again that Mr. Martin was not
yet ready. The Court therefore adjourned for the day.

It was not until Friday morning, August 28, that Mr. Martin at last
made his entry and rose to address the Court. In speech and appearance
he was coarse and crude. Toward his enemies he could be vindictive,
as he already had shown in the previous proceedings of the trial. His
emotions were as violently stirred in behalf of those he called his
friends. On the other hand no one surpassed him in his knowledge of the
law and in the application of that knowledge to whatever case he might
be pleading.

At the moment Colonel Burr enjoyed his complete loyalty. And since his
introduction to her a few weeks before he had developed a consuming
admiration for Theodosia Alston. Now came the supreme opportunity to
serve them both.

Mr. Martin opened his address with an expression of regret that the
artifices and persecutions of his enemies had placed Colonel Burr in
his present predicament. But, he continued: “I shall ever feel the
sincerest gratitude to Heaven, that my life has been preserved to this
time, and that I am enabled to appear before this Court in his defense.

“And if the efforts of these highly respectable and eminent gentlemen
with whom I have the honor to be associated, united with my feeble aid,
be successful in rescuing a gentleman for whom I with pleasure avow my
friendship and esteem, from the fangs of his persecutors--if our joint
efforts shall be successful in wiping away the tears of filial piety,
in healing the deep wounds inflicted on the breast of the child, by
the envenomed shafts of hatred and malice hurled at the heart of the
father--if our efforts shall succeed in preserving youth, innocence,
elegance and merit from despair, from distraction--it will be to me
the greatest pleasure. What dear delight will my heart enjoy. How
ineffable, how supreme will be my blessing.”

The solicitude of the elderly gentleman for the prisoner’s daughter
was not lost on his audience. The old and kindly disposed no doubt
heard them and were touched. The young and cynical were amused that the
old man’s infatuation for the beautiful young matron was capable of
producing such eloquence. It was one of the current jokes of the town.

However, pursued the speaker, private friendship for the accused and
his connections was not his only inducement. He was as well thankful
to Heaven that when a question as to the right construction of the
principles of treason was to be decided--on which the happiness or
misery of the present and future ages depended--he was to have an
opportunity to exert to the utmost his feeble talents in opposing
principles which he considered so destructive as those advanced on the
present occasion. If he and his colleagues, said Mr. Martin, were able
to satisfy the Court that the principles the reverse of those contended
for on the part of the prosecution ought to be established, he would
think he had not lived in vain.

Mr. Martin took pains to make it clear that neither Colonel Burr nor
his counsel had ever admitted or suggested that Harman Blennerhassett
was guilty of treason. What then was the propriety of Mr. Wirt saying
that they were willing to sacrifice him, and that he might be hanged
without pity or remorse on their part?

Mr. Martin then brought to bear all the wisdom acquired during his
thirty-six years at the bar. He referred to Hale and Hawkins. He
recalled the Statute of 39 Elizabeth Cap. 15, wherein A and B both
consented to enter a house to rob and only A entered and B stood by,
wherefore A was “ousted of his clergy” while B still had it. He cited
the case of Pudsey in 1 Hale 534 to show how it came within the general
principles of the cases of constructive presence as stated in Foster
349.

He, too, mentioned the case of My Lord Dacre who came with a band of
men to steal deer in the park of one Pelham. And he noted that Hawkins,
in his second volume, Chapter 9, section viii, page 442, also explained
very clearly the principle of constructive presence. He admitted that
in Great Britain there was a species of treason which consisted in the
intention without any act consummating the guilt of treason. He meant,
of course, compassing the death of the king when the crime was only
imagined. But in America, since there was no king, there were only two
species of treason, which were levying war against the United States or
adhering to their enemies, giving them aid and comfort.

“Sir,” he exclaimed, “I execrate a contrary doctrine as highly
tyrannical and oppressive. And here I beg leave to enter my censure
against the decisions of the court in Pennsylvania on this subject
in the cases of what are called the Whiskey and the Hot Water
Insurrections.”

Having thus abruptly paid his compliments to the American judges with
whose decisions he differed he went back across the sea to England and
John Wedderbourn’s case and Deacon’s case and that of the king versus
Captain Vaughan, who went aboard a vessel called the _Loyal Clencartie_
in the service of the French king to cruise against the subjects of
the English king. As he expounded the law in this masterly fashion how
could he have failed to bring a blush to the cheek of Mr. Ritchie of
the _Enquirer_ who had used his columns to belittle Luther Martin and
scoff at the absurdity of importing a Maryland lawyer to try a case in
a Virginia court.

It was gossiped that during the preparation for his appearance Mr.
Martin had drunk even more freely than was his usual custom. If so the
indulgence had done nothing to befuddle his brain or dim his memory of
precedents. Next he turned to the incident of Lord Balmerino entering
the gates of Carlisle and holding the city for the Pretender. He cited
other allegedly treasonable acts having to do with the efforts of the
Stuarts to regain their throne. This was a fruitful field for English
precedents for acts of treason. But, he contended, those who had levied
war in Perth were charged with levying it in Perth. So, too, were those
who levied war in Aberdeen charged with levying it in Aberdeen. He
could find no case in which a person was charged with levying war in a
place where he was not present.

“But,” he observed, “if the counsel for the Crown in Great Britain had
found out this new doctrine discovered by the ingenuity of the counsel
for this prosecution, prosecutions would have been easily conducted and
much trouble saved. If this new doctrine be as the gentlemen effect to
believe, unanswerably correct, then it shows incontrovertibly great
ignorance on the part of the lawyers who prosecuted in Great Britain
in encountering so much unnecessary trouble and adopting a mode of
prosecution so difficult as they did, and the superior ingenuity of the
gentlemen in discovering this very easy and plain mode.”

Then Mr. Martin was off after Nicholas Throgmorton, following his case
with allusions to the cases of Alice Lisle and Mary Speke, who were
so despitefully treated by Judge Jefferies of the Bloody Assizes. He
delved into the eighteenth year of the reign of King Edward I to bring
forth the case of Bago de Clare to whose house one John Wallis, a
clerk, brought a letter of citation from the Archbishop of Canterbury,
and some of de Clare’s family forced Wallis to eat the process and wax
seal affixed thereto. And de Clare pleaded that he was not required to
answer the suit brought against him until the principal actors had been
convicted. So he was released on bail to answer after the principals
had been convicted. From which incident, which had happened more than
five centuries before, Mr. Martin sought to prove that in the State of
Virginia in the year of Our Lord 1807, Colonel Burr could not legally
be brought to trial until Harman Blennerhassett had been tried and
convicted. If Mr. Botts’s allusion to the Crucifixion and Mr. MacRae’s
use of Uriah’s death through the connivance of David are excepted, Mr.
Martin deserved the prize for going farthest back into history for a
precedent.

The speaker had occupied the time of the Court for the entire day and
the hour was growing late. When asked if he could finish his argument
that evening he replied that he could not. So the Court was adjourned
until the usual hour on the morrow and judge, jury, learned counsel,
prisoner, witnesses, and spectators drew a sigh of relief and went off
to refresh themselves and enjoy as much of a night’s rest as the hot,
humid atmosphere permitted.

When Court reconvened on Saturday morning, August 29, Mr. Martin
resumed his argument. Here he gave his attention to the opinion in the
case of Bollman and Swartwout. He brought out that when the opinion
was given only four of the seven judges of the Supreme Court were
sitting. Would four judges in an extrajudicial manner have undertaken
to settle the construction of the law so infinitely important to the
United States? Would they have decided so important a question in a
collateral, irregular manner on a point not immediately before them?
And that also without the aid of the other three judges?

Even if they had done so, contended Mr. Martin, their decision
“certainly deserves no credit as binding on this Court. As a binding
judicial opinion it ought to have no more weight than the ballad or
song of Chevy Chase.”

Mr. Martin alluded to Mr. Hay’s statement “with great zeal and pathos,
that he pledged his own and the life of his children and posterity, on
the propriety of the doctrine which he has advocated: that, if they
avoid conspiracies, that if they be innocent, they will be safe.”

“A most delusive doctrine,” he exclaimed. And he warned Mr. Hay: “If
he be now in the full tide of successful experiment, in the enjoyment
of the approbation of his country and his government, so was, not long
ago, the gentleman whom I advocate. He was as highly distinguished by
the kind favor of the people as he could be by their suffrages.

“It was then incredible that their favor should so soon be changed
to calumny and rancor of party into the most malignant hatred. The
gentleman may now think himself perfectly safe, by the prevalence of
his party and his principles; but the day very possibly may come when
he may find himself as obnoxious as the gentleman whom I defend.

“He may possibly by the same means, the malice, the injustice and
violence of party spirit, like my client, not only find himself reviled
and calumniated, but his dearest friends abused and persecuted. I
should be sorry that such a prediction should be realized with respect
to any gentleman; but, such are the natural consequences of his own
pernicious doctrine, and those we oppose.”

And now the speaker arrived at the end of his argument. Those of the
assemblage whose minds may have wandered now and then in the course of
Mr. Martin’s exposition of the technicalities of the law were brought
to attention by the solemnity of his countenance and the careful
weighing of his words:

“When the sun mildly shines upon us, when the gentle zephyrs play
around us, we can easily proceed forward in the straight path of our
duty. But when the bleak clouds enshroud the sky with darkness, when
the tempest rages, the winds howl and the waves break over us--when the
thunders awfully roar over our heads and the lightnings of heaven blaze
around us--it is then that all the energies of the human soul are
called into action.

“It is then that the truly brave man stands firm at his post. It is
then that by an unshaken performance of duty man approaches the nearest
possible to the Divinity. Nor is there any object in the creation on
which the Supreme Being can look down with more delight and approbation
than on a human being in such a situation and thus acting.”

The speaker turned to look straight into the eyes of the Chief Justice
as he continued: “May that God who now looks down upon us, who has
in his infinite wisdom called you into existence and placed you in
that seat to dispose justice to your fellow citizens, to preserve and
protect innocence against persecution--may that God so illuminate your
understanding that you may know what is right; and may he nerve your
soul with firmness and fortitude to act according to that knowledge.”

So saying, Mr. Martin shuffled over to his seat. It is a safe
assumption that the Chief Justice was not a little moved.

There were souvenir hunters even in those early days. In the _Gazette
and General Advertiser_, organ of Richmond’s Federalists, on the
morning of August 31 appeared this advertisement:

  The Gentleman--who while I was on Sat. last addressing the court,
  TOOK MY CANE from the seat behind me and carried it away--is
  respectfully requested to send it when he has done with it, to
  the Bar of the Swan Tavern. Luther Martin.

It hardly required a public notice to let people know where Mr. Martin
in his moments of relaxation was most likely to be found.

_Chapter_ XVIII

One of the principals who failed to hear Luther Martin’s masterly
argument was Harman Blennerhassett. He felt unwell on Thursday; on
Friday he awoke with a continuation of his indisposition attended by a
fever which made him so miserable he returned to bed without waiting
for breakfast. In keeping with the prevailing custom he dosed himself
with three or four grains of calomel.

Blennerhassett was a hypochondriac but on this occasion his ailment
was not imaginary. He was a victim of influenza which suddenly struck
Richmond in epidemic form. Next day the news reached him in the
penitentiary that half the families in the town were afflicted. The
disease hit the staff of the _Enquirer_ so hard that it was with the
greatest difficulty that popular organ of public opinion continued
publication.

Kind Mrs. Gamble heard of Blennerhassett’s illness and did what she
could to contribute to his comfort. On Sunday she sent him fruit and
fresh butter and fine calf’s foot jelly nicely chilled in ice. The
same day he was honored by a call from Mr. Martin and was by that time
sufficiently recovered to receive the visitor. Mr. Martin appeared none
the worse for wear as a result of his very strenuous labor in court.
Blennerhassett recommended his brandy as being considered superior and
put a pint tumbler before the Marylander.

No ceremonies retarded the libation. Blennerhassett’s absence from
the court during the time Mr. Martin held the floor was not to deprive
him of the privilege of getting a generous sample of the gentleman’s
eloquence and wisdom. The visit did not exceed thirty-five minutes. Yet
so fluent was the speaker that he delivered an account of an entire
week’s proceedings in the trial. He not only quoted verbatim long
extracts from his own speech but also extracts from the speeches of
other lawyers on both sides of the case.

Mr. Martin also regaled his host with whole columns, from a series
of papers, which he had written under the pen name of Investigator.
He also caricatured Jefferson and gave a history of his acquaintance
with Burr, expatiating on the latter’s virtues and suffering. These
last were not received enthusiastically by Mr. Blennerhassett. At the
moment he happened to be feeling particularly aggrieved over the manner
in which he had been duped by the adventurer. In fact, the laudatory
comments on Burr made by Martin raised the suspicion that he had been
deliberately sent by Burr to restore Blennerhassett’s good humor as
a precaution against the ever-present danger of his turning state’s
evidence.

Among other things Martin expressed the opinion that because Burr had
alleged he expected a war between Spain and the United States his
expedition was lawful. But, countered Blennerhassett, “may not a jury
think Burr did _not_ expect war and find their verdict then on the
confession?”

If Burr supposed that Blennerhassett would be favorably impressed by
Martin he was greatly mistaken. The latter had hardly left his presence
before Blennerhassett sat down and went to work drawing one of those
pen portraits which were so much the vogue at the time among those who
laid any claim to literary talent.

“His manner,” wrote Blennerhassett, “is rude, and his language
ungrammatical, which is cruelly aggravated upon his hearers by the
verbosity and repetitions of his style.... Fancy has been as much
denied to his mind as grace to his person or habits. These are gross,
and incapable of restraint, even on the most solemn public occasions.”

The influenza skipped the Chief Justice. Perhaps it considered it
futile to attempt an assault on his hardy constitution. It was just
as well for, over the weekend, he had strenuous work to do. Court
had adjourned late Saturday afternoon. It was scheduled to reconvene
early Monday morning. In the approximately thirty-six hours between
adjournment and reconvening, it was Judge Marshall’s task to review the
arguments presented, weigh them against each other, and arrive at a
conclusion to be contained in a written opinion. The Judge was taking
no chances. He knew that whatever opinion he might render would be
immediately scanned in Washington and perhaps misconstrued, that any
slip he might make would be used against him.

Sunday was an important day in Richmond when almost everybody went to
church. The Roman Catholics were ministered to by the Abbé du Bois, a
refugee from the French Revolution, who said mass in the courtroom of
the Capitol. Methodists and Baptists were numerous and had their own
churches.

The House of Delegates was the scene of an unusual example of
denominational co-operation between the Episcopalians and the
Presbyterians. The two sects were led respectively by Parson John
Buchanan and Parson John Blair, devoted friends who, in their lighter
moments, discussed philosophy and punned in Latin. Buchanan was a
bachelor and well heeled. Blair had numerous progeny and was hard
pressed to make ends meet. So Parson Buchanan applied his logic to the
practical end of convincing Parson Blair that all of Parson Buchanan’s
fees for marriages, funerals, and the like should by right go to Parson
Blair.

The Presbyterians did not yet have a church and the only Episcopal
church was St. John’s, on a high hill to the east and hard to reach.
The upshot of it was that Episcopalians and Presbyterians worshipped
together in the House of Delegates, with Parson Buchanan and Parson
Blair occupying the pulpit on alternate Sundays.

Whether Sunday, August 30, 1807, was Parson Buchanan’s turn in the
pulpit or Parson Blair’s history does not record. Judge Marshall was
an intimate of both parsons and a devout churchman as well. But it is
unlikely that, with the exacting business in hand, he found time to
attend church that day.

Even with that allowance there was not much time for reflection. A
plausible explanation is that while the lawyers were debating the Chief
Justice was formulating his opinion. This one was to be the longest
in the whole trial and the one containing the most references to the
authorities. It may well be that he made notes of these authorities
cited by the speakers as the argument proceeded.

Did he work by candlelight long into the night? Did he wake up with the
birds and labor during the cool hours of the early morning? Or did he
sit under the trees in his spacious yard during the day, braving the
critical looks of his neighbors as they returned from church? Whatever
the Chief Justice’s method, when court met on Monday morning, August
31, he was ready to deliver his opinion. Counsel, jury, and public in
attendance knew that the crisis in the trial had been reached.

The ever-courteous Marshall made use of his introduction to compliment
counsel on both sides. The motion, he said, had been argued in a manner
worthy of its importance and with an earnestness evincing the strong
conviction felt by opposing counsel that the law was with them.

“A degree of eloquence,” he declared, “seldom displayed on any occasion
has embellished a solidity of argument and a depth of research by which
the court has been greatly aided in forming the opinion it is about to
deliver.”

The Chief Justice restated the issue which was that, the testimony
having shown that the prisoner was not present when the overt act
mentioned in the indictment took place, objection had been raised that
testimony offered to connect him with those who committed the overt act
was totally irrelevant and therefore must be rejected.

His first task was to clarify the confusion arising out of the opinion
in the Bollman and Swartwout case, which already had been brought up
by counsel on both sides. It was said that it was on the basis of that
opinion that the Grand Jury had seen fit to bring in the indictments
for treason. The offending phrase was the one which said: “If a body
of men be actually assembled for the purpose of effecting by force a
treasonable object, all those who perform any part, however minute, or
however remote from the scene of action, and who are actually leaguered
in the general conspiracy, are to be considered as traitors.”

If the phrase meant what it seemed to mean then, surely, the absence
of Colonel Burr from Blennerhassett Island at the time of the alleged
overt act in no way relieved him of his guilt. Was the phrase a mere
_obiter dictum_ or chance remark as the defense maintained, or was it
a formal declaration of the court changing the previous conception of
treason as laid down in the Constitution as the prosecution assumed
it to be? The time had come for the Chief Justice to make known which
interpretation was correct.

He had heard, said Judge Marshall, that his opinion had been construed
to mean that any assemblage whatever for a treasonable purpose, whether
in force or not in force, whether in condition to use violence or not
in that condition, was levying war. It had not been expressly advanced
by the bar, but he understood it had been adopted elsewhere. (Anyone
who was at all conversant with the existing political situation knew
that the interpretation referred to was that of President Jefferson.
It had been adopted by his partisans, and it was because it had gained
such a firm hold that the incidents of Blennerhassett Island, mild
as they were, were assumed by the prosecution to fulfill the Chief
Justice’s definition of an overt act of levying war.)

Judge Marshall pointed out that the court which gave the opinion was
composed of four judges. Of these he said one was sick. He seemed
uncertain as to this judge’s opinion. Three judges were absent.
Therefore, said the Chief Justice, if the three judges who were absent
concurred with the sick judge who was present “and perhaps dissents,”
a majority of the judges might overrule the decision. A critical
observer might have charged that the Chief Justice was falling back
upon a good many suppositions.

What, he asked, was levying war? He had, he said, looked at all the
English authorities and, so far as he could see, levying war meant just
that. The words had received no technical meaning different from their
natural meaning. The assemblage must be a warlike assemblage, carrying
the appearance of force, and in a situation to practice hostility. The
Chief Justice added for good measure that the American judges, so far
as their opinions had been quoted, seemed to go even farther than the
English authorities and require the actual exercise of force.

But, he reminded, it had been said that all these authorities had been
overruled by the decision of the Supreme Court in the case of the
United States versus Bollman and Swartwout. Now it would be expected
that an opinion which was to overrule all former precedents and to
establish a principle never before recognized would be expressed in
plain and explicit terms. Had the intention been to make so material
a change, then the Court ought to have expressly declared that any
assemblage of men whatever who had formed a treasonable design
constituted the fact of levying war. Yet no such declaration was made.

What was more, said the Chief Justice, in the case of Bollman and
Swartwout there was no evidence that even these two men had met for the
purpose of executing a plan. In their case the issue of an assemblage
did not appear. In short, the Chief Justice asserted that general
expressions ought not to be considered as overruling settled principles
without a direct declaration to that effect.

Thus at last the ghost of the opinion in the case of Bollman and
Swartwout was laid by the same hand that had raised him. At least the
Chief Justice must have hoped so. It was not often that his rare gift
of logical reasoning was put to so severe a test. By this time counsel
for the prosecution must have seen how the wind was blowing, if they
had ever harbored any doubts about it.

The Chief Justice now got to the nub of his opinion. It was essential,
he said, that an indictment be explicit as to the nature of the crime
and the place where it was committed. Otherwise the accused would not
know how to defend himself. The whole treason laid in the indictment
was the levying of war on Blennerhassett Island and the whole question
was whether the prisoner was legally present. It was as if no other
overt act ever had existed. Therefore, said Judge Marshall, the only
point the Court was examining was the constructive presence of the
prisoner at the fact charged.

Now, said he, had Burr arrived on the island he would have been present
in fact. Or, had he taken a position near enough to co-operate with
those on the island, the question of whether he was constructively
present would be a compound of law and fact which the jury would decide
with the assistance of the Court as respected the law.

On the other hand, if the prisoner was not with the party at the time,
did not intend to join it, and if his co-operation was at a great
distance, in fact in a different state, then he was not constructively
present. Therefore the Judge confessed that he was strongly of the
opinion that proof of the actual or legal presence of the prisoner on
the island by the evidence of two witnesses could not be made.

But, continued the Judge, the prosecution might contend that the
indictment did not charge the prisoner with actually being present
at the assemblage on the island, but that though he was not at it
he caused it. If the law was as the prosecution maintained then
the procurement of the assemblage took the place of presence at
the assemblage. In that case, he insisted, under the Constitution
procurement of an assemblage should be testified to by two witnesses
just like presence at an overt act.

Judge Marshall pointed out that, because the advising of treason or
the procuring of treason was a secret matter of the mind rather than
an actual deed, it might be objected that it would be hard to prove.
But, he retorted, the mere difficulty of proving a fact surely did not
justify a conviction without proof.

Was the testimony the Government proposed to offer to prove the
overt act laid in the indictment? No, it was evidence of subsequent
transactions at a different place and in a different state. Such
testimony, he declared, was not relevant. It could be produced only as
corroborative or confirmatory testimony, if it could be produced at all.

The Chief Justice had now dealt with the decision in the Bollman and
Swartwout case and made it clear that it had not been intended to serve
as a new rule of law introducing constructive treason into the United
States. He had followed that up by showing that neither Colonel Burr’s
actual presence nor legal presence on the island at the time of the
overt act had been proved. This done he was coming to the end of his
opinion. The words he was about to speak had evidently been carefully
chosen. He must have been aware of the solemnity of the moment even
though he may not have foreseen that he was speaking for posterity as
he began:

“Much has been said in the course of the argument on points on which
the Court feels no inclination to comment particularly; but which may,
perhaps not improperly, receive some notice.

“That this Court dares not usurp power is most true.

“That this Court dares not shrink from its duty is not less true.

“No man is desirous of becoming the peculiar subject of calumny. No
man, might he let the cup pass from him without self reproach, would
drain it to the bottom.

“But he has no choice in the case, if there be no alternative presented
to him but a dereliction of duty or the opprobrium of those who are
denominated the world, he merits contempt as well as the indignation of
his country, who can hesitate which to embrace.”

There spoke the soldier of the American Revolution. Not all the power
that could be exerted by the presidential office, not all the threats
of public violence nor the prospect of public scorn could frighten
John Marshall from doing his duty as he saw it. If Aaron Burr was to be
found guilty of treason it would be only after he had been granted all
the protection that was due him under the Constitution and the laws of
the land.

If that be an undue encroachment of the Judiciary on the powers of the
Executive and the Legislature, let Mr. Jefferson make the most of it!

“The result of the whole,” concluded Judge Marshall, returning to his
customary calm, judicial language, “is a conviction as complete as the
mind of the Court is capable of receiving on a complex subject, that
the motion must prevail.”

He observed that the jury had heard the opinion of the Court on the law
of the case. They would now apply that law to the fact and would find a
verdict of guilty or not guilty as their conscience might dictate.

Although the great probability of an opinion ruling out the rest of
the evidence must have been foreseen by the prosecution, Mr. Hay was
momentarily confused as to how next to proceed. So, as soon as the
Chief Justice had concluded his remarks to the jury, the District
Attorney requested that the Court grant him time to consider it. Judge
Marshall readily agreed and an adjournment was taken until the morrow.

Whatever courses the counsel for the prosecution may have discussed
among themselves during the evening they came upon no plan to counter
the opinion of the Chief Justice. So, when the Court met next day, Mr.
Hay announced that he had nothing to offer the jury either of evidence
or argument and must, therefore, leave the case to it.

At the order of the Chief Justice the jury then retired. The assemblage
was not kept long in suspense. Soon the jury was on its way back to
the courtroom led by its foreman, Colonel Carrington. Asked by Judge
Marshall if a verdict had been reached, the Colonel arose and replied:
“We of the jury say that Aaron Burr is not proved to be guilty under
this indictment by any evidence submitted to us. We therefore find him
not guilty.”

Not guilty “by any evidence submitted to us.” Did the jury then mean to
imply that had some of the evidence not been withheld under the motion
made by the defense and sustained by the Chief Justice, it would have
found Aaron Burr guilty? Would that not be the impression made on the
public? If such an impression were made on the public could the verdict
then be regarded as an exoneration?

Colonel Burr did not think so. He was on his feet at once protesting
and he was supported in his protest by other counsel for the defense.
The Colonel called the verdict unusual, informal and irregular. He
demanded that the objectionable qualification be stricken out.

Luther Martin called it a tempest in a teapot. Colonel Carrington
interposed to say that if the objections to the offending passage were
continued the jury would strike it out. He was immediately contradicted
by his fellow juryman Richard E. Parker, an ardent Jeffersonian, who
shouted that it had been inserted deliberately and that it would stay
there.

Judge Marshall listened patiently throughout the controversy and
compromised the issue by stating that, in the opinion of the Court, the
verdict was in effect the same as a verdict for acquittal. He would
therefore let it stand in the bill as the jury had pronounced it. The
entry made on the record would be simply, “Not Guilty.”

With his customary courtesy the Chief Justice thanked the jury for its
patient attention during the whole course of the long and tedious trial
and dismissed it. Attorney Hay, recognizing the hopelessness of getting
a verdict of treason on the basis of the assemblage on Blennerhassett
Island therefore entered a _nolle prosequi_ to the indictments of
Blennerhassett and the other alleged conspirators. That is to say,
having failed to convict Burr, the Government would drop the charges
against his subordinates. However, Hay asked that they and Burr as well
be still held on charges of treason on the possibility of some other
overt act elsewhere being charged against them. This move was made by
Mr. Hay at the instigation of President Jefferson. Again the Chief
Justice listened patiently through another long argument over the
legal point involved. When it was over he ruled against the request,
pointing out that all of them still had to be tried before the present
Court on a charge of misdemeanor.

Yet another protracted argument arose over the proper bail for Aaron
Burr. His counsel contended that he should give none at all. Now that
the Colonel’s neck was safe it was no longer necessary for the Chief
Justice to make every concession the defense requested. He insisted
upon bail and ordered it set at $5,000. In spite of the defense’s
contention that no one dared perform this favor for Colonel Burr
because of public opinion two sureties at once presented themselves
and, on September 8, Aaron Burr found himself a free man. For nine
weeks he had been under confinement.

This being the sickly season in Washington the President had retired to
Monticello. Postmaster Gideon Grainger had installed a special courier
service between Washington, Richmond, and Monticello and Secretary of
State Madison’s summer home, Montpelier. It was to Monticello that
Hay reported to the President on the Government’s defeat which he
attributed to the unfriendly attitude of Judge Marshall. To show that
this was not his opinion alone he stated that “Wirt, who has hitherto
advocated the integrity of the Chief Justice, now abandons him. This
last opinion has opened his eyes, and he speaks in the strongest terms
of reprobation.”

Jefferson was willing enough to adopt this excuse for the failure of
the prosecution. He replied at once, “Yours of the 1st came to hand
yesterday. The event has been what was evidently intended from the
beginning of the trial; that is to say, not only to clear Burr, but to
prevent the evidence from ever going before the world.

“But this latter must not take place. It is now, therefore, more than
ever indispensable that not a single witness be paid or permitted to
depart until his testimony has been committed to writing....

“These whole proceedings will be laid before Congress, that they may
decide whether the defect has been in the evidence of guilt, or in the
law, or in the application of the law, and that they may provide the
proper remedy for the past and the future.”

There was no doubt as to where the President believed the defect to
lie. Burr had escaped conviction of treason. But in his trial on the
charge of a misdemeanor there was a prospect that the witnesses, who
had been refused opportunity to testify by the Chief Justice, would be
heard.

“Not proved to be guilty by any evidence submitted to us.” The
President in his letter made it clear that Mr. Hay was to be
responsible for seeing that the evidence which had been withheld
reached the eyes and ears of Congress. Then Congress would know where
the defect lay and provide the proper remedy.

The President had abandoned the hunt for Aaron Burr. He was now hot on
the trail of the Chief Justice.

_Chapter_ XIX

An Act of Congress of 1794 provided that if any person should, within
the jurisdiction of the United States, begin or set on foot a military
expedition against the territory of any foreign power with whom the
United States was at peace, he would be guilty of a high misdemeanor.
It was under this statute that Burr, Blennerhassett, and their fellow
conspirators now were to be tried. The specific charge against them was
that they had begun or set on foot an expedition against Mexico, then a
possession of Spain with whom the United States was at peace.

It was the opinion of some people that, in their effort to have Burr
exonerated of the charge of treason, his counsel had virtually admitted
the misdemeanor. Blennerhassett, it will be recalled, criticized one of
Luther Martin’s arguments for just that reason.

In the few days that intervened between the two trials Colonel Burr was
making the most of his new freedom. With the beautiful Theodosia on his
arm he strolled through the town in order to give the Richmond populace
full opportunity to see and admire her. The most serious crisis in her
father’s affairs having passed, she was on the point of returning to
South Carolina with her husband and son.

Blennerhassett too had now been relieved of the ignominy of confinement
behind bars. Released from the penitentiary he went to board in town
while Colonel Burr moved from Luther Martin’s house to the one that
had previously been occupied by the Alstons. It was not long before
Blennerhassett received a visit from the Colonel. According to his own
account he represented distinctly and with firmness that he expected to
be repaid for all the financial losses he had suffered either through
endorsing Burr’s papers or buying supplies for him. And, since he was
no doubt quite aware that such payment was beyond the Colonel’s powers,
he let him know that he intended to hold Alston answerable for any
losses he might have sustained over and above the amount of Alston’s
guarantee by letter.

Both men were the objects of courtesies at the hands of the
fashionable element who composed the Federalist society in Richmond.
Blennerhassett’s interest in music was immediately rewarded by
invitations to meetings of the Harmonic Society. Though at the outset
he could not assist in the program because he had no spectacles, he
was granted an honorary membership for the length of his stay in town.
He found the flutes good, four violins moderately good, and three
excellent singers who performed some charming trios by Dr. Calcott,
inspired by extracts from Ossian. These were new to Blennerhassett’s
ears and, on the whole, he enjoyed himself so much that he stayed
listening to the music until midnight.

The visitor was more fortunate at a meeting of the society a few nights
later. Somebody lent him a pair of spectacles, thus enabling him to
read notes and take part in a symphony and also in a quartet by Pleyel;
but, he lamented, “with less effect than if I had been provided with my
own.”

In fact now that Blennerhassett was free, on Sundays when the Court was
not sitting and in the evenings, he found many opportunities to enjoy
the best Richmond society. He made a special visit to Mrs. Gamble, no
doubt to thank her in person for the calf’s foot jelly and butter she
had sent him while he was in prison. He found her to be “a most amiable
old lady, so fraught with the generous humanity characteristic of her
sex, as to suffer not the connections of her daughters ... to prevent
her expressing not merely a concern for the general hardships we have
suffered, but even to censure the last two days’ proceedings in court.”
The “connections” of her daughters were of course Agnes’s husband,
Governor Cabell, and Elizabeth’s husband William Wirt who, had it not
been for Hay’s _nolle prosequi_, would at that very moment have been
using his eloquence to get Blennerhassett hanged.

Mrs. William Brockenbrough, too, was among the ladies expressing
solicitude for the poor persecuted prisoners. The former mistress of
Tuckahoe and present wife of the rising young banker was, observed
Blennerhassett, the nearest approximation in Richmond to a _savant
bel esprit_. Her reputation for intelligence was, perhaps, somewhat
enhanced in Blennerhassett’s estimation by her insistence that she must
get a copy of “The Querist” to read. The proud author of that series
of articles just then was under the impression that David Robertson,
who had done such a fine job of taking notes on the trial in shorthand,
was going to give them a longer life by including them in the book he
proposed to compile on the trial. In this expectation he proved to be
mistaken. “The Querist” articles were not made a part of Robertson’s
two classic volumes.

After his long years on his island with no settlement closer than
Marietta, Blennerhassett evidently relished the cultivated society that
the capital of the Commonwealth of Virginia provided. He experienced
great delight in the piano performance of a talented young Frenchman.
It lasted two hours and introduced Blennerhassett to the most recent
compositions of Haydn who, at the age of 75 years, was still producing
his melodious music. At another meeting of the Harmonic Society
he enjoyed the company of Mrs. Wickham and of Mrs. Chevallié. It
did not quite compensate for the separation from his wife, but the
Blennerhassetts were not entirely out of touch. “I had this morning,”
he exulted, “a long double letter from my adored wife. Its red seal was
as welcome to my eyes as the evening star to the mariner.”

However, these delightful diversions could not entirely erase the fact
that the Messrs. Burr and Blennerhassett were in Richmond for other
than social affairs. On September 9 the petty jury to hear the case of
misdemeanor against the Colonel was sworn in and the trial of witnesses
commenced. The trial was less than a week old when the same obstacle
presented itself that had halted proceedings in the treason trial.
Defense counsel again objected to what they regarded as quantities of
irrelevant matter in the testimony.

After the issue had been debated at length the Chief Justice again
issued one of his long and learned opinions sustaining the defense’s
objection. The testimony, he ruled, must include only that which showed
the expedition to have been military in nature and designed against the
dominions of Spain. He ruled further that the testimony must deal only
with the acts charged in the indictment and which were alleged to have
occurred within the jurisdiction of the Court.

Again the District Attorney confessed he had presented all the
testimony answering the description of that which the Chief Justice
had ruled to be admissible. So, like the treason trial, that on the
misdemeanor charge came to an abrupt conclusion. It took the jury
not more than half an hour to find Aaron Burr not guilty of a high
misdemeanor. Again, as in the treason trial, on hearing the verdict Mr.
Hay entered a _nolle prosequi_ in the cases of Blennerhassett and the
other accused men.

The defeat of the Government was now well nigh complete. The gallant
Wilkinson, observing the proceedings in Richmond, wrote a letter of
condolence to his chief.

“The disgraceful and dishonorable scenes which have been passing in
review here are drawing to a close,” he lamented. “Burr has just been
acquitted on the trial for misdemeanor and now a motion will be made
for his transmittal to Kentucky, which will go off the same way. The
chief [Marshall] has stepped in too deep to retreat, and indeed, his
enterprise and hardihood almost justify the suspicion that he has been
a party to the conspiracy.” Wilkinson spoke of reforming the Federal
courts and getting rid of a “corrupt judge.”

Mr. Jefferson, in a letter to a friend took his cue from the General,
remarking: “The scenes which have been acting at Richmond are
sufficient to fill us with alarm. We supposed we possessed fixed laws
to guard us equally against treason and oppression; but it now appears
we have no law but the will of the judge.”

Once more it looked as though many of the Government’s witnesses, who
had been gathered together with such great pains and who had been
waiting all these weeks to testify, would go home without being heard.
But Mr. Hay had one more trump card to play. He moved that the alleged
conspirators be committed both on charges of treason and misdemeanor
which might have taken place in Ohio and Mississippi. Through this
motion the Chief Justice found himself transformed into an examining
magistrate. As such he regarded it as essential that all the evidence
be heard. So at last, in spite of the protests of defense counsel, the
Court was thrown open to any and all witnesses the Government chose to
present.

For the most part they were youths and humble folk who had joined the
expedition or had had dealings with the party on Blennerhassett Island.

Edmund P. Dane--the Blennerhassetts had come to his house at Belpré to
buy cider. They had invited him to go on the expedition, assuring him
it was not hostile to the Government and aimed only at settling the
Washita lands.

Israel Miller--he was with the expedition when Burr met it at the mouth
of the Cumberland. He mentioned a few weapons.

“Do they kill ducks and turkeys with bullets?” inquired Mr. MacRae, who
was familiar only with hunting on the eastern coast.

“If the gentleman had ever been in Kentucky,” remarked Burr dryly, “he
would have known that it was considered inglorious there to kill a
squirrel, or even ducks, with anything but bullets.”

James McDowell--he went with the expedition as far as Chickasaw
Bluffs, the present site of Memphis. He saw a few guns with bayonets,
but no boxes of arms. It appeared to him that Burr was in command.
Recalled to the stand, he admitted that after leaving the mouth of the
Cumberland he saw six or seven boxes that were so heavy he could not
lift them.

Stephen S. Welch--he joined the party at the mouth of the Cumberland.
He said the proposition put up to him was settlement of the Washita
lands. Samuel Moxley and Chandler Lindsay, John Mulholland and Hugh
Allen told much the same story.

“Had you any reason to suspect that any of the party meditated
hostility against the United States?” inquired Burr of Allen. “Never,”
Allen replied.

A prize witness for the prosecution was Sergeant Jacob Dunbaugh, a
member of Captain Bissell’s command at Fort Massac when the Burr
expedition passed there. Dunbaugh testified that Burr invited him to
join the expedition and go down the river, for which purpose Captain
Bissell gave him a furlough of twenty days. After the expedition had
left Bayou Pierre he said he saw Colonel Burr and another man go to the
bow of the boat and set to work with an ax, augur, and saw, chopping
and sawing. According to Dunbaugh two bundles of arms tied up with
cords were sunk. On being questioned he estimated the arms at from
forty to forty-three stands. He said he also saw pistols, swords,
blunderbusses, fusees, and tomahawks.

Dunbaugh testified further that, after Captain Bissell had given him
leave to go with the expedition, Colonel Burr had called him into his
cabin and asked him if he could persuade ten or twelve of the best men
in the garrison to go along. He protested that he had repelled any such
suggestion. On further questioning it was brought out that what the
Sergeant meant to convey was that Colonel Burr wanted the men to desert.

The reason for the alleged sinking of the arms was in order to hide
them from the Mississippi authorities when they made a search of the
boats. Dunbaugh said one man had been delegated to take out a hogshead
of potatoes with which to fill an arms box to make it look like a box
of potatoes. The arms, he declared, suspended by cords, were down so
deep that the boat could not get to within fifty yards of the shore.

Dunbaugh’s evidence was the strongest that yet had been given to
show the military aspects of the expedition. But it lost much of its
force when, under cross-examination, the Sergeant confessed that he
had overstayed his twenty-day furlough, had been arrested and found
guilty of desertion and imprisoned, and that he had written to General
Wilkinson promising him that if he were released he would be in New
Orleans in three days, presumably to do the General’s bidding in the
trial.

More impressive because of its source was the evidence of Alexander
Henderson, a respected citizen of Wood County. Mr. Henderson described
a visit from Mr. and Mrs. Blennerhassett who mentioned to him the
advantages to be gained by the West in separating from the Union. The
Blennerhassetts had remained for dinner and after the meal was over
Harman enlarged on the same theme in the presence of Alexander and his
brother John. He told them, said Alexander, that New Orleans was to be
seized, and that artillery to the number of fifty pieces belonging to
the French was to be commandeered.

“Did you understand whether he said anything for Mr. Jefferson?” asked
Mr. Wirt, evidently with an end to refreshing the witness’s memory.
Alexander replied that “Mr. Blennerhassett said that if Mr. Jefferson
was any way impertinent that Colonel Burr would tie him neck and heels
and throw him into the Potomac.”

“What did he say of his means of opposition to the Government?”

“He mentioned,” said Henderson, “that with three pieces of artillery
and 300 sharpshooters he could defend any pass in the Allegheny
Mountains against any force the Government could send.”

The witness testified further that Blennerhassett had shown them two
numbers of “The Querist” and told them he had written them.

“It is remarkable,” observed Mr. Wirt, addressing the Court, “that
Colonel Burr was at the island on the 1st of September and the first
number of ‘The Querist’ is dated the 4th.”

John Graham, Secretary of the Mississippi Territory, who had been
directed by the Government in Washington to investigate Burr’s
activities in the West, was next called to the stand. He told of
his meeting with Blennerhassett who, with his customary gift for
blundering, at first mistook him for a friend of Colonel Burr and
one who was sympathetic with the expedition. Yet he admitted that
Blennerhassett had mentioned the settlement of the Washita lands as
being the object. Furthermore, according to Graham, when he tried
to discourage him from taking part, Blennerhassett replied that the
expedition was legal, that he and Burr were familiar with the law and
knew what they were doing. As for the separation of the western country
from the Union, he and Burr held that it would be beneficial for the
people of the West but realized that they were not yet ready for it.

Saturday, September 26, was a red letter day in the trial since it
brought two colorful figures to the witness stand in the persons of
General Eaton and General Wilkinson. Eaton now was permitted to include
in his testimony that part of his affidavit which Judge Marshall had
forbidden in the treason trial on the ground that it was irrelevant
to the doings on Blennerhassett Island. The evidence was sensational
enough but, having been published in the newspapers throughout the
country months before, it was an old story that had lost most of its
original force.

According to Eaton, in the course of their conversations in Washington
during the winter of 1806, Burr told him that if he could win over
the Marine Corps and secure the interest of Truxtun, Preble, and
Decatur, he would turn Congress out neck and heels, assassinate the
President (or what amounted to that), and declare himself the protector
of an energetic government. Eaton insisted that Burr had used such
expressions as “hang him,” “throw him into the Potomac,” and “send him
to Carter’s Mountain.” Carter’s Mountain was that eminence overlooking
the town of Charlottesville, Virginia, on whose edge lay Monticello.

In response to these boasts Eaton claimed he had observed to Burr that
one solitary word would destroy him. When Burr inquired what the word
was Eaton replied, “Usurper.” Burr, continued Eaton, smiled at the
General’s want of confidence, quoted examples of dictators from ancient
history and, if Eaton’s memory served, mentioned Caesar, Cromwell, and
Bonaparte.

Yet who could believe Eaton, a mere adventurer who had not yet had time
to spend the $10,000 indemnity presented to him by the Government so
shockingly close to his appearance as its witness? Eaton’s blustering
and braggadocio while he was hanging around during the summer waiting
his summons to testify also had created an unfavorable impression
in the town. The story was spread that one disgusted Richmonder had
threatened to kick the Hero of Derne out of a saloon. Nevertheless
Eaton’s account of Burr’s lurid boasts bore an astonishing resemblance
to those the Morgans had claimed Burr had made to them, and those that
Alexander Henderson had charged that Blennerhassett had made to him.

Now at last, when the proceedings were almost through, General
Wilkinson was allowed to give his version of the conspiracy in open
court. It was the story of Samuel Swartwout’s arrival at Wilkinson’s
headquarters at Natchitoches with the cipher letter from Burr, and of
Eric Bollman’s arrival at New Orleans with the duplicate. It provided
a fresh opportunity for the General to present himself to that large
and attentive audience in the role of the savior of his country. But
the cross questioning to which he was subjected by the defense made him
squirm, while the explanations he gave in reply were a major test of
his ingenuity.

Had he made an erasure in the letter? Yes, he had erased the sentence
“yours, postmarked 13th of May, is received.” The sentence was a clear
giveaway that he had been in previous communication with Burr.

“Have you ever sworn that this was a true translation?” asked Mr. Botts.

“No, only substantially so,” was Wilkinson’s reply.

When the questioning drove him into a corner he excused his conduct on
the ground that at the time he had many military duties to perform in
defense of his country and was in a hurry. Besides, he had been upset
by the death of his wife. No doubt there was truth in that for his
devotion to her was universally acknowledged.

Why, Mr. Wickham asked him, had he waited from October 10th, when
Swartwout handed him the cipher letter, until October 21 to notify the
Government? Mr. Wickham’s implication was that he had needed the time
to make up his mind. But the General had a different and plausible
explanation. He said he took that time in order to get out of Swartwout
all the information he could about the conspiracy. Why had he asserted
in his first letter to the President that he did not know the leader?
Wilkinson pleaded that he was not at that time sure since he could not
fully trust what Swartwout told him.

September gave way to October and Wilkinson was still on the stand
being badgered by the defense. Counsel for Colonel Burr were desirous
of linking the General’s high-handed conduct in New Orleans with orders
issued by the Government. This line of questioning brought a protest
from Hay.

“It has been the constant effort of the counsel on the other side
to identify General Wilkinson with the Government,” he charged. “We
have heard of the plundering of post offices, violating of oaths and
prostrating of private rights. Now it is asked if the Government
approved of these acts. Is it proper, is it decorous to pursue this
course?”

“Do you recollect expressing to any person that he would confer
the highest obligation on the Government by seizing Colonel Burr?”
Wilkinson was asked by the defense. The General admitted that he might
have said that since those were his sentiments. His great object, he
declared, was to apprehend Burr and deliver him to the civil power
for trial. The city of Washington was the place he wished to have him
sent. But personal injury to the Colonel had not entered his head. He
recollected a German had come to him and proffered his services to take
the Colonel “dead or alive.”

“I was shocked at the very idea,” declared Wilkinson, “and declined
employing him.”

When Mr. Wickham demanded a letter purported to have been written by
President Jefferson to Wilkinson approving the measures the General had
taken, he set off another argument almost as acrimonious as that which
had attended Burr’s request for the _subpoena duces tecum_.

“These gentlemen, it seems, are carrying on an impeachment against the
President of the United States,” asserted Mr. Wirt, not unmindful of