Chapter X: Part 10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

_Chapter_ XIX

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“These gentlemen, it seems, are carrying on an impeachment against the President of the United States,” asserted Mr. Wirt, not unmindful of the political effect of the charge. “What is their object in demanding this letter? It is no more than vainly to attempt to inculpate the President and to gratify their spleen and their resentment against him. Is that their object? Is Aaron Burr more or less guilty because he [the President] has approved or disapproved the measures of General Wilkinson?”

“They want to ask you,” continued Wirt, pursuing the same line of criticism, “which is the most guilty, Thomas Jefferson or Aaron Burr? Are you, then, trying the President? And even if you were, would you not have him here and give him an opportunity of answering his accusers?”

“It has already been decided in this Court,” retorted Martin, “that the President has no more rights than the man who walks the street in rags. ‘What!’ says the gentleman. ‘Will you then violate the sanctity of private correspondence?’ Sir, when the gentleman made this declaration, I looked at his face to see whether it did not blush with shame, and even burst with blood, at expressing such a sentiment.”

“I hope, Sir,” observed Wirt, “the redness of a man’s face is no evidence of a man’s guilt.” This indirect allusion to Martin’s own physiognomy, red presumably as a result of his addiction to the bottle, was surely not lost on the audience.

The Chief Justice expressed regret that the question of producing the letter had arisen. It was irksome to him, he declared, and it was with considerable reluctance that he must insist on its being produced. He did only what his duty prescribed. However, Judge Marshall concluded, though he did not know what the letter contained he saw no need for it to be read aloud.

Now the tables were turned by the prosecution. They had contended all along that there was nothing in the letter which reflected against the President. So MacRae stated that the prosecution preferred to read the letter to the Court as being “the only way to avert the misrepresentations of its contents.”

No sooner had the argument over this one letter been settled than Wickham was up again demanding that the whole of another letter from the President to Wilkinson be produced. The Chief Justice reminded him that the President had certified his reasons for communicating only certain parts of the letter. He believed that the withheld parts had no application to the present prosecution.

Mr. Martin was on his feet again protesting. He hoped the Court had not definitely decided the point. Once more he displayed his personal animosity toward Mr. Jefferson. “Has not the Court already declared that the President has no more power here than any other man? If this be law, for which gentlemen now contend, God forbid that I should remain a citizen of the United States.

“And is Mr. Jefferson to be the judge of the relevancy of evidence, in a prosecution in which he has taken so active a part against the accused? Mr. Jefferson, Sir, is a man of no legal knowledge. He was of no celebrity as a lawyer before the Revolution, and he has since been so much engaged in political pursuits that he has had time enough to unlearn the little law he ever knew.”

Hay rose to the defense of the President against Martin’s vituperation. “The only end of this conversation is abuse of Mr. Jefferson,” he declared.

“Sir,” retorted Martin, “we shall use Mr. Jefferson so as not to abuse him. Remember that the life and liberty of Colonel Burr are shown to be no longer dependent on Virginians, and therefore I am free from any restraint in declaring what I think.” In this scornful thrust at Virginians might be discerned a reply to Editor Ritchie’s belittlement of the capacity of a certain Maryland lawyer.

It now came General Wilkinson’s turn to take the offensive in explaining his actions in New Orleans by presenting the warning letter dispatched by Andrew Jackson to Governor Claiborne. He also offered a deposition stating that Burr’s stepson, Judge Prevost of New Orleans, had saluted a public officer there and congratulated him on the arrival of General John Adair, of Kentucky, as second in command to Burr. The Chief Justice ruled that it would not be correct to permit the deposition to be read. The episode nevertheless set the stage for another of Wilkinson’s patriotic outbursts. Striking an attitude, he declared: “I was prompted by that pure patriotism which has always influenced my conduct and my character which I trust will never be tarnished. I shall continue to defy the utmost art, fraud, deception and villainy that my enemies can practice toward me.” Never was the General more eloquent than when he was proclaiming his virtue.

The proceedings now and then were enlivened by verbal exchanges between Martin and Wirt. General Wilkinson offered a letter that Mr. Martin had requested the day before. Mr. Martin looked at it and remarked that it was “only an extract.” The General replied that he had no other.

“We take no extracts,” retorted Mr. Martin, returning the paper to Wilkinson.

“Unless it be of molasses,” commented Wirt, sotto voce. At this stage of the trial Blennerhassett noted that Martin was “more in his cups than usual.”

The defense counted heavily on the evidence of a Major James Bruff to discredit Wilkinson. Bruff testified that the General had held out inducements to him to join an expedition against the Spaniards. He stated that on a visit to Washington he had called on both the Secretary of War and the Attorney General and warned them that Wilkinson was acquainted with Burr’s plans and involved in them. According to his story, Secretary of War Dearborn replied that it would be impossible at this point for the Government to discredit Wilkinson.

The Government, however, had foreseen Bruff’s testimony and prepared itself to meet his charges. It had on hand as witnesses Lt. Edmund Pendleton Gaines--the same Gaines who had accepted Burr’s arrest--and a Commodore Shaw. These military gentlemen had traveled to Richmond in the same stagecoach with Bruff and testified that Bruff had announced in their presence that he was going to get even with General Wilkinson. Bruff had recently been sentenced by a court martial. The testimony of Gaines and Shaw supported that of Wilkinson who asserted that Bruff had long borne toward him an implacable hatred.

In replying to Bruff’s testimony Wilkinson artfully contrived to work into his evidence damaging details of Burr’s behavior at their meeting at St. Louis in the autumn of 1805, which hitherto he had been given no opportunity to present. He attributed to Burr a reference to the imbecility of the Government, the prophecy that it would moulder to pieces, and his observation that the people of the western country were ready for revolt.

“To this I recollect replying,” said the General unctuously, “that if he had not profited more by his journey in other respects, he had better have remained at Washington or Philadelphia; for surely, said I, my friend, no person was ever more mistaken. The western people disaffected to the Government! They are bigoted to Jefferson and Democracy.” The General no doubt was not unmindful of how that would sound when the President got around to reading the testimony.

Wilkinson concluded with a parting shot at Major Bruff: “But I can state before you, Sir [addressing the Chief Justice], and before God [turning his eyes up to Heaven and placing his hands over his heart] that this whole narrative is either a vile fabrication or a distortion of fact.” After a whole week of cross-questioning the General’s spirit was unquenched and his flair for histrionics as keen as ever.

During all these tedious proceedings the “culprit” Burr, too, contrived to enjoy himself. Even though he had confessed that he had been duped, Blennerhassett still could not resist the Colonel’s magic charm. The two were constantly in each other’s company. Blennerhassett found Burr as gay as ever and busy speculating on the reorganization of his projects just as though they had never suffered the least interruption. He observed to the Irishman that within six months all their schemes would be remounted. What was more, said the Colonel, they could remodel them in a better mould than formerly since they now had a clearer view of the ground and a more perfect knowledge of men.

Blennerhassett listened in silence while he thought to himself “... time will prove him as incapable in all his future efforts as he has been in the past.”

The day after the jury had declared Burr “not guilty” of a misdemeanor the Colonel celebrated at a dinner party which included Martin, Blennerhassett, and a cousin of Judge Prevost. The dinner itself featured all the delicacies Richmond’s lavish Main Street market afforded and it included also three or four wines.

“Splendid poverty!” Blennerhassett exclaimed.

During the chit-chat after the cloth had been removed a note was handed the Colonel. Blennerhassett, who sat next to him, detected the odor of musk and mentioned it. This was the cue for his host to enliven the company with the story of a flirtation. Blennerhassett gave space to it in his diary “only to convey an idea of the temperament and address which enabled this character on certain occasions, like the snake, to cast his slough, and through age and debauchery, seem to uphold his ascendancy over the sex.”

Yet, in spite of this caustic criticism, Blennerhassett did not cease to marvel at Burr’s ingenuity. He discovered in the Colonel’s possession a complete file of all the depositions made before the Grand Jury. “It must be confessed,” he remarked, “that few other men in his circumstances, could have procured these documents out of the custody of offices filled by his inveterate enemies. I have long been at a loss to imagine the means he used, of which I am not yet fully informed.”

Burr, too, succumbed to the malady which had laid low so many people in Richmond. On one of his visits Blennerhassett found him in bed. He suggested that a doctor be called, to which Burr replied that he had no confidence in the local physicians. Blennerhassett expressed himself as being of the same opinion, unless he excepted Dr. McClurg. This was an unwarranted reflection against some of Richmond’s outstanding members of the medical profession.

Blennerhassett thoughtfully went to a druggist and returned with medicine carefully prepared which he left with the Colonel. When he returned in the evening to see how his patient was faring, Burr confessed that, instead of taking Blennerhassett’s medicine, he had given himself a dose of laudanum. He defended his action on the ground that he felt weak and in need of an opiate.

At one of their meetings Burr confided to Blennerhassett that as soon as the trial was over he proposed to set off immediately for England, there to collect money for his projects.

“In London, no doubt,” commented Blennerhassett bitterly, “he will pledge himself to appropriate every guinea they will advance him to the promotion of such operations on the continent as will best serve the interests of Britain; and if he had not already exposed his duplicity and incapacity in his favorite area of intrigue to Yrujo, he would again as readily promise to advance, with Spanish dollars and Spanish arms, the fortunes of the Spanish minister and his master.”

Toward the close of the trial Blennerhassett had the pleasure of drinking tea and spending the evening at the Chevalliés’. There he met Mrs. David Randolph, formerly the mistress of Moldavia, and the sister of a son-in-law of Jefferson. Moldavia, derived from the names of Molly and David Randolph, was Richmond’s fashionable boarding house. Mrs. Randolph was famous as a provider and the author of a cook book. She, it will be recalled, was credited also with having designed a tin-lined ice chamber for storing perishable foods that was used as model for the first American refrigerator. Blennerhassett found her accomplished, charming in manner, and possessing a masculine mind. He recorded that, in spite of her relationship to the President, “I heard more pungent strictures upon Jefferson’s head and heart ... and she certainly uttered more treason than my wife ever dreamed of, for she ridiculed the experiment of a republic in this country.” No wonder since the President had deprived her husband, a Federalist, of the lucrative post of U.S. Marshal of Virginia.

The last days of the trial were enlivened also by a personal encounter between General Wilkinson and young Sam Swartwout. They ran into each other on a narrow sidewalk and the injured young man shouldered the portly major general off into the street, uniform and all. He followed this insult with a challenge to a duel to which Wilkinson did not reply. He would have no correspondence with traitors, and conspirators, he declared. Swartwout therefore was reduced to publishing in the _Virginia Gazette_ an open letter to the General which read:

“Sir--I could not have supposed that you would have completed the catalogue of your crime by adding to the guilt of treachery, forgery and perjury, the accomplishment of cowardice....

“Having failed in two different attempts to procure an interview with you, such as no gentleman of honor could refuse, I have only to pronounce and publish you to the world as a coward and poltroon.”