Chapter II: Part 2

The President went on to say that when the authorities of Kentucky and Tennessee received the proclamation and learned the true circumstances, they followed the admirable example set them by their sister state of Ohio. The governors of New Orleans and Mississippi also had been alerted. Great alarm had been caused in New Orleans by the exaggerated accounts of Mr. Burr disseminated there.

But, according to the message, the faithful General Wilkinson had arrived on the scene on November 24 and “immediately put into activity the resources of the place for the purpose of its defense.” Great zeal had been shown by the inhabitants generally.

In the present state of the evidence, said the President, some of it delivered under the restriction of private confidence, neither safety nor justice would permit the exposing of names, except that of the principal actor.

Of Burr, he declared, his “_guilt is placed beyond question_.”

Such was the Government’s version of the conspiracy as conveyed by President Jefferson to the Congress. The report was supplemented with various letters and other confirmatory documents. It left no doubt that the conspiracy had been crushed, even though at the time of its writing the “principal actor” was still at large.

Meanwhile the “principal actor,” commanding a small body of men on flatboats, was on his way down the Mississippi River. He had arrived at a place called Cole’s Creek in Mississippi territory when he first learned of the hue and cry raised against him by the President and General Wilkinson. A few days prior to this he had voluntarily surrendered himself to the territorial authorities and, after an inquest like the two earlier ones in Kentucky, he had been dismissed by a grand jury. Instead of indicting Burr the jury rebuked the authorities for their overzealousness in interfering with him and his men.

Burr had nothing to fear from the civil authorities of Mississippi, but the military under Wilkinson’s command were quite a different matter. According to his later testimony Burr imagined his life was in danger. For the first and last time in his life he acted in a manner that suggested cowardice. He deserted his followers. Disguising himself as a backwoodsman he mounted a horse and started his flight. By this time the alarm had been broadcast and everywhere people were on the lookout for him.

It was Nicholas Perkins who, informed of the presence of a mysterious stranger near Wakefield, in Washington County, Alabama, set out to investigate. His keen eye noted that the boots showing below the stranger’s pantaloons were much too fine for any ordinary countryman. Burr, on being challenged, acknowledged his identity and agreed to go with Perkins who turned him over to the military authorities at Fort Stoddart, an army post north of Mobile.

The commander was a young Virginian, Lieutenant Edmund Pendleton Gaines. Gaines engaged Perkins to deliver his prisoner to the Government in Washington. On March 5 the party set out. The first part of the journey, made on horseback, lay through the Cherokee Indian country in Alabama and Georgia. Heavy rain increased the discomfort of the travelers. Burr bore his hardships without a whimper and with but one incident of insubordination. As a lawyer he knew his arrest was highly questionable. South Carolina was the home of his son-in-law where he might perhaps find sympathy. So, while passing through the little settlement of Chester in that state, Burr leaped from his horse and shouted, “I am Aaron Burr, under military arrest, and claim the protection of the civil authorities.” Perkins, with his superior size and strength, calmly took him around the waist, sat him back on his horse, and the party proceeded. Thereafter, Burr traveled in a gig. That is, until the party shifted to a stagecoach shortly before reaching Richmond.

The original destination had been Washington. But at Fredericksburg, Virginia, Perkins received counterinstructions from President Jefferson to deliver his prisoner to the authorities in Richmond. So on their arrival at the Eagle Tavern, Perkins’ task was nearly ended.

That explains why and how a former Vice-President of the United States found himself in the toils of the law. The rumors of conspiracy that had spread throughout the country during the last two years had now been confirmed by the President of the United States. Burr’s guilt, declared that highest authority, was “beyond question.” And, but for the honor of Wilkinson the soldier and the fidelity of Wilkinson the good citizen, who acted in the nick of time, no telling where the country would be. Such was the official version.

No wonder the general public, in the face of the damning evidence, expected the ensuing trial to be a mere formality. No wonder a toast that became universally popular was drunk to “Aaron Burr--may his treachery to his country exalt him to the scaffold, and hemp be his escort to the republic of dust and ashes.”

The gallows might loom before him. Burr surveyed the prospect with his accustomed calm.

_Chapter_ III

When fortune thus rudely delivered Burr at its gates Richmond was a thriving community of over 5,000 souls. Of these from a third to a half were colored slaves. The town, situated on the falls of the James River, enjoyed the distinction of being the seat of government of a commonwealth which, despite the loss of Kentucky, still extended from the Atlantic coast to the Ohio River and included the present West Virginia. It ranked as one of the important cities of the young nation along with Boston, New York, Philadelphia, Baltimore, and Charleston, South Carolina.

Richmonders boasted that their city, like Rome, was built on seven hills. These overlooked the river on the north. The most conspicuous of them was the lofty promontory known as Capitol Hill on which stood the state capitol, an impressive structure with a columned portico facing the river and some hundred or more feet above it. Credit for the design was given to Jefferson who took as his model the Roman temple known as the Maison Carrée at Nismes, France.

Richmond owed its commercial prosperity to being the city in the state farthest inland on navigable water. It was dominated by Scotch merchants who imported manufactured goods from Europe and sold them to their fellow townsmen and the planters nearby. Then they bought from the planters grain and tobacco which they marketed abroad or in the cities to the north, taking a nice profit on each transaction.

The town had been laid out many years before by Col. William Mayo, a friend of the second William Byrd, its founder. The Colonel adopted a checkerboard plan, the streets running east and west paralleling the river, each on a higher level than the other, and intersected at right angles by streets running north and south. The capitol sat in the middle of an open space of several acres known as Capitol Square, whose steep slopes were scarred with unsightly gullies. Behind the capitol the ground leveled off into a plateau whose north side, bearing the name of Shockoe Hill, served as the fashionable residential section of the town.

The Eagle Tavern to which Burr had been conducted stood on Main Street, an east-west thoroughfare at the foot of Capitol Hill occupied chiefly by shops and other business establishments. A trifle less refined than the Swan Tavern at the top of the hill, it catered to a wide variety of guests, including sportsmen, legislators, and planters who came up to Richmond periodically for a brief respite from the monotony of their plantations. The hostelry was identified by a sign, eight feet by five, displaying a golden eagle. This was no ordinary bird. It had been painted by the artist Thomas Sully, who in his later years was to become one of the leading portraitists of his day and to number among his subjects the young Queen Victoria of England. Sully got $50 for the eagle, not an insignificant sum according to 1800 standards of value.

At the tavern Colonel Burr remained under informal arrest over the weekend waiting to be handed over by the military to the civil authorities. The warrant, issued by the Chief Justice of the United States and written in his own hand, was based on the charges of treason against the United States and of a high misdemeanor in preparing a military expedition against the dominions of the King of Spain, with whom the United States was at peace.

In the early days of the Federal judiciary there were no judges of appeal, the appellant functions being performed by the justices of the Supreme Court to each of whom was assigned a circuit. Virginia, in which state Burr’s crimes were alleged to have been committed, lay in the circuit assigned to the Chief Justice. The Judiciary Bill of 1801, rushed through the Congress by the Federalists, provided for appeals judges. But it had been repealed by the Jeffersonians. Thus the presence of Chief Justice Marshall in Richmond on this occasion was attributable to Jefferson’s counterattack on the Federalists, unmindful though he may have been of the particular effect it was going to have on the trial of Aaron Burr.

The formal procedure took place on Monday, March 30. It was a matter of note among the Jeffersonians that the Chief Justice did not order the prisoner to be brought to court but instead went himself to the Eagle Tavern. They saw in this evidence of bias rather than a demonstration of John Marshall’s consideration for a fellow man once exalted and now humbled and reduced.

Over the weekend Colonel Burr had supplied himself with a suit and fresh linen more in keeping with his station as a former Vice-President of the United States than the homely disguise he had worn on making his entry into Richmond. Shortly after mid-day Maj. Joseph Scott, the United States Marshal for the Virginia district, appeared at Burr’s quarters and politely informed him that the time had come for the serving of the warrant. News of Burr’s arrival had spread through the town and attracted a crowd of the curious to the tavern. It was “an awfully silent and attentive assemblage of citizens” that looked on as the Colonel was conducted by Marshal Scott to a retiring room where the Chief Justice was waiting to examine him.

Present in the room with Judge Marshall were Caesar Rodney, newly appointed Attorney General of the United States, and George Hay, the District Attorney, representing the Government; and Edmund Randolph and John Wickham, attorneys for the defense. Present also, in addition to a few subordinates and friends of the accused, was Nicholas Perkins, who had conducted the prisoner from Alabama to Richmond.

Of the principals the youngest man there was Caesar Rodney. He had just turned 35 and was an enthusiastic Jeffersonian who had seen service in the United States House of Representatives. His situation was embarrassing since he had recently been on friendly terms with Burr. Next in order of youth was Hay. Not a brilliant lawyer but a plodder, and a determined one, he had rapidly forged to the front at the local bar. In his rise he had no doubt been assisted by his loyal adherence to Republican ideals. In an atmosphere that laid emphasis on birth it was not overlooked that he was the son of Anthony Hay, keeper of the Raleigh Tavern in Williamsburg. Richmond, however, was producing so many self-made men that while the fact of humble origin may have been noted, and perhaps mentioned privately, it placed no obstacle in the path of those who were on their way up.

In contrast to these rising luminaries was Edmund Randolph, the eldest in the group. Men developed early in those days and though Randolph was only 54 years old he was nearing the close of a distinguished career. He traced his descent from William Randolph of Turkey Island and his wife Mary Isham. In producing worthy descendants these two were to Virginia what Jonathan Edwards was to New England. They produced in quantity as well as quality, and were referred to as the Adam and Eve of Virginia. In the drama that was unfolding in Richmond both prosecution and defense were represented by a rash of their descendants. Proud though he may have been of his heritage, Aaron Burr could not complain that in Richmond he was not largely in the company of his social peers.

At the outbreak of the Revolution, leaving William and Mary College, where he had been an apt student of the law, Randolph through his breeding and ability gravitated to the staff of General Washington. His military service was brief. It soon was apparent that, like Jefferson, his talents were better suited to matters of state than to the battlefield. From the age of 20 he was not out of office during the succeeding 32 years. He served as mayor of Williamsburg, Attorney General of Virginia, member of the Continental Congress, Governor of his state, member of the Constitutional Convention, and Attorney General of the United States in Washington’s Cabinet. Now in the twilight of his career, he was present to add dignity to the defense. As a staunch Federalist he considered it no more than his duty to lend his talents to thwarting the Jeffersonians in their determination to convict Burr.

Ten years junior to Edmund Randolph was his colleague John Wickham. Wickham was something of an outsider to Virginia. Born on Long Island in the colony of New York, the son of Tories, he was educated in France for a military career. He returned home at the outbreak of the Revolution just in time to be arrested by the American patriots, but he was released in the care of a Virginia uncle. At the close of that conflict he gave up the idea of a military career and read law. Now, at the age of 44 years, he was the recognized leader of the Virginia bar.

Hay had measured swords with Wickham in the Richmond courts enough times to recognize that he lacked Wickham’s skill and dexterity. Wickham’s years abroad had endowed him with a sophistication unknown to the average Virginia squire or merchant who traveled little beyond the local frontiers. Tom Moore, the supercilious young Irish poet who paid this country a critical visit at the turn of the century and abused almost everybody from the President down, made an exception of Wickham. He said he was the only gentleman he had discovered during his American travels and that he would grace any court.

Yet in this galaxy of talent the Chief Justice was as usual the dominating figure. His commanding height marked him out. His ruddy, weather-beaten complexion setting off his fine dark eyes, his genial expression suggesting a quiet sense of humor, his obvious indifference to dress, and his loose-jointed awkwardness, all these combined to make a pleasing impression of naturalness and sincerity. He and Colonel Burr were not strangers. They had known each other in Washington when Burr was in the Senate and Marshall in the House. Marshall, too, when Chief Justice, had appeared both as spectator and witness at the Chase trial.

The proceedings at the tavern were brief. Hay had objected to the locale in the first place--it was the strategy of the prosecution to keep popular emotion high by putting on a public spectacle. He consented to the meeting in the tavern only on condition that, if arguments were needed, they would be heard at the Courthouse behind the Capitol.

It was the not unwelcome task of Nicholas Perkins to give a dramatic account of the detection of Colonel Burr under his disguise, his arrest, and the long and tedious journey from Alabama to Richmond. He spoke his piece with evident relish. When he had finished Hay submitted a motion in writing that the prisoner be committed on the charges both of treason and high misdemeanor. Counsel agreed that argument would be necessary. Hay then moved adjournment to the Courthouse and the motion was granted. The Chief Justice released Colonel Burr on bail at $2,500 for his appearance there at 10 A.M. on the morrow. Until then he was free to go about the town as he pleased.

When, next day, at the appointed hour the Chief Justice took his seat on the bench, the courtroom was filled to overflowing while a large crowd outside clamored for admission. It was a half hour after the time set for the hearing when Colonel Burr at last arrived. He apologized for keeping the Court waiting, explaining that he had misapprehended the hour.

Rather than disappoint those who could not find a place in the courtroom, the Chief Justice consented to move the hearing to the great hall of the House of Delegates in the Capitol nearby. This was a shabby chamber, unimpressive except for its size; it could accommodate a large crowd and, before the trial was over, all its space was going to be needed.

It may be imagined that Colonel Burr observed with a critical eye the drabness of the setting. Had he been in charge of the arrangements, as in the trial of Justice Chase, surely he would have ordered things differently. Colored hangings would have cheered up the premises no end and perhaps even some artistic embellishment could have been thought up for the plain sand boxes distributed around the hall at intervals for the convenience of the tobacco chewers. In this austere atmosphere all the proceedings of the trial thereafter were to take place. It was notorious that counsel on both sides, like actors in a play, addressed their remarks to the audience as much as they did to the bench.

Virginia was a big state with a variety of people. Since the crimes with which Colonel Burr was charged were alleged to have taken place on the western frontier, that territory was well represented both with respect to witnesses and spectators. So it was that in the trial room dignified gentlemen with hair powdered in the old style, and dressed in fine ruffled linen, black silk and knee breeches, rubbed shoulders with long-haired frontiersmen in leather hunting shirts and pantaloons.

The argument was opened by Mr. Hay who quoted the act of Congress which made it a high misdemeanor for any person in the United States territory to prepare an expedition against a nation with whom this country was at peace. As evidence of Colonel Burr’s violation of the act he cited a letter written by the prisoner to General Wilkinson.

Hay’s motion also asked that Burr be committed on a charge of treason. He based this request on the Burr letter to Wilkinson, to an affidavit given by the General, and also on an affidavit of one William Eaton. Eaton too bore the title of General, but its authenticity was questioned.

Burr’s letter to Wilkinson had been written in Philadelphia in a cipher previously agreed upon between them. It was dated July 29, 1806, and read:

“Your letter, postmarked 13th May, is received. At length I have obtained funds, and have actually commenced. The eastern detachments from different points, and under different pretences, will rendezvous on the Ohio, 1st of November. Everything internal and external favors our views. Naval protection of England is secured. Truxton [Commodore] is going to Jamaica to arrange with the admiral on that station. It will meet us at the Mississippi. England, a navy of the United States, are ready to join, and final orders are given to my friends and followers.

“It will be a host of choice spirits. Wilkinson shall be second to Burr only, and Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward 1st of August, never to return. With him go his daughter and his grandson. The husband will follow in October, with a corps of worthies. Send forthwith an intelligent friend with whom Burr may confer. He shall return immediately with further interesting details: this is essential to harmony and concert of movement. Send a list of persons known to Wilkinson west of the mountains, who could be useful, with a note delineating their character. By your messenger, send me four or five commissions of your officers, which you can borrow under any pretence you please.

“Already are orders given to the contractor to forward six months’ provision to points Wilkinson may name; this shall not be used until the last moment, and then under proper injunctions. Our project, my dear friend, is brought to a point so long desired. Burr guarantees the result with his life and honor, with the lives, and honor, and the fortunes of hundreds of the best blood of our country.

“Burr’s plan of operation is to move down rapidly from the falls on the 15th of November, with the first five hundred or one thousand men, in light boats now constructing for that purpose, to be at Natchez between the 5th and 15th of December, there to meet you, there to determine whether it will be expedient, in the first instance, to seize on, or pass by, Baton Rouge [then held by the Spaniards]. On receipt of this send Burr an answer. Draw on Burr for all expenses, etc. The people of the country to which we are going are prepared to receive us; their agents, now with Burr, say that if we will protect their religion, and will not subject them to foreign Power, that in three weeks, all will be settled. The gods invite us to glory and fortune: it remains to be seen whether we deserve the boon.

“The bearer of this goes express to you; he will hand a formal letter of introduction to you, from Burr; he is a man of inviolable honor and perfect discretion, formed to execute rather than project, capable of relating facts with fidelity, and incapable of relating them otherwise. He is thoroughly informed of the plans and intentions of ------, and will disclose to you, as far as you inquire, and no further. He has imbibed a reverence for your character, and may be embarrassed in your presence; put him at ease, and he will satisfy you.”

To make doubly sure the letter would reach Wilkinson Burr made two copies of it, one to go overland and the other by sea. Bearer of the overland message was Samuel Swartwout, who will be recalled as Burr’s companion on the trip south following the duel. Bearer of the copy of the letter going by sea was one Dr. Justus Eric Bollman, a German and a soldier of fortune. Bollman was distinguished chiefly for a desperate attempt at rescuing General Lafayette from imprisonment in Austria during the French Revolution.

Swartwout accomplished his mission first, coming up with Wilkinson in camp at Natchitoches in northern Louisiana, where Wilkinson was standing guard against a threatened crossing by the Spaniards of the Sabine River, boundary between Louisiana and the present State of Texas. Bollman presented himself to Wilkinson shortly thereafter in New Orleans.

But, so President Jefferson’s message to Congress declared, the indignant and patriotic Wilkinson, instead of listening to Burr’s blandishments and preparing to take second rank on the treasonable expedition of which the letter treated, sent a warning to Washington, arrested both Swartwout and Bollman, and packed them both off to the capital charged with high misdemeanor and treason. On their arrival in Washington, in order to hold them, William B. Giles, Jefferson’s leader in the Senate, got a bill through that body suspending the writ of habeas corpus. But the House refused to go along. The Chief Justice then issued the writ, heard the charges, and released the two men, declaring that charges had not been proved. The uncooperative behavior of the Chief Justice on this occasion did not improve Mr. Jefferson’s opinion of him.

Equal in importance with Burr’s letter was the affidavit of William Eaton. A Connecticut Yankee, Eaton first appeared on the public scene as a captain in the United States Army. In 1804 he was serving as United States Consul at Tunis. It was a time when the infant United States Navy was waging sporadic warfare with the Barbary States. Commodore Samuel Barron, commanding our Mediterranean fleet, dispatched Eaton on a mission to Alexandria where one Hamet, former Pasha of Tripoli, had taken refuge after being driven from his throne by his elder brother. Eaton’s mission was to restore Hamet to the throne.

Assembling a tatterdemalion force of Greeks, Italians, and Arabs to the number of 500, Eaton led them on a gruelling march across the Libyan desert to Derne. The expedition made the 600 miles in fifty days and on top of it assaulted and captured the city.

But here the United States policy changed. New negotiations led to recognition of the usurping brother. This altered state of affairs caused a break between Barron and Eaton and the latter returned home, indignant over the manner in which he had been treated and demanding from an indifferent Congress remuneration for his services. Through his military exploits he had acquired the title of General, but he held no such commission from the United States Government.

Where a man had a grudge against the Government there repeatedly was found the trail of Burr. So it was in the case of Eaton. In the winter of 1805–06, following Burr’s return from his first trip to the West, he and Eaton lived in the same boarding house in Washington and were much in each other’s company. According to Eaton’s affidavit, Burr told him he was organizing a military expedition against the Spanish provinces on the southwestern frontier, giving him to understand he was acting under the authority of the Federal Government. Eaton recalled that at this time the controversies with Spain and the tenor of the President’s message to Congress led to the conclusion that war with that country was imminent. Having lately returned from Africa, he was unaware, he said, of any suspicions against Burr and did not question his patriotism. This, Eaton explained, was why at first he consented to embark on the enterprise and pledged himself to Colonel Burr’s confidence.

But, Eaton continued, as time passed certain indistinct expressions and innuendoes aroused his suspicions that Burr had other projects in mind. He noted in particular that Burr was critical of the administration, accusing it of want of character, energy, and gratitude. Eaton suspected Burr of arousing his resentment by dilating on the harsh treatment Eaton had received on the floor of Congress in connection with his African expedition, and the delay in adjusting his financial claims against the United States.

By this time, declared Eaton, he had begun to suspect that Burr’s expedition was unlawful, but he had pretended to be impressed in order to draw Burr out. It was then, he said, that Burr laid open his proposal of revolutionizing the territory west of the Alleghenies and establishing an independent empire there. New Orleans, said Eaton, was to be the capital and Burr was to be the chief, organizing a military force on the Mississippi and carrying the conquest to Mexico.

Eaton said he protested that the western people were attached to the present administration and that Burr would be opposed in his designs by the regular army of the United States stationed on the frontier. To this, he said, Burr replied that he had the preceding season made a tour through the country and attached to his person the most distinguished citizens of Tennessee, Kentucky and the Orleans territory; that he had inexhaustible resources and funds; that the United States Army would act with him; that he would be reinforced by from 10,000 to 12,000 men from the aforementioned states and territories; and that he had powerful agents in the Spanish territory.

Eaton said he told Burr he had known Wilkinson during the Revolution and ventured the opinion that he would act as lieutenant to no man in existence. Burr assured him he was wrong and led him to believe that the plan of the revolution had been made in concert with Wilkinson.

The affidavit then mentioned a plan for overthrowing the Government in Washington, assassinating the President, and revolutionizing the eastern states.

Eaton said Burr had given him nothing on paper, nor did he know of anybody to whom Burr had made similar advances. It was, therefore, his word against Burr’s. He did not dare place his testimony in the balance against the weight of Burr’s character, fearing that Burr would turn the tables on him. He was therefore uncertain which way to proceed. He at last decided that the best way to save the country was to get Burr out of it. That was why he approached President Jefferson with a suggestion that Burr be sent abroad as an ambassador. He mentioned Paris, London, or Madrid. The President, according to Eaton, signified that the trust was too important and expressed something like doubt about the integrity of Burr.

Perceiving that the subject was distasteful to the President, said Eaton, and to impress him with the danger, he told him there would be insurrection in the Mississippi area within eighteen months. He quoted the President as replying that he had too much confidence in the integrity and attachment to the Union of the citizens of that country to admit any apprehension of that kind. Such, in substance, was Eaton’s affidavit.

Mr. Wickham was the first lawyer of the defense to open the attack on it. There was, he declared, no evidence of treason in it. As for an attack on the Spanish settlement, if Burr had such an intention it was not only innocent but meritorious. He reminded the court that at that time there were strong circumstances pointing to a war with Spain and he cited the President’s message at the opening of the Ninth Congress in December, 1805, in which the provocations were mentioned.

Wickham was followed by his colleague Randolph who, in a reminiscent mood, stated that though he had long been conversant with criminal jurisprudence, never before had he heard of anybody attempting to prove an overt act of treason from a supposed intention.

Colonel Burr now made clear his intention to act as his own counsel in the trial. Addressing the court he ventured the opinion that there was no cause for all this concern. He charged that Wilkinson had alarmed the President and that the President had alarmed the people. When he, Burr, heard that charges were being preferred against him while he was in the West, had he not voluntarily hastened to meet investigation both in Kentucky and Tennessee? Yes, he had fled later, but only after he had learned that military orders had been issued to seize his person and his property. He protested that there was no proof of his guilt other than the affidavits of Wilkinson and Eaton. As for these they were “abounding in crudities and absurdities.”

Attorney General Rodney next addressed the court. He had, he said, looked upon Colonel Burr as his friend and, in fact, had received him in his house. But now the chain of circumstances showed without doubt that he was guilty. He thought that the evidence presented was sufficient for commitment. It was his contention that for a mere commitment no such complete testimony was needed as in an actual trial. This brief comment from the Attorney General proved to be the last words he was to utter in the case. In a day’s time illness in his family--or such was the excuse given--took him from Richmond and the trial and he did not return. Whatever part he played in it was performed in Washington.

Thereafter the burden of the prosecution fell on the conscientious and hard-working Hay. The District Attorney, too, had had family sorrow. A week before Burr’s arrival in Richmond he lost his wife, Rebecca, a young woman of 25 years. But the bereaved husband had little time for mourning. Nor did he allow his grief to interfere with the performance of his official task with all the effectiveness his limited talents could command.

When the arguments were over Judge Marshall introduced a procedure he was to follow steadfastly throughout the trial. He adjourned court and promised that he would deliver his opinion the following day. He was as good as his word. The opinion was in writing. He had had the evening before in which to review the arguments and from them arrive at his own conclusions. Like all his opinions, this one was closely reasoned and carefully drawn. Nobody was going to be given grounds for charging him with such arbitrary and high-handed behavior on the bench as had brought about the impeachment of Justice Chase. Again a numerous audience was on hand to hear what the Chief Justice had to say.

Judge Marshall quoted Blackstone to the effect that only if it was manifest that no crime had been committed or that the suspicion was wholly groundless would it be lawful to discharge a prisoner. Otherwise he must be committed to prison or released on bail. By that, he continued, he did not mean to say that the “hand of malignity may grasp any individual against whom its hate may be directed.” His audience pricked up their ears, especially those who were anxious to catch the Chief Justice in a false step. Was not the hand of malignity to which he referred that of President Jefferson? It sounded suspiciously like it. One man who put that interpretation on it informed the Chief Justice who, immediately after adjournment, called to the bench those who were reporting the trial and stated explicitly that the observation had no allusion to the Government’s conduct in the case before him.

The Chief Justice’s conclusion was that enough evidence had been presented to warrant a commitment for a high misdemeanor. But a commitment for treason was a different matter. He pointed out that the assembling of forces to levy war was a visible transaction. Numbers must witness it. If, therefore, in November or December last a body of troops had been assembled in Ohio, it was impossible to suppose that affidavits establishing the fact could not have been obtained by the last of March. The evidence that had been given proved the loyalty of the western people to their eastern brethren. How strange then that no man could be found who would voluntarily depose that a body of troops had actually assembled for an object which had been detested by these people. He concluded: “I cannot doubt that means to obtain information have been taken on the part of the prosecution; if it existed, I cannot doubt the practicability of obtaining it; and its non-production, at this late hour, does not, in my opinion, leave me at liberty to give to those suspicions which grow out of other circumstances, the weight to which at an earlier day they might have been entitled. I shall not, therefore, insert in the commitment the charge of high treason.”

On the commitment on the charge of high misdemeanor the Chief Justice set bail at $10,000. Hay thought it too low and said so. Wickham commented that Burr had few friends in Richmond. What is more he had heard several gentlemen of great respectability say they were unwilling to appear as bail for him for fear of being regarded as enemies of their country. The defense was careful to lose no opportunity to emphasize the popular prejudice against their client.

Nevertheless, in spite of Mr. Wickham’s concern, sureties were found and Colonel Burr was released for his appearance at the next meeting of the Court of Appeals for the Virginia District on May 22. In the initial skirmish the prosecution had met with a setback. The prisoner was not to be treated as a man who had tried to destroy the nation and who might still be dangerous if permitted to roam at large.

From the White House the proceedings in Richmond were being closely watched. Details were reported as fast as messengers on horseback could carry dispatches from Attorney Hay to President Jefferson. The President was hardly surprised at the direction events were taking. The Chief Justice had been a thorn in the flesh from the moment Mr. Jefferson took office. His latest ruling was strictly according to form. Well, some day he would overstep the mark. The President must be on the alert to seize the opportunity when that day came.

_Chapter_ IV

To Thomas Jefferson and John Marshall history has assigned positions in the first rank of the nation’s great men. Their backgrounds show a remarkable similarity. Both were Virginians, Jefferson being twelve years senior to Marshall. Both were the sons of frontiersmen, Peter Jefferson having established himself in Albemarle County and Thomas Marshall in Fauquier County, a short distance to the north, when those counties were still outposts of the Virginia colony. Both were tall and loose-jointed, but where Marshall was dark, Jefferson was sandy-haired and freckled. Jefferson’s indifference to dress matched that of Marshall.

They were, according to Virginia’s intricate way of determining relationship, “third cousins once removed,” being descended through their mothers from the famous William Randolph and Mary Isham. Both were educated to the law and both were students of Virginia’s most distinguished law teacher, Chancellor George Wythe, though Marshall’s instruction under him was only for a few weeks. In short there was every reason why these two highly gifted Virginia cousins should share the same attitudes and prejudices and hold the same opinions on the great issues of the day.

But fate had decreed otherwise. Early in their relationship distrust and antagonism developed. Marshall’s biographer Beveridge traces it to the harsh days of the American Revolution.

The Marshalls, father and son, were warriors who volunteered their services on the outbreak of hostilities. They fought at Great Bridge, the first engagement of the Revolution on Virginia soil. They later were present at the battles of Brandywine and Germantown. John was at Valley Forge and by then promoted to captain. According to all accounts he was a shining light in that winter of gloom, spreading good cheer through the camp and idolized by his men. In the next campaign he fought at Monmouth and Stony Point.

During the ordeal of Valley Forge General Washington is said once to have inquired, “Where is Jefferson?” Jefferson had, of course, been serving his country in a different way as a member of the Continental Congress. In retrospect it is obvious that he served it better as author of the Declaration of Independence than he might have as a mediocre soldier. Allowances for Jefferson’s military ineptitude are easy to make now in the light of his other great accomplishments; they were not so easily made by those of his contemporaries who had to do the fighting.

Whatever prejudices the Revolution may have sparked between the two cousins were fanned into flame by the subsequent events which shaped their careers. Jefferson went to France as American Minister where his theory of the liberty and equality of men pronounced in the Declaration found startling application in the revolution taking place there. Very naturally Jefferson’s sympathy was with the revolutionists.

Meanwhile at home the masses of the people were reveling in their new-found freedom, ignoring their responsibilities as citizens, disregarding property rights, refusing to meet their debts, and showing so little willingness to join in united action that many thoughtful men feared for the survival of the new nation.

Among the latter was John Marshall. By now he was married to Mary Ambler, daughter of Jacquelin Ambler, state treasurer, who had moved with the capital when in 1779 Governor Jefferson transferred it from Williamsburg to Richmond. The elder Ambler died some years before 1807 but the fashionable quarter of Shockoe Hill was dominated by his children and relatives. The Marshalls occupied a charming brick house which John Marshall built for his wife in 1788. He enjoyed a lucrative law practice, his clients being for the most part the well-to-do merchants and members of the creditor class. Marshall’s interests and his sympathies turned in their direction. He himself came to the conclusion that the country’s only salvation rested in a strong central government. He shared this opinion with Washington and Alexander Hamilton and the other conservatives who sought to replace the loose and ineffective confederation with a compact and articulate union. These men and others with kindred ideas evolved as Federalists.

Jefferson returned home from France to join Washington’s Cabinet as Secretary of State. It soon became apparent that an ideological gulf separated him from his colleagues. There had been political factions before but now for the first time the two divergent attitudes toward government became so clear-cut that two political parties were the inevitable outcome. Jefferson assumed the leadership of the party of revolt against the Federalist domination that had developed during Washington’s administration and continued under that of John Adams. The issue reached a climax with the victory of the Jeffersonian Republicans in the presidential election of 1800 and Jefferson’s elevation to the presidency.

Defeat threw the Federalists into a panic. Already the civilized world was shaken to its depths by the events in France where the original respectable movement to suppress tyranny and substitute for it democratic institutions had degenerated into a reign of terror, culminating in the execution of the king and queen. And now the government of the United States, insecure at best, was about to be placed in the hands of a man who approved the French Revolution and in other ways had revealed his indifference to established institutions. As the Federalists saw it, in a few weeks the House of Representatives would be “Jacobin” while in a few years the Senate too would be in the hands of the radicals.

From the Federalist point of view one hope remained. Thus far not a single Republican tainted the national judiciary. In his message to the expiring Congress on December 3, 1800, President Adams urged its expansion. The message, incidentally, though bearing the signature of the President had been written by Secretary of State Marshall. The Federalist Congress, following the advice of the President, passed the bill which increased the number of district judges and created an entirely new system of circuit courts with three judges to each circuit. The Republicans, perhaps because they thought the Federalists would not have time to make use of the measure before leaving office, put up only a mild opposition. They reckoned without the fierce determination of the rival party to seize this last opportunity to curb the Republican President and Congress.

Meanwhile Marshall had been named Chief Justice, and until the Federalists went out of power he was to have the distinction of holding at one and the same time the offices of Chief Justice and Secretary of State. So it came about that far into the night on the eve of Jefferson’s inauguration President Adams nominated from his own party judges and other court officers created under the new law, the judges to hold their seats for life. As fast as he nominated them the Senate confirmed them. Then John Marshall, in his capacity as Secretary of State, signed and sealed the commissions of the Federalists who were to form the officers and rank and file of the judiciary army which he in his capacity as Chief Justice was to lead!

Marshall’s law practice and his political prejudices might throw him with the wealthy elements of Richmond society, but neither these nor his growing importance in the world relieved him of the common touch. His simplicity of manner, his carelessness about dress that bordered on slovenliness, his humor and good fellowship appealed to all classes. It was the custom in those days for the man of the household to do the marketing. Mr. Marshall was a familiar figure in the early morning at the market at 17th and Main streets where he bartered with the country folk who brought in their fresh vegetables, meats, and other supplies. His market basket filled, he would, like other gentlemen, stop in at the booth of Joseph Darmstadt, the Hessian, who kept boiling hot coffee on the stove to which customers were free to help themselves, and there gossip over the affairs of the day. Darmstadt had valuable connections with the Pennsylvania Dutch farmers who had drifted into the Valley of Virginia and brought choice provisions to market, making the long trip in Conestoga wagons. Or Mr. Marshall might be seen on horseback, a bag of clover resting on the pommel of his saddle, setting out for a farm he owned on the outskirts of the town.

Many of his political opponents--among them Patrick Henry and George Mason--held him in deep affection. The sad exception was Jefferson. With all his democratic principles, Jefferson was not a good mixer. He had an innate reserve that made ordinary men self-conscious in his company. When reports reached him that John Marshall was the most popular man in Richmond, he could not contain himself. Was not Marshall, by thus cultivating the good will of the masses, poaching on territory Jefferson regarded as peculiarly his own? In the autumn of 1795 he wrote to his friend Madison: “His lax lounging manners have made him popular with the bulk of the people in Richmond; and a profound hypocrisy with many thinking men of our own country. But having come forth in the plenitude of his English principles the latter will see to it that it is high time to make him known.” Anger did not help Jefferson’s clarity of expression but his meaning is obvious. Marshall, as Jefferson saw him, was a hypocrite.

Yet in spite of his dislike for Marshall, Jefferson was careful to observe the amenities. When Marshall returned from a mission to France in 1797, unsuccessful as the mission had been, he was given an ovation on his arrival in Philadelphia, then the seat of government, and a public dinner was arranged in his honor. Jefferson was in Philadelphia at the time and promptly called on Marshall. Not finding him at home he left a note expressing disappointment at not seeing him and regret that a previous engagement would prevent his attending the dinner. Marshall, not to be outdone in courtesy, sat down next day and penned a reply stating that “J. Marshall begs leave to accompany his respectful compliments to Mr. Jefferson with assurance of the regret he feels at being absent when Mr. Jefferson did him the honor to call on him. J. Marshall is extremely sensible of the obliging expression contained in the polite billet of yesterday.”

These sentiments were hardly in keeping with “J. Marshall’s” true feelings. For once he was not exercising that candor which his friends considered his strongest attribute. For if Jefferson distrusted Marshall, that distrust was in no measure greater than Marshall’s distrust of Jefferson. When in the presidential election of 1800 Jefferson and Burr received an equal number of electoral votes and the election was thrown into the House of Representatives, Hamilton, displaying his usual animosity toward Burr, appealed to Marshall, then a member of the House from Virginia, to support Jefferson. To Hamilton’s appeal Marshall replied on New Year’s Day, 1801: “To Mr. Jefferson whose political character is better known to me than that of Mr. Burr, I have felt insuperable objections. His foreign prejudices seem to me totally to unfit him for the chief magistracy of the nation which cannot indulge those prejudices without sustaining deep and permanent injury. Your representation of Mr. Burr, with whom I am totally unacquainted, shows that from him still greater danger than even from Mr. Jefferson may be apprehended. But I can take no part in the business. I cannot bring myself to aid Mr. Jefferson.”

Here then was Jefferson, afraid that Marshall and his followers would turn the nation’s government into an hereditary monarchy; and Marshall equally afraid that Jefferson and his party, unless restrained, would soon reduce the nation to anarchy. To such absurd extremes can political partisanship drive otherwise highly intelligent men.

In spite of his anxieties and misgivings, Marshall, in his capacity as Chief Justice, performed his official duty in administering the oath of office to President Jefferson. How painful that duty must have been is revealed by a letter he wrote on the same day to his friend Charles Cotesworth Pinckney, of South Carolina: “The Democrats are divided into speculative theorists and absolute terrorists. With the latter I am disposed to class Mr. Jefferson. If he ranges himself with them it is not difficult to foresee that much difficulty is in store for the country--if he does not, they will soon be his enemies and calumniators.” Strong words for the Chief Justice to use against the President of the United States so soon after the Chief Justice had administered the oath to the President.

During the first nine months of his administration Jefferson had sufficient evidence of the animosity of the Federal bench, largely directed by Marshall, to write to a friend: “The Federalists have retired into the judiciary as a stronghold ... and from that battery all the works of republicanism are to be broken down and erased.”

The Republicans were not slow in taking up the Federalist challenge. Their first major offensive was the impeachment of Justice Chase. The blustering, choleric Chase, with his violent partisan comments from the bench, had provided just cause for complaint, Heaven knows. Yet his trial by the Senate and his exoneration from the charges leveled at him by the House indicated that impeachment was a dull and unreliable weapon. The verdict left Jefferson more than ever convinced that a grave error had been committed in the Constitution by granting to the judiciary authority equal to that of the executive and legislative branches. Marshall’s epochal decision in the case of Marbury versus Madison, confirming the Supreme Court’s right to pass on the constitutionality of laws enacted by Congress, strengthened that belief. Nowhere was the presumption of the judiciary better exemplified than in the person and actions of John Marshall. Jefferson’s unerring political instinct told him that the quickest and surest way to cut the judiciary down to size was to get rid of Marshall, either by impeachment or by amending the Constitution to make Federal judges removable from office at the will of the President and Congress.

But a case must first be made against Marshall. The Burr trial presented a perfect opportunity. Of this the President and the Chief Justice were both well aware, and the party leaders no less than the President and the Chief Justice. So it was that, at Richmond in the spring of 1807, Aaron Burr did not stand at the bar alone. The Chief Justice also was on trial.

President Jefferson had taken his time in acting against the alleged conspirators. He had been waiting for tangible evidence that would stand up in a court of law. Once he was convinced that he had it he moved with dispatch and determination to find Burr guilty. Otherwise, after the unequivocal charge of “guilt beyond question” proclaimed to the nation in his special message to Congress, he and his administration would be made to look ridiculous. If the Chief Justice cooperated to this end, all well and good. If on the contrary, as Jefferson foresaw, the Chief Justice raised obstructions in favor of the prisoner, he would do well to look to his own head. It was already being rumored that the President was so set on getting rid of Marshall, and so confident that doing so was a mere matter of time, that he had already chosen a successor in Spencer Roane, another Virginian, but one consecrated to the cause of Republicanism.

And here at the very outset of the trial the Chief Justice was prejudging the charge of treason by stating that if there had been treason there must by now be evidence of it. But no evidence had been produced before the court. In a letter to his friend Senator Giles, the President unbosomed himself on the unreasonableness of the decision.

“In what terms of decency can we speak of this?” he asked. “As if an express could go to Natchez, or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve!... But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic!... The nation will judge both the offender and the judges for themselves. If a member of the Executive or Legislative does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution which makes any branch independent of the nation.... If their protection of Burr produces this amendment, it will do more good than condemnation would have done ... and if his punishment can be commuted now for a useful amendment of the Constitution, I shall rejoice in it.”

If letting Burr go scot free resulted in checkmating Marshall and putting the judiciary in its place, Mr. Jefferson was willing to pay even that price. As for the lack of witnesses the Government, if the Chief Justice would only give it reasonable time, would take care of that. From Washington, Attorney General Rodney sent out printed circulars for wide distribution throughout the western country urging every good citizen to step up and communicate to the Government any information which might “contribute to the general welfare.” The allusion was obvious. A deputy marshal and special messenger were dispatched to Wood County, Virginia, to round up witnesses from the vicinity of Blennerhassett Island where the overt act of treason was alleged to have occurred.