FOOTNOTES:

FOOTNOTES:[1017]See vol.i, 201, of this work.[1018]Tobacco chewing and smoking in court-rooms continued in most American communities in the South and West down to a very recent period.[1019]Address of John Tyler on "Richmond and its Memories," Tyler,i, 219.[1020]Irving was twenty-four years old when he reported the Burr trial.[1021]Blennerhassett Papers: Safford, 465. Marshall made this avowal to Luther Martin, who personally told Blennerhassett of it.[1022]Judge Francis M. Finch, in Dillon,i, 402."The men who framed that instrument [Constitution] remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." (Adams:U.S.iii, 468.)[1023]A favorite order from the bench for the execution of the condemned was that the culprit should be drawn prostrate at the tails of horses through the jagged and filthy streets from the court-room to the place of execution; the legs, arms, nose, and ears there cut off; the intestines ripped out and burned "before the eyes" of the victim; and finally the head cut off. Details still more shocking were frequently added. See sentences upon William, Lord Russell, July 14, 1683 (State Trials Richard II to George I, vol. 3, 660); upon Algernon Sidney, November 26, 1683 (ib.738); upon William, Viscount Stafford, December 7, 1680 (ib.214); upon William Stayley, November 21, 1678 (ib.vol. 2, 656); and upon other men condemned for treason.[1024]Even in Philadelphia, after the British evacuation of that place during the Revolution, hundreds were tried for treason. Lewis alone, although then a very young lawyer, defended one hundred and fifty-two persons. (SeeChase Trial, 21.)[1025]"In the English law ... the rule ... had been that enough heads must be cut off to glut the vengeance of the Crown." (Isaac N. Phillips, in Dillon,ii, 394.)[1026]Iredell's charge to the Georgia Grand Jury, April 26, 1792,Iredell: McRee,ii, 349; and see Iredell's charge to the Massachusetts Grand Jury, Oct. 12, 1792,ib.365.[1027]See his concurrence with Judge Peters's charge in the Fries case, Wharton:State Trials, 587-91; and Peters's opinion,ib.586; also see Chase's charge at the second trial of Fries,ib.636.[1028]"The President's popularity is unbounded, and his will is that of the nation.... Such is our present infatuation." (Nicholson to Randolph, April 12, 1807, Adams:Randolph, 216-17.)[1029]Hildreth,iv, 692.[1030]Parton:Burr, 458.[1031]Parton:Jackson,i, 333.[1032]Jackson to Anderson, June 16, 1807,ib.334.[1033]Ib.335.[1034]Ib.334-36.[1035]Parton:Burr, 606-08; see also Parton:Jackson,ii, 258-59, 351-54; and Davis,ii, 433-36.[1036]Address of John Tyler, "Richmond and its Memories," Tyler,i, 219.[1037]Parton:Burr, 459.[1038]Memoirs of Lieut.-General Scott,i, 13.[1039]Memoirs of Lieut.-General Scott,i, 13, 16.[1040]SeeGreat American Lawyers: Lewis,ii, 268-75.Kennedy says that the stories of Wirt's habits of intoxication were often exaggerated (Kennedy,i, 68); but see his description of the bar of that period and his apologetic reference to Wirt's conviviality (ib.66-67).[1041]Blennerhassett Papers: Safford, 426.[1042]Parton:Burr, 461.[1043]Burr Trials,i, 31-32.[1044]Ib.37.[1045]Ib.38.[1046]Meaning the partiality of the persons challenged, such as animosity toward the accused, conduct showing bias against him, and the like. SeeBouvier's Law Dictionary: Rawle, 3d revision,ii, 1191.[1047]Burr Trials,i, 38-39.[1048]Ib.41-42.[1049]Burr Trials,i, 41-42.[1050]Jefferson to Nicholas, Feb. 28, 1807,Works: Ford,x, 370-71.[1051]Burr Trials,i, 43.[1052]Ib.44.[1053]In view of the hatred which Marshall knew Randolph felt toward Jefferson, it is hard to reconcile his appointment with the fairness which Marshall tried so hard to display throughout the trial. However, several of Jefferson's most earnest personal friends were on the grand jury, and some of them were very powerful men. Also fourteen of the grand jury were Republicans and only two were Federalists.[1054]Burr Trials,i, 45-46. This grand jury included some of the foremost citizens of Virginia. The sixteen men who composed this body were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly, John Ambler, Thomas Harrison, Alexander Shephard, and James Barbour.[1055]Marshall's error in this opinion, or perhaps the misunderstanding of a certain passage of it (seesupra, 350), caused him infinite perplexity during the trial; and he was put to his utmost ingenuity to extricate himself. The misconstruction by the grand jury of the true meaning of Marshall's charge was one determining cause of the grand jury's decision to indict Burr. (Seeinfra, 466.)[1056]Burr Trials,i, 47-48.[1057]Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.[1058]Burr Trials,i, 48-51.[1059]Burr Trials,i, 53-54.[1060]Irving to Paulding, June 22, 1807,Life and Letters of Washington Irving: Irving,i, 145.[1061]Burr Trials,i, 57-58.[1062]Burr Trials,i, 58-76.[1063]"I ... contented myself ... with ... declaring to the Audience (for two thirds of our speeches have been addressed to the people) that I was prepared to give the most direct contradiction to the injurious Statements." (Hay to Jefferson, June 14, 1807, giving the President an account of the trial, Jefferson MSS. Lib. Cong.)[1064]He was hanged in effigy soon after the trial. (Seeinfra, 539.)[1065]It must be remembered that Marshall himself declared, in the very midst of the contest, that it would be dangerous for a jury to acquit Burr. (Seesupra, 401.)[1066]He had narrowly escaped impeachment (seesupra, chap.iv), and during the trial he was openly threatened with that ordeal (seeinfra, 500).[1067]Burr Trials,i, 79-81.[1068]Seesupra, 390-91.[1069]Jefferson to Hay, May 26, 1807,Works: Ford,x, footnote to 394-95.[1070]Burr Trials,i, 81-82.[1071]Ib.82.[1072]Ib.84-85.[1073]Burr Trials,i, 91.[1074]Ib.94.[1075]Ib.95-96.[1076]Burr Trials,i, 492-97.[1077]Burr Trials,i, 509-14.[1078]Burr Trials,i, 97-101.[1079]Ib.97.[1080]Md. Hist. Soc. Fund-Pub. No. 24, 22.[1081]Blennerhassett Papers: Safford, 468-69.[1082]Burr Trials,i, 101-04.[1083]Burr Trials,i, 105.[1084]The men who went on this second bail bond for Burr were: William Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. (Ib.106.)[1085]Blennerhassett Papers: Safford, 315-16.[1086]Eaton: Prentiss, 396-403; 4 Cranch, 463-66.[1087]Blennerhassett Papers: Safford, 425.[1088]Jefferson to Hay, May 28, 1807,Works: Ford,x, 395-96.[1089]Jefferson to Eppes, May 28, 1807,Works: Ford,x, 412-13.[1090]Hay to Jefferson, May 31, 1807, Jefferson MSS. Lib. Cong.[1091]Jefferson to Hay, June 2, 1807,Works: Ford,x, 396-97.[1092]Same to same, June 5, 1807,ib.397-98; Hay to Jefferson, same date, Jefferson MSS. Lib. Cong.; and others cited,infra.[1093]Jefferson to Dayton, Aug. 17, 1807,Works: Ford,x, 478.[1094]Irving to Mrs. Hoffman, June 4, 1807, Irving,i, 142.[1095]Ib.[1096]Burr had seen the order in theNatchez Gazette. It was widely published.[1097]Burr Trials,i, 113-14.[1098]Burr Trials,i, 115-18.[1099]Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong.[1100]Jefferson to Hay, June 12, 1807,Works: Ford,x, 398-99.[1101]Burr Trials,i, 124-25.[1102]Irving to Mrs. Hoffman, June 4, 1807, Irving,i, 143.[1103]Martin here refers to what he branded as "the farcical trials of Ogden and Smith." In June and July, 1806, William S. Smith and Samuel G. Ogden of New York were tried in the United States Court for that district upon indictments charging them with having aided Miranda in his attack on Caracas, Venezuela. They made affidavit that the testimony of James Madison, Secretary of State, Henry Dearborn, Secretary of War, Robert Smith, Secretary of the Navy, and three clerks of the State Department, was necessary to their defense. Accordingly these officials were summoned to appear in court. They refused, but on July 8, 1806, wrote to the Judges—William Paterson of the Supreme Court and Matthias B. Talmadge, District Judge—that the President "has specially signified to us that our official duties cannot ... be at this juncture dispensed with." (Trials of Smith and Ogden: Lloyd, stenographer, 6-7.)The motion for an attachment to bring the secretaries and their clerks into court was argued for three days. The court disagreed, and no action therefore was taken. (Ib.7-90.) One judge (undoubtedly Paterson) was "of opinion, that the absent witnesses should be laid under a rule to show cause, why an attachment should not be issued against them"; the other (Talmadge) held "that neither an attachment in the first instance, nor a rule to show cause ought to be granted." (Ib.89.)Talmadge was a Republican, appointed by Jefferson, and charged heavily against the defendants (ib.236-42, 287); but they were acquitted.The case was regarded as a political prosecution, and the refusal of Cabinet officers and department clerks to obey the summons of the court, together with Judge Talmadge's disagreement with Justice Paterson—who in disgust immediately left the bench under plea of ill-health (ib.90)—and the subsequent conduct of the trial judge, were commented upon unfavorably. These facts led to Martin's reference during the Burr trial.[1104]Burr Trials,i, 127-28.[1105]Burr Trials,i, 130-33.[1106]Ib.134-35.[1107]Burr Trials,i, 137-45.[1108]Burr Trials,i, 147-48.[1109]Ib.148-52.[1110]Burr Trials,i, 153-64.[1111]Burr Trials,i, 164-67.[1112]Ib.173-76.[1113]Burr Trials,i, 177.[1114]Seeinfra, 455-56.[1115]Burr Trials,i, 181-83.[1116]United Statesvs.Smith and Ogden. (Seesupra, 436, foot-note.)[1117]Burr Trials,i, 187-88.[1118]Burr Trials,i, 189.[1119]Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.[1120]Ambler:Thomas Ritchie—A Study in Virginia Politics, 40-41.[1121]Jefferson to Hay, June 17, 1807,Works: Ford,x, 400-01.[1122]Jefferson to Hay, June 19, 1807,Works: Ford,x, 402-03.[1123]Burr Trials,i, 190.[1124]Burr Trials,i, 191-93.[1125]Burr Trials,i, 193-96.[1126]Jefferson to Hay, June 20, 1807,Works: Ford,x, 403-05.[1127]Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This letter announced Wilkinson's landing at Hampton Roads.Wilkinson reached Richmond by stage on Saturday, June 13. He was accompanied by John Graham and Captain Gaines, the ordinary witnesses having been sent ahead on a pilot boat. (Graham to Madison, May 11, 1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated his letter May 11 instead of June 11. He had left New Orleans in May, and in the excitement of landing had evidently forgotten that a new month had come.Wilkinson was "too much fatigued" to come into court. (Burr Trials,i, 196.) By Monday, however, he was sufficiently restored to present himself before Marshall.[1128]Irving to Paulding, June 22, 1807, Irving,i, 145.[1129]Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," MSS. Lib. Cong.The court reporter impartially states that Wilkinson was "calm, dignified, and commanding," and that Burr glanced at him with "haughty contempt." (Burr Trials,i, footnote to 197.)[1130]"Gen: Jackson of Tennessee has been here ever since the 22ḍ[of May] denouncing Wilkinson in the coarsest terms in every company." (Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)Hay had not the courage to tell the President that Jackson had been as savagely unsparing in his attacks on Jefferson as in his thoroughly justified condemnation of Wilkinson.[1131]Truxtun left the Navy in 1802, and, at the time of the Burr trial, was living on a farm in New Jersey. No officer in any navy ever made a better record for gallantry, seamanship, and whole-hearted devotion to his country. The list of his successful engagements is amazing. He was as high-spirited as he was fearless and honorable.In 1802, when in command of the squadron that was being equipped for our war with Tripoli, Truxtun most properly asked that a captain be appointed to command the flagship. The Navy was in great disfavor with Jefferson and the whole Republican Party, and naval affairs were sadly mismanaged or neglected. Truxtun's reasonable request was refused by the Administration, and he wrote a letter of indignant protest to the Secretary of the Navy. To the surprise and dismay of the experienced and competent officer, Jefferson and his Cabinet construed his spirited letter as a resignation from the service, and, against Truxtun's wishes, accepted it as such. Thus the American Navy lost one of its ablest officers at the very height of his powers. Truxtun at the time was fifty-two years old. No single act of Jefferson's Administration is more discreditable than this untimely ending of a great career.[1132]This man was the elder Decatur, father of the more famous officer of the same name. He had had a career in the American Navy as honorable but not so distinguished as that of Truxtun; and his service had been ended by an unhappy circumstance, but one less humiliating than that which severed Truxtun's connection with the Navy.The unworthiest act of the expiring Federalist Congress of 1801, and one which all Republicans eagerly supported, was that authorizing most of the ships of the Navy to be sold or laid up and most of the naval officers discharged. (Act of March 3, 1801,Annals, 6th Cong. 1st and 2d Sess. 1557-59.) Among the men whose life profession was thus cut off, and whose notable services to their country were thus rewarded, was Commodore Stephen Decatur, who thereafter engaged in business in Philadelphia.[1133]It was under Stoddert's administration of the Navy Department that the American Navy was really created. Both Truxtun and Decatur won their greatest sea battles in our naval war with France, while Stoddert was Secretary. The three men were close friends and all of them warmly resented the demolition of the Navy and highly disapproved of Jefferson, both as an individual and as a statesman. They belonged to the old school of Federalists. Three more upright men did not live.[1134]Seesupra, 304-05.[1135]A popular designation of Eaton after his picturesque and heroic Moroccan exploit.[1136]Truxtun at the time of his conversations with Burr was in the thick of that despair over his cruel and unjustifiable separation from the Navy, which clouded his whole after life. The longing to be once more on the quarter-deck of an American warship never left his heart.[1137]Burr Trials,i, 486-91. This abstract is from the testimony given by Commodore Truxtun before the trial jury, which was substantially the same as that before the grand jury.[1138]Annals, 10th Cong. 1st Sess. 452-63. See note 1, next page.[1139]Wilkinson's testimony on the trial for misdemeanor (Annals, 10th Cong. 1st Sess, 520-22) was the same as before the grand jury."Wilkinson is now before the grand jury, and has such a mighty mass ofwordsto deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (Irving to Paulding, June 22, 1807, Irving,i, 145.)[1140]See McCaleb, 335. Politics alone saved Wilkinson. The trial was universally considered a party matter, Jefferson's prestige, especially, being at stake. Yet seven out of the sixteen members of the grand jury voted to indict Wilkinson. Fourteen of the jury were Republicans, and two were Federalists.[1141]Randolph to Nicholson, June 25, 1807, Adams:Randolph, 221-22. Speaking of political conditions at that time, Randolph observed: "Politics have usurped the place of law, and the scenes of 1798 [referring to the Alien and Sedition laws] are again revived."[1142]Testimony of Joseph C. Cabell, one of the grand jury. (Annals, 10th Cong. 1st Sess. 677.)[1143]"Mr. Swartwout ... discovered the utmost frankness and candor in his evidence.... The very frank and candid manner in which he gave his testimony, I must confess, raised him very high in my estimation, and induced me to form a very different opinion of him from that which I had before entertained." (Testimony of Littleton W. Tazewell, one of the grand jury,Annals, 10th Cong. 1st Sess. 633.)"The manner of Mr. Swartwout was certainly that of conscious innocence." (Testimony of Joseph C. Cabell, one of the grand jury,ib.677.)[1144]Seesupra, 426-27.[1145]Forty-eight witnesses were examined by the grand jury. The names are given in Brady:Trial of Aaron Burr, 69-70.[1146]Burr Trials,i, 305-06; also "Bills of Indictment," MSS. Archives of the United States Court, Richmond, Va.The following day former Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and Davis Floyd of the Territory of Indiana, were presented for treason. How Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only less comprehensible than the presentment of Tyler, Floyd, and the two Smiths for treason.[1147]Blennerhassett Papers: Safford, 314. "Two of the most respectable and influential of that body, since it has been discharged, have declared they mistook the meaning of Chief Justice Marshall's opinion as to what sort of acts amounted to treason in this country, in the case of Swartwout and Ogden [Bollmann]; that it was under the influence of this mistake they concurred in finding such a bill against A. Burr, which otherwise would have probably been ignored."[1148]Burr Trials,i, 327-28.[1149]Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong.[1150]Burr Trials,i, 197-357.[1151]This was one of Luther Martin's characteristic outbursts. Every word of it, however, was true.[1152]Burr Trials,i, 197-357.

[1017]See vol.i, 201, of this work.

[1018]Tobacco chewing and smoking in court-rooms continued in most American communities in the South and West down to a very recent period.

[1019]Address of John Tyler on "Richmond and its Memories," Tyler,i, 219.

[1020]Irving was twenty-four years old when he reported the Burr trial.

[1021]Blennerhassett Papers: Safford, 465. Marshall made this avowal to Luther Martin, who personally told Blennerhassett of it.

[1022]Judge Francis M. Finch, in Dillon,i, 402."The men who framed that instrument [Constitution] remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." (Adams:U.S.iii, 468.)

[1022]Judge Francis M. Finch, in Dillon,i, 402.

"The men who framed that instrument [Constitution] remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." (Adams:U.S.iii, 468.)

[1023]A favorite order from the bench for the execution of the condemned was that the culprit should be drawn prostrate at the tails of horses through the jagged and filthy streets from the court-room to the place of execution; the legs, arms, nose, and ears there cut off; the intestines ripped out and burned "before the eyes" of the victim; and finally the head cut off. Details still more shocking were frequently added. See sentences upon William, Lord Russell, July 14, 1683 (State Trials Richard II to George I, vol. 3, 660); upon Algernon Sidney, November 26, 1683 (ib.738); upon William, Viscount Stafford, December 7, 1680 (ib.214); upon William Stayley, November 21, 1678 (ib.vol. 2, 656); and upon other men condemned for treason.

[1024]Even in Philadelphia, after the British evacuation of that place during the Revolution, hundreds were tried for treason. Lewis alone, although then a very young lawyer, defended one hundred and fifty-two persons. (SeeChase Trial, 21.)

[1025]"In the English law ... the rule ... had been that enough heads must be cut off to glut the vengeance of the Crown." (Isaac N. Phillips, in Dillon,ii, 394.)

[1026]Iredell's charge to the Georgia Grand Jury, April 26, 1792,Iredell: McRee,ii, 349; and see Iredell's charge to the Massachusetts Grand Jury, Oct. 12, 1792,ib.365.

[1027]See his concurrence with Judge Peters's charge in the Fries case, Wharton:State Trials, 587-91; and Peters's opinion,ib.586; also see Chase's charge at the second trial of Fries,ib.636.

[1028]"The President's popularity is unbounded, and his will is that of the nation.... Such is our present infatuation." (Nicholson to Randolph, April 12, 1807, Adams:Randolph, 216-17.)

[1029]Hildreth,iv, 692.

[1030]Parton:Burr, 458.

[1031]Parton:Jackson,i, 333.

[1032]Jackson to Anderson, June 16, 1807,ib.334.

[1033]Ib.335.

[1034]Ib.334-36.

[1035]Parton:Burr, 606-08; see also Parton:Jackson,ii, 258-59, 351-54; and Davis,ii, 433-36.

[1036]Address of John Tyler, "Richmond and its Memories," Tyler,i, 219.

[1037]Parton:Burr, 459.

[1038]Memoirs of Lieut.-General Scott,i, 13.

[1039]Memoirs of Lieut.-General Scott,i, 13, 16.

[1040]SeeGreat American Lawyers: Lewis,ii, 268-75.Kennedy says that the stories of Wirt's habits of intoxication were often exaggerated (Kennedy,i, 68); but see his description of the bar of that period and his apologetic reference to Wirt's conviviality (ib.66-67).

[1040]SeeGreat American Lawyers: Lewis,ii, 268-75.

Kennedy says that the stories of Wirt's habits of intoxication were often exaggerated (Kennedy,i, 68); but see his description of the bar of that period and his apologetic reference to Wirt's conviviality (ib.66-67).

[1041]Blennerhassett Papers: Safford, 426.

[1042]Parton:Burr, 461.

[1043]Burr Trials,i, 31-32.

[1044]Ib.37.

[1045]Ib.38.

[1046]Meaning the partiality of the persons challenged, such as animosity toward the accused, conduct showing bias against him, and the like. SeeBouvier's Law Dictionary: Rawle, 3d revision,ii, 1191.

[1047]Burr Trials,i, 38-39.

[1048]Ib.41-42.

[1049]Burr Trials,i, 41-42.

[1050]Jefferson to Nicholas, Feb. 28, 1807,Works: Ford,x, 370-71.

[1051]Burr Trials,i, 43.

[1052]Ib.44.

[1053]In view of the hatred which Marshall knew Randolph felt toward Jefferson, it is hard to reconcile his appointment with the fairness which Marshall tried so hard to display throughout the trial. However, several of Jefferson's most earnest personal friends were on the grand jury, and some of them were very powerful men. Also fourteen of the grand jury were Republicans and only two were Federalists.

[1054]Burr Trials,i, 45-46. This grand jury included some of the foremost citizens of Virginia. The sixteen men who composed this body were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly, John Ambler, Thomas Harrison, Alexander Shephard, and James Barbour.

[1055]Marshall's error in this opinion, or perhaps the misunderstanding of a certain passage of it (seesupra, 350), caused him infinite perplexity during the trial; and he was put to his utmost ingenuity to extricate himself. The misconstruction by the grand jury of the true meaning of Marshall's charge was one determining cause of the grand jury's decision to indict Burr. (Seeinfra, 466.)

[1056]Burr Trials,i, 47-48.

[1057]Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.

[1058]Burr Trials,i, 48-51.

[1059]Burr Trials,i, 53-54.

[1060]Irving to Paulding, June 22, 1807,Life and Letters of Washington Irving: Irving,i, 145.

[1061]Burr Trials,i, 57-58.

[1062]Burr Trials,i, 58-76.

[1063]"I ... contented myself ... with ... declaring to the Audience (for two thirds of our speeches have been addressed to the people) that I was prepared to give the most direct contradiction to the injurious Statements." (Hay to Jefferson, June 14, 1807, giving the President an account of the trial, Jefferson MSS. Lib. Cong.)

[1064]He was hanged in effigy soon after the trial. (Seeinfra, 539.)

[1065]It must be remembered that Marshall himself declared, in the very midst of the contest, that it would be dangerous for a jury to acquit Burr. (Seesupra, 401.)

[1066]He had narrowly escaped impeachment (seesupra, chap.iv), and during the trial he was openly threatened with that ordeal (seeinfra, 500).

[1067]Burr Trials,i, 79-81.

[1068]Seesupra, 390-91.

[1069]Jefferson to Hay, May 26, 1807,Works: Ford,x, footnote to 394-95.

[1070]Burr Trials,i, 81-82.

[1071]Ib.82.

[1072]Ib.84-85.

[1073]Burr Trials,i, 91.

[1074]Ib.94.

[1075]Ib.95-96.

[1076]Burr Trials,i, 492-97.

[1077]Burr Trials,i, 509-14.

[1078]Burr Trials,i, 97-101.

[1079]Ib.97.

[1080]Md. Hist. Soc. Fund-Pub. No. 24, 22.

[1081]Blennerhassett Papers: Safford, 468-69.

[1082]Burr Trials,i, 101-04.

[1083]Burr Trials,i, 105.

[1084]The men who went on this second bail bond for Burr were: William Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. (Ib.106.)

[1085]Blennerhassett Papers: Safford, 315-16.

[1086]Eaton: Prentiss, 396-403; 4 Cranch, 463-66.

[1087]Blennerhassett Papers: Safford, 425.

[1088]Jefferson to Hay, May 28, 1807,Works: Ford,x, 395-96.

[1089]Jefferson to Eppes, May 28, 1807,Works: Ford,x, 412-13.

[1090]Hay to Jefferson, May 31, 1807, Jefferson MSS. Lib. Cong.

[1091]Jefferson to Hay, June 2, 1807,Works: Ford,x, 396-97.

[1092]Same to same, June 5, 1807,ib.397-98; Hay to Jefferson, same date, Jefferson MSS. Lib. Cong.; and others cited,infra.

[1093]Jefferson to Dayton, Aug. 17, 1807,Works: Ford,x, 478.

[1094]Irving to Mrs. Hoffman, June 4, 1807, Irving,i, 142.

[1095]Ib.

[1096]Burr had seen the order in theNatchez Gazette. It was widely published.

[1097]Burr Trials,i, 113-14.

[1098]Burr Trials,i, 115-18.

[1099]Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong.

[1100]Jefferson to Hay, June 12, 1807,Works: Ford,x, 398-99.

[1101]Burr Trials,i, 124-25.

[1102]Irving to Mrs. Hoffman, June 4, 1807, Irving,i, 143.

[1103]Martin here refers to what he branded as "the farcical trials of Ogden and Smith." In June and July, 1806, William S. Smith and Samuel G. Ogden of New York were tried in the United States Court for that district upon indictments charging them with having aided Miranda in his attack on Caracas, Venezuela. They made affidavit that the testimony of James Madison, Secretary of State, Henry Dearborn, Secretary of War, Robert Smith, Secretary of the Navy, and three clerks of the State Department, was necessary to their defense. Accordingly these officials were summoned to appear in court. They refused, but on July 8, 1806, wrote to the Judges—William Paterson of the Supreme Court and Matthias B. Talmadge, District Judge—that the President "has specially signified to us that our official duties cannot ... be at this juncture dispensed with." (Trials of Smith and Ogden: Lloyd, stenographer, 6-7.)The motion for an attachment to bring the secretaries and their clerks into court was argued for three days. The court disagreed, and no action therefore was taken. (Ib.7-90.) One judge (undoubtedly Paterson) was "of opinion, that the absent witnesses should be laid under a rule to show cause, why an attachment should not be issued against them"; the other (Talmadge) held "that neither an attachment in the first instance, nor a rule to show cause ought to be granted." (Ib.89.)Talmadge was a Republican, appointed by Jefferson, and charged heavily against the defendants (ib.236-42, 287); but they were acquitted.The case was regarded as a political prosecution, and the refusal of Cabinet officers and department clerks to obey the summons of the court, together with Judge Talmadge's disagreement with Justice Paterson—who in disgust immediately left the bench under plea of ill-health (ib.90)—and the subsequent conduct of the trial judge, were commented upon unfavorably. These facts led to Martin's reference during the Burr trial.

The motion for an attachment to bring the secretaries and their clerks into court was argued for three days. The court disagreed, and no action therefore was taken. (Ib.7-90.) One judge (undoubtedly Paterson) was "of opinion, that the absent witnesses should be laid under a rule to show cause, why an attachment should not be issued against them"; the other (Talmadge) held "that neither an attachment in the first instance, nor a rule to show cause ought to be granted." (Ib.89.)

Talmadge was a Republican, appointed by Jefferson, and charged heavily against the defendants (ib.236-42, 287); but they were acquitted.

The case was regarded as a political prosecution, and the refusal of Cabinet officers and department clerks to obey the summons of the court, together with Judge Talmadge's disagreement with Justice Paterson—who in disgust immediately left the bench under plea of ill-health (ib.90)—and the subsequent conduct of the trial judge, were commented upon unfavorably. These facts led to Martin's reference during the Burr trial.

[1104]Burr Trials,i, 127-28.

[1105]Burr Trials,i, 130-33.

[1106]Ib.134-35.

[1107]Burr Trials,i, 137-45.

[1108]Burr Trials,i, 147-48.

[1109]Ib.148-52.

[1110]Burr Trials,i, 153-64.

[1111]Burr Trials,i, 164-67.

[1112]Ib.173-76.

[1113]Burr Trials,i, 177.

[1114]Seeinfra, 455-56.

[1115]Burr Trials,i, 181-83.

[1116]United Statesvs.Smith and Ogden. (Seesupra, 436, foot-note.)

[1117]Burr Trials,i, 187-88.

[1118]Burr Trials,i, 189.

[1119]Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.

[1120]Ambler:Thomas Ritchie—A Study in Virginia Politics, 40-41.

[1121]Jefferson to Hay, June 17, 1807,Works: Ford,x, 400-01.

[1122]Jefferson to Hay, June 19, 1807,Works: Ford,x, 402-03.

[1123]Burr Trials,i, 190.

[1124]Burr Trials,i, 191-93.

[1125]Burr Trials,i, 193-96.

[1126]Jefferson to Hay, June 20, 1807,Works: Ford,x, 403-05.

[1127]Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This letter announced Wilkinson's landing at Hampton Roads.Wilkinson reached Richmond by stage on Saturday, June 13. He was accompanied by John Graham and Captain Gaines, the ordinary witnesses having been sent ahead on a pilot boat. (Graham to Madison, May 11, 1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated his letter May 11 instead of June 11. He had left New Orleans in May, and in the excitement of landing had evidently forgotten that a new month had come.Wilkinson was "too much fatigued" to come into court. (Burr Trials,i, 196.) By Monday, however, he was sufficiently restored to present himself before Marshall.

[1127]Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This letter announced Wilkinson's landing at Hampton Roads.

Wilkinson reached Richmond by stage on Saturday, June 13. He was accompanied by John Graham and Captain Gaines, the ordinary witnesses having been sent ahead on a pilot boat. (Graham to Madison, May 11, 1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated his letter May 11 instead of June 11. He had left New Orleans in May, and in the excitement of landing had evidently forgotten that a new month had come.

Wilkinson was "too much fatigued" to come into court. (Burr Trials,i, 196.) By Monday, however, he was sufficiently restored to present himself before Marshall.

[1128]Irving to Paulding, June 22, 1807, Irving,i, 145.

[1129]Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," MSS. Lib. Cong.The court reporter impartially states that Wilkinson was "calm, dignified, and commanding," and that Burr glanced at him with "haughty contempt." (Burr Trials,i, footnote to 197.)

[1129]Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," MSS. Lib. Cong.

The court reporter impartially states that Wilkinson was "calm, dignified, and commanding," and that Burr glanced at him with "haughty contempt." (Burr Trials,i, footnote to 197.)

[1130]"Gen: Jackson of Tennessee has been here ever since the 22ḍ[of May] denouncing Wilkinson in the coarsest terms in every company." (Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)Hay had not the courage to tell the President that Jackson had been as savagely unsparing in his attacks on Jefferson as in his thoroughly justified condemnation of Wilkinson.

[1130]"Gen: Jackson of Tennessee has been here ever since the 22ḍ[of May] denouncing Wilkinson in the coarsest terms in every company." (Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)

Hay had not the courage to tell the President that Jackson had been as savagely unsparing in his attacks on Jefferson as in his thoroughly justified condemnation of Wilkinson.

[1131]Truxtun left the Navy in 1802, and, at the time of the Burr trial, was living on a farm in New Jersey. No officer in any navy ever made a better record for gallantry, seamanship, and whole-hearted devotion to his country. The list of his successful engagements is amazing. He was as high-spirited as he was fearless and honorable.In 1802, when in command of the squadron that was being equipped for our war with Tripoli, Truxtun most properly asked that a captain be appointed to command the flagship. The Navy was in great disfavor with Jefferson and the whole Republican Party, and naval affairs were sadly mismanaged or neglected. Truxtun's reasonable request was refused by the Administration, and he wrote a letter of indignant protest to the Secretary of the Navy. To the surprise and dismay of the experienced and competent officer, Jefferson and his Cabinet construed his spirited letter as a resignation from the service, and, against Truxtun's wishes, accepted it as such. Thus the American Navy lost one of its ablest officers at the very height of his powers. Truxtun at the time was fifty-two years old. No single act of Jefferson's Administration is more discreditable than this untimely ending of a great career.

In 1802, when in command of the squadron that was being equipped for our war with Tripoli, Truxtun most properly asked that a captain be appointed to command the flagship. The Navy was in great disfavor with Jefferson and the whole Republican Party, and naval affairs were sadly mismanaged or neglected. Truxtun's reasonable request was refused by the Administration, and he wrote a letter of indignant protest to the Secretary of the Navy. To the surprise and dismay of the experienced and competent officer, Jefferson and his Cabinet construed his spirited letter as a resignation from the service, and, against Truxtun's wishes, accepted it as such. Thus the American Navy lost one of its ablest officers at the very height of his powers. Truxtun at the time was fifty-two years old. No single act of Jefferson's Administration is more discreditable than this untimely ending of a great career.

[1132]This man was the elder Decatur, father of the more famous officer of the same name. He had had a career in the American Navy as honorable but not so distinguished as that of Truxtun; and his service had been ended by an unhappy circumstance, but one less humiliating than that which severed Truxtun's connection with the Navy.The unworthiest act of the expiring Federalist Congress of 1801, and one which all Republicans eagerly supported, was that authorizing most of the ships of the Navy to be sold or laid up and most of the naval officers discharged. (Act of March 3, 1801,Annals, 6th Cong. 1st and 2d Sess. 1557-59.) Among the men whose life profession was thus cut off, and whose notable services to their country were thus rewarded, was Commodore Stephen Decatur, who thereafter engaged in business in Philadelphia.

The unworthiest act of the expiring Federalist Congress of 1801, and one which all Republicans eagerly supported, was that authorizing most of the ships of the Navy to be sold or laid up and most of the naval officers discharged. (Act of March 3, 1801,Annals, 6th Cong. 1st and 2d Sess. 1557-59.) Among the men whose life profession was thus cut off, and whose notable services to their country were thus rewarded, was Commodore Stephen Decatur, who thereafter engaged in business in Philadelphia.

[1133]It was under Stoddert's administration of the Navy Department that the American Navy was really created. Both Truxtun and Decatur won their greatest sea battles in our naval war with France, while Stoddert was Secretary. The three men were close friends and all of them warmly resented the demolition of the Navy and highly disapproved of Jefferson, both as an individual and as a statesman. They belonged to the old school of Federalists. Three more upright men did not live.

[1134]Seesupra, 304-05.

[1135]A popular designation of Eaton after his picturesque and heroic Moroccan exploit.

[1136]Truxtun at the time of his conversations with Burr was in the thick of that despair over his cruel and unjustifiable separation from the Navy, which clouded his whole after life. The longing to be once more on the quarter-deck of an American warship never left his heart.

[1137]Burr Trials,i, 486-91. This abstract is from the testimony given by Commodore Truxtun before the trial jury, which was substantially the same as that before the grand jury.

[1138]Annals, 10th Cong. 1st Sess. 452-63. See note 1, next page.

[1139]Wilkinson's testimony on the trial for misdemeanor (Annals, 10th Cong. 1st Sess, 520-22) was the same as before the grand jury."Wilkinson is now before the grand jury, and has such a mighty mass ofwordsto deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (Irving to Paulding, June 22, 1807, Irving,i, 145.)

[1139]Wilkinson's testimony on the trial for misdemeanor (Annals, 10th Cong. 1st Sess, 520-22) was the same as before the grand jury.

"Wilkinson is now before the grand jury, and has such a mighty mass ofwordsto deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (Irving to Paulding, June 22, 1807, Irving,i, 145.)

[1140]See McCaleb, 335. Politics alone saved Wilkinson. The trial was universally considered a party matter, Jefferson's prestige, especially, being at stake. Yet seven out of the sixteen members of the grand jury voted to indict Wilkinson. Fourteen of the jury were Republicans, and two were Federalists.

[1141]Randolph to Nicholson, June 25, 1807, Adams:Randolph, 221-22. Speaking of political conditions at that time, Randolph observed: "Politics have usurped the place of law, and the scenes of 1798 [referring to the Alien and Sedition laws] are again revived."

[1142]Testimony of Joseph C. Cabell, one of the grand jury. (Annals, 10th Cong. 1st Sess. 677.)

[1143]"Mr. Swartwout ... discovered the utmost frankness and candor in his evidence.... The very frank and candid manner in which he gave his testimony, I must confess, raised him very high in my estimation, and induced me to form a very different opinion of him from that which I had before entertained." (Testimony of Littleton W. Tazewell, one of the grand jury,Annals, 10th Cong. 1st Sess. 633.)"The manner of Mr. Swartwout was certainly that of conscious innocence." (Testimony of Joseph C. Cabell, one of the grand jury,ib.677.)

"The manner of Mr. Swartwout was certainly that of conscious innocence." (Testimony of Joseph C. Cabell, one of the grand jury,ib.677.)

[1144]Seesupra, 426-27.

[1145]Forty-eight witnesses were examined by the grand jury. The names are given in Brady:Trial of Aaron Burr, 69-70.

[1146]Burr Trials,i, 305-06; also "Bills of Indictment," MSS. Archives of the United States Court, Richmond, Va.The following day former Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and Davis Floyd of the Territory of Indiana, were presented for treason. How Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only less comprehensible than the presentment of Tyler, Floyd, and the two Smiths for treason.

[1146]Burr Trials,i, 305-06; also "Bills of Indictment," MSS. Archives of the United States Court, Richmond, Va.

The following day former Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and Davis Floyd of the Territory of Indiana, were presented for treason. How Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only less comprehensible than the presentment of Tyler, Floyd, and the two Smiths for treason.

[1147]Blennerhassett Papers: Safford, 314. "Two of the most respectable and influential of that body, since it has been discharged, have declared they mistook the meaning of Chief Justice Marshall's opinion as to what sort of acts amounted to treason in this country, in the case of Swartwout and Ogden [Bollmann]; that it was under the influence of this mistake they concurred in finding such a bill against A. Burr, which otherwise would have probably been ignored."

[1148]Burr Trials,i, 327-28.

[1149]Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong.

[1150]Burr Trials,i, 197-357.

[1151]This was one of Luther Martin's characteristic outbursts. Every word of it, however, was true.

[1152]Burr Trials,i, 197-357.

No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Constitution, Article III, Section 3.)Such are the jealous provisions of our laws in favor of the accused that I question if he can be convicted. (Jefferson.)The scenes which have passed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (Aaron Burr.)That this court dares not usurp power is most true. That this court dares not shrink from its duty is no less true. (Marshall.)

No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Constitution, Article III, Section 3.)

Such are the jealous provisions of our laws in favor of the accused that I question if he can be convicted. (Jefferson.)

The scenes which have passed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (Aaron Burr.)

That this court dares not usurp power is most true. That this court dares not shrink from its duty is no less true. (Marshall.)

While the grand jury had been examining witnesses, interesting things had taken place in Richmond. Burr's friends increased in number and devotion. Many of them accompanied him to and from court each day.[1153]Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.[1154]Fashionable Richmond was rapidly becoming Burr-partisan. In society, as at the bar, the Government had been maneuvered into defense. Throughout the country, indeed, Burr's numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, "even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests—or would make greatersacrifices to aid him than this man."[1155]But this availed Burr nothing as against the opinion of the multitude, which Jefferson manipulated as he chose. Indeed, save in Richmond, this very fidelity of Burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his followers to aggressive action. On the streets, in the taverns and drinking-places, his adherents grew bolder. Young Swartwout chanced to meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower[1156]shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On learning of the incident Jackson "was wild with delight."[1157]Burr's enemies were as furious with anger. To spirited Virginians, only treason itself was worse than the refusal of Wilkinson, thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public impression of Wilkinson's cowardice. He challenged the General to a duel; the hero refused—"he held no correspondence with traitors or conspirators," he loftily observed;[1158]whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the American armies as guilty of treachery, perjury,forgery, and cowardice.[1159]The highest officer in the American military establishment "posted for cowardice" by a mere stripling! More than ever was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted, Wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward Burr; and he wrote to Jefferson in unctuous horror: "I had anticipated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour—... To my Astonishment I found the Traitor vindicated & myself condemned by a Mass of Wealth Character-influence & Talents—merciful God what a Spectacle did I behold—Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant."[1160]

Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. Accept I pray, my salutations and assurances of respect and esteem."[1161]

Before the grand jury had indicted Burr and Blennerhassett, Wilkinson suffered another humiliation. On the very day that the General sent his wailing cry of outraged virtue to the President, Burr gave notice that he would move that an attachment should issue against Jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.[1162]The following day was consumed in argument upon the motion that did not rise far above bickering. Marshall ruled that witnesses should be heard in support of Burr's application, and that Wilkinson ought to be present.[1163]Accordingly, the General was ordered to come into court.

James Knox, one of the young men who had accompanied Burr on his disastrous expedition, had been brought from New Orleans as a witness for the Government. He told a straightforward story of brutality inflicted upon him because he could not readily answer the printed questions sent out by Jefferson's Attorney-General.[1164]By other witnesses it appeared that letters had been improperly taken from the post-office in New Orleans.[1165]An argument followed in which counsel on both sides distinguished themselves by the learning and eloquence they displayed.[1166]

It was while Botts was speaking on this motion to attach Wilkinson, that the grand jury returned the bills of indictment.[1167]So came the dramatic climax.

Instantly the argument over the attachment of Wilkinson was suspended. Burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.[1168]Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ... had been impeached for perjury," or new testimony had been presented to the court.[1169]For once in his life, Martin could not answer immediately and offhand. So that night Aaron Burr slept in the common jail at Richmond.

"The cup of bitterness has been administered to him with unsparing hand," wrote Washington Irving.[1170]But he did not quail. He was released next morning upon a writ of habeas corpus;[1171]the argument on the request for the attachment of Wilkinson was resumed, and for three days counsel attacked and counter-attacked.[1172]On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the house occupied by Luther Martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men. Burr pleaded not guilty to the indictmentsagainst him, and orders were given for summoning the jury to try him.[1173]

Finally, Marshall delivered his written opinion upon the motion to attach Wilkinson. It was unimportant, and held that Wilkinson had not been shown to have influenced the judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on August 3 from Wood County, in which Blennerhassett's island was located, and where the indictment charged that the crime had been committed.[1174]

Five days before Marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of Burr, how unshakable the tenacity with which Jefferson pursued him.

On June 22, 1807, the British warship, the Leopard, halted the American frigate, the Chesapeake, as the latter was putting out to sea from Norfolk. The British officers demanded of Commodore James Barron to search the American ship for British deserters and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. The Chesapeake had not been fitted out, was unableto reply, and finally was forced to strike her colors. The British officers then came on board and seized the men they claimed as deserters, all but one of whom were American-born citizens.[1175]

The whole country, except New England, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. Quickly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,[1176]committed by a foreign power in American waters, weaken for a moment the President's determination to punish the native disturber of our domestic felicity.

The news of the Chesapeake outrage arrived at Richmond on June 25, and John Randolph supposed that, of course, Jefferson would immediately call Congress in special session.[1177]The President did nothing of the kind. Wilkinson, as Commander of the Army, advised him against armed retaliation. The "late outrage by the British," wrote the General, "has produced ... a degree of Emotion bordering on rage—I revere the Honourable impulse but fear its Effects—... The present is no moment for precipitancy or a stretch of power—on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage—... The efforts made here [Richmond] by a band of depraved Citizens, in conjunction with anaudacious phalanx of insolent exotics, to save Burr, will have an ultimate good Effect, for the national Character of theAncient dominionis in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within."

Wilkinson tells Jefferson that he is coming to Washington forthwith to pay his "respects," and concludes: "You are doubtless well advised of proceedings here in the case of Burr—to me they are incomprehensible as I am no Jurist—The Grand Jury actually made an attempt to present me for Misprision of Treason—... I feel myself between 'Scylla and Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr & his Conspirators for performing it—"[1178]

Not until five weeks after the Chesapeake affair did the President call Congress to convene in special session on October 26—more than four months after the occurrence of the crisis it was summoned to consider.[1179]But in the meantime Jefferson had sent a messenger to advise the American Minister in London to tell the British Government what had happened, and to demand a disavowal and an apology.

Meanwhile, the Administration vigorously pushed the prosecution of the imprisoned "traitor" at Richmond.[1180]Hay was dissatisfied that Burr shouldremain in Martin's house, even under guard and with windows barred and door locked; and he obtained from the Executive Council of Virginia a tender to the court of "apartments on the third floor" of the State Penitentiary for the incarceration of the prisoner. Burr's counsel strenuously objected, but Marshall ordered that he be confined there until August 2, at which time he should be returned to the barred and padlocked room in Martin's house.[1181]

In the penitentiary, "situated in a solitary place among the hills" a mile and a half from Richmond,[1182]Burr remained for five weeks. Three large rooms were given him in the third story; the jailer was considerate and kind; his friends called on him every day;[1183]and servants constantly "arrived with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice and some ordinary articles."[1184]

Burr wrote Theodosia of his many visitors, women as well as men: "It is well that I have an ante-chamber, or I should often begênéwith visitors." If Theodosia should come on for the trial, he playfully admonishes her that there must be "no agitations, no complaints, no fears or anxieties on the road, or I renounce thee."[1185]

Finally Burr asked his daughter to come to him: "I want an independent and discerning witness to my conduct and that of the government. The scenes which have passed and those about to be transacted will exceed all reasonable credibility, and will hereafter be deemed fables, unless attested by very high authority.... I should never invite any one, much less those so dear to me, to witness my disgrace. I may be immured in dungeons, chained, murdered in legal form, but I cannot be humiliated or disgraced. If absent, you will suffer great solicitude. In my presence you will feel none, whatever be themaliceor thepowerof my enemies, and in both they abound."[1186]

Theodosia was soon with her father. Her husband, Joseph Alston, now Governor of South Carolina, accompanied her; and she brought her little son, who, almost as much as his beautiful mother, was the delight of Burr's heart.

During these torrid weeks the public temper throughout the country rose with the thermometer.[1187]The popular distrust of Marshall grew into open hostility. A report of the proceedings, down to the time when Burr was indicted for treason, was published in a thick pamphlet and sold all over Virginia and neighboring States. The impression which the people thus acquired was that Marshall was protecting Burr; for had he not refused to imprison him until the grand jury indicted the "traitor"?

The Chief Justice estimated the situation accurately. He knew, moreover, that prosecutions for treason might be instituted thereafter in other parts of the country, particularly in New England. The Federalist leaders in that section had already spoken and written sentiments as disloyal, essentially, as those now attributed to Burr; and, at that very time, when the outcry against Burr was loudest, they were beginning to revive their project of seceding from the Union.[1188]To so excellent a politician and so far-seeing a statesman as Marshall, it must have seemed probable that his party friends in New England might be brought before the courts to answer to the same charge as that against Aaron Burr.

At all events, he took, at this time, a wise and characteristically prudent step. Four days after the news of the Chesapeake affair reached Richmond, the Chief Justice asked his associates on the Supreme Bench for their opinion on the law of treason as presented in the case of Aaron Burr. "I am aware," he wrote, "of the unwillingness with which a judge will commit himself by an opinion on a case not before him, and on which he has heard no argument. Could this case be readily carried before the Supreme Court, I would not ask an opinion in its present stage. But these questions must be decided by the judges separately on their respective circuits, and I am sure that there would be a strong and general repugnance to giving contradictory decisions on the same points. Such a circumstance would be disreputable to the judges themselves as well as to our judicial system. This suggestion suggests the propriety of a consultation on new and different subjects and will, I trust, apologize for this letter."[1189]

Whether a consultation was held during the five weeks that the Burr trial was suspended is not known. But if the members of the Supreme Court did not meet the Chief Justice, it would appear to be certain that they wrote him their views of the American law of treason; and that, in the crucial opinion which Marshall delivered on that subject more than two months after he had written to his associates, he stated their mature judgments as well as his own.

It was, therefore, with a composure, unwonted even for him, that Marshall again opened court on August 3, 1807. The crowd was, if possible, greater than ever. Burr entered the hall with his son-in-law, Governor Alston.[1190]Not until a week later was counsel for the Government ready to proceed. When at last the men summoned to serve on the petit jury were examined as to their qualifications, it was all but impossible to find one impartial man among them—utterly impossible to secure one who had not formed opinions from what, for months, had been printed in the newspapers.

Marshall described with fairness the indispensable qualifications of a juror.[1191]Men were rejected as fast as they were questioned—all had read the stories and editorial opinions that had filled the press, and had accepted the deliberate judgment of Jefferson and the editors; also, they had been impressed by the public clamor thus created, and believed Burr guilty of treason. Out of forty-eight men examined during the first day, only four could be accepted.[1192]

While the examination of jurors was in progress, one of the most brilliant debates of the entire trial sprang up, as to the nature and extent of opinions formed which would exclude a man from serving on a jury.[1193]

When Marshall was ready to deliver his opinion, he had heard all the reasoning that great lawyers could give on the subject, and had listened to acute analyses of all the authorities. His statement of the law was the ablest opinion he had yet delivered during the proceedings, and is an admirable example of his best logical method. It appears, however, to have been unnecessary, and was doubtless delivered as a part of Marshall's carefully considered plan to go tothe extreme throughout the trial in the hearing and examination of every subject.[1194]

For nearly two weeks the efforts to select a jury continued. Not until August 15 were twelve men secured, and most of these avowed that they had formed opinions that Burr was a traitor. They were accepted only because impartial men could not be found.

When Marshall finished the reading of his opinion, Hay promptly advised Jefferson that "the [bi]as of Judge Marshall is as obvious, as if it was [stam]ped upon his forehead.... [He is] endeavoring to work himself up to a state of [f]eeling which will enable [him] to aid Burr throughout the trial, without appearing to be conscious of doing wrong. He [Marshall] seems to think that his reputation is irretrievably gone, and that he has now nothing to lose by doing as he pleases.—His concern for Burr is wonderful. He told me many years ago, when Burr was rising in the estimation of the republican party, that he was as profligate in principle, as he was desperate in fortune. I remember his words. They astonished me.

"Yet," complained Hay, "when the Gr: Jury brought in their bill the Chief Justice gazed at him, for a long time, without appearing conscious that he was doing so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit withoutpalpableemotion. If Mr. Burr has any feeling left, yesterday must have been a day of agonizing humiliation," because the answers of thejurors had been uniformly against him; and Hay gleefully relates specimens of them.

"There is but one chance for the accused," he continued, "and that is a good one because it rests with the Chief Justice. It is already hinted, but not by himself [that] the decision of the Supreme Court will no[t be] deemed binding. If the assembly of men on [Blennerhassett's is]land, can be pronounced 'not an overt act' [it will] be so pronounced."[1195]

Hay's opening statement to the jury was his best performance of the entire proceedings. He described Burr's purpose in almost the very words of Jefferson's Special Message. The gathering on Blennerhassett's island was, he said, the overt act; Burr, it was true, was not there at the time, but his presence was not necessary. Had not Marshall, in the Bollmann and Swartwout case, said that "if war be actually levied, ...all those who perform any part, however minute, orhowever remote from the scene of action, and who are actuallyleagued in the general conspiracy, are to be consideredastraitors"?[1196]

The examination of the Government's witnesses began. Eaton took the stand; but Burr insisted that the overt act must be proved before collateral testimony could be admitted. So came the first crossing of swords over the point that was to save the life of Aaron Burr. The arguments of counsel were brilliant; but neither side forgot the public. They must thrill the audience as well as convince the court. "There had been a great deal of war in the newspapers," said Wickham, but everybody knew "that there had been no war in fact." Wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." Martin pointed out that Eaton's testimony did not "relate to anyactscommitted any where, but to mere declarations out of the district."[1197]Let the evidence be pertinent. The indictment charged a specific act, and it must be proved as charged. No man could be expected suddenly to answer for every act of his life. If Burr had planned to free Mexico and had succeeded, "he would have merited the applause of the friends of liberty and of posterity; ... but his friends may now pray that he may not meet the fate that Washington himself would have met, if the revolution had not been established."

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