History of the United States During the Administrations of Thomas Jefferson/Second/I:19


Chapter 19: Burr's TrialEdit

March 30, 1807, in a room at the Eagle Tavern in Richmond, Aaron Burr was brought before Chief-Justice Marshall for examination and commitment. Although Burr had been but a few days in the town, he was already treated by many persons as though he had conferred honor upon his country. Throughout the United States the Federalists, who formed almost the whole of fashionable society, affected to disbelieve in the conspiracy, and ridiculed Jefferson's sudden fears. The Democrats had never been able to persuade themselves that the Union was really in danger, or that Burr's projects, whatever they were, had a chance of success; and in truth Burr's conspiracy, like that of Pickering and Griswold, had no deep roots in society, but was mostly confined to a circle of well-born, well-bred, and well-educated individuals, whose want of moral sense was one more proof that the moral instinct had little to do with social distinctions. In the case of Burr, Jefferson himself had persistently ignored danger; and no one denied that if danger ever existed, it had passed. Burr was fighting for his life against the power of an encroaching government; and human nature was too simply organized to think of abstract justice or remote principles when watching the weak fight for life against the strong. Even the Democrats were more curious to see Burr than to hang him; and had he gone to the gallows, he would have gone as a hero, like Captain Macheath amidst the admiring crowds of London.

Between Captain Macheath and Colonel Burr was more than one point of resemblance, and the "Beggar's Opera" could have been easily paralleled within the prison at Richmond; but no part of Burr's career was more humorous than the gravity with which he took an injured tone, and maintained with success that Jefferson, being a trivial person, had been deceived by the stories of Eaton and Wilkinson, until, under the influence of causeless alarm, he had permitted a wanton violation of right. From the first step toward commitment, March 30, to the last day of the tedious trials, October 20, Burr and his counsel never ceased their effort to convict Jefferson; until the acquittal of Burr began to seem a matter of secondary importance compared with the President's discomfiture.

Over this tournament the chief-justice presided as arbiter. Blennerhassett's island, where the overt act of treason was charged to have taken place, lay within the chief-justice's circuit. According as he might lean toward the accused or toward the government, he would decide the result; and therefore his leanings were a matter of deep interest. That he held Federalist prejudices and nourished a personal dislike to Jefferson was notorious; but apart from political feelings he had given no clew to his probable legal bias except in his recent decision upon the case of Bollman and Swartwout. In discharging these two agents of Burr on the ground that no overt act of levying war was alleged against them, Marshall had taken occasion to define the law of treason as a guide to the attorney-general in the coming indictment of Burr:—

"It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied,—that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose,—all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men for the treasonable purpose, to constitute a levying of war."

On the strength of this opinion, the attorney-general undertook to convict Burr of treason for the acts committed under his direction at Blennerhassett's island, although at the time when these acts were committed Burr himself was in Kentucky, two hundred miles away.

The task was difficult, and Burr's experience as a lawyer enabled him to make it more difficult still. He retained the ablest counsel at the bar. First of these was Edmund Randolph, prominent among the older Virginia lawyers, who had been attorney-general and Secretary of State in President Washington's Cabinet. Edmund Randolph's style of address was ponderous, and not always happy; to balance its defects Burr employed the services of John Wickham, another Virginian, whose versatility and wit were remarkable. A third Virginian, Benjamin Botts, was brought into the case, and proved a valuable ally. Finally Luther Martin was summoned from Baltimore; and Martin's whole heart was with his client. In defending Justice Chase, Luther Martin had made a great name; but hatred for the Democrats and their President became a secondary passion in his breast. His zeal for Burr was doubled by a sudden idolatry which the sexagenarian conceived for Burr's daughter Theodosia, who came to her father's side at Richmond.

The government was represented by no one of equal force with these opponents. John Breckinridge, the Attorney-General of the United States, died in December, 1806. Jan. 20, 1807, President Jefferson appointed Cæsar A. Rodney to the post. Although Rodney's abilities were respectable, he could hardly have wished to be confronted at once by the most important and difficult State prosecution ever tried under Executive authority. Rodney's duties or his health prevented him from attendance. He barely appeared at Richmond in the preliminaries, and then left the case in the hands of the district-attorney, George Hay, who took his orders directly from Jefferson, with whom he was in active correspondence. To assist Hay the President engaged the services of William Wirt, then thirty-five years old, and promising to become an ornament to the bar; but in the profession of the law age gave weight, and Wirt, though popular, conscientious, admired, and brilliant in a florid style of oratory, suffered as a lawyer from his youth and his reputation as an orator. He was hardly more capable than Hay of conducting a case which drew upon every resource of personal authority. The third counsel, Alexander McRae, Lieutenant-Governor of Virginia, was inferior both in ability and in tact to either of his associates. His temper irritated Hay and offended the Court, while his arguments added little strength to the prosecution.

The first object of the government was to commit Burr for trial on the charge of treason as well as of misdemeanor; but Marshall promptly checked all hopes of obtaining aid from the court. April 1 the chief-justice delivered an opinion on the question of commitment, and took that opportunity to give the district-attorney a warning. Declining to commit Burr for treason without evidence stronger than the affidavits of Eaton and Wilkinson, Marshall blamed the Executive with asperity for neglect of duty in providing proof of treason:—

"Several months have elapsed since this fact did occur, if it ever occurred. More than five weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the fact if it exists. Why is it not proved? To the Executive government is intrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety. It would be easy in much less time than has intervened since Colonel Burr has been alleged to have assembled his troops, to procure affidavits establishing the fact."

Accordingly Burr was committed only for misdemeanor, and five securities immediately offered themselves on his behalf. At three o'clock on the afternoon of April 1 he was again at liberty, under bonds for ten thousand dollars to appear at the next circuit court, May 22, at Richmond.

Marshall's reproof of Executive slowness was not altogether respectful to the co-ordinate branch of government. No doubt treasonable assemblages had taken place in December, and affidavits could have been brought from Marietta or Nashville within six or eight weeks had the government known precisely what would be needed, or where the evidence was to go; but no judge could reasonably require that the Executive should within five weeks obey a hint from the Supreme Court which implied a long correspondence and inquiry at spots so remote as Blennerhassett's island, Lexington, Nashville, Fort Massac, and Chickasaw Bluffs. Jefferson was naturally indignant at being treated with so little courtesy. He wrote with extreme bitterness about Marshall's "tricks to force trials before it is possible to collect the evidence."[1] He returned threat for threat, with something in addition:—

"In what terms of decency can we speak of this? 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! . . . All this, however, will work well. The nation will judge both the offender and judges for themselves. If a member of the Executive or Legislature 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. They will see that one of the great co-ordinate branches of the government, setting itself in opposition to the other two and to the common-sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are protected in it by the Constitution itself; for impeachment is a farce which will not be tried again. If their protection of Burr produces this amendment, it will do more good than his condemnation would have done; . . . and if his punishment can be commuted now for a useful amendment of the Constitution, I shall rejoice in it."

In substance Jefferson said that if Marshall should suffer Burr to escape, Marshall himself should be removed from office. No secret was made of this intention. The letter in which Jefferson announced the threat was written to the Virginia senator William B. Giles, who had been foremost in every attack upon the Judiciary, and would certainly lead the new one; but Giles was not the confidant of a secret,—the idea was common, as Marshall knew. The little society that swarmed in the court-room and in the streets of Richmond could see without an effort that the President courted a challenge from Marshall, and that the chief-justice on his side, for a second or third time, welcomed a trial of skill and address with the President. If Marshall was in truth the gloomy and malignant conspirator that Jefferson imagined him to be, he might easily excuse or justify the President's intended course.

Punctually, May 22, the next act began. The question of commitment had been a matter of no great consequence; that of indictment was vital. Burr must be indicted, not merely for misdemeanor, but for treason; and to leave no doubt of success, the government summoned a cloud of witnesses to appear before the grand jury. The town swarmed with conspirators and government agents. The grand jury—containing some of the most respected citizens of Virginia—was sworn, and the court instructed the clerk to place John Randolph as foreman. A long delay ensued. General Wilkinson, the most important witness for government, was on his way from New Orleans; and while waiting his arrival from day to day, the grand jury took evidence and the court listened to the disputes of counsel. The district-attorney moved to commit Burr on the charge of treason, while Burr on his side moved for a subpœna duces tecum to be directed to the President, requiring him to produce certain papers in evidence. This motion was evidently part of a system adopted by the defence for annoying and throwing odium on the Executive,—a system which Burr's counsel rather avowed than concealed, by declaiming against the despotism of government and the persecution of which Burr was a victim. Luther Martin, at the first moment of his appearance in court, launched into an invective against Jefferson:—

"The President has undertaken to prejudge my client by declaring that 'of his guilt there can be no doubt.' He has assumed the knowledge of the Supreme Being himself, and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of that country which has rewarded him. He has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?"
A long argument followed. Hay, while admitting that the President might be generally subpœnaed as a witness, held that no need of a subpœna had been shown, and that in any case a subpœna duces tecum ought not to be issued. The chief-justice, after hearing counsel on both sides, read June 13 an elaborate decision, which settled the point in Burr's favor.
"If upon any principle," said he, "the President could be construed to stand exempt from the general provisions of the Constitution, it would be because his duties as chief magistrate demand his whole time for national objects. But it is apparent that this demand is not unremitting; and if it should exist at the time when his attendance on a court is required, it would be sworn on the return of the subpœna, and would rather constitute a reason for not obeying the process of the court than a reason against its being issued. . . . It cannot be denied that to issue a subpœna to a person filling the exalted station of the chief magistrate is a duty which would be dispensed with much more cheerfully than it would be performed; but if it be a duty, the court can have no choice in the case."

Nothing could irritate Jefferson more sensibly than this decision. Only a few months before, in the trial of Smith and Ogden for complicity with Miranda, he had ordered his Cabinet to disregard the summons of the court. Luther Martin did not fail to fling reproach on him for this act. "In New York, on the farcical trial of Ogden and Smith, the officers of the government screened themselves from attending, under the sanction of the President's name. Perhaps the same farce may be repeated here." To be insulted by Martin and to be ordered about the country by Marshall, exasperated Jefferson beyond reason. He wrote letter after letter to Hay, filled with resentment:—

"The leading feature of our Constitution is the independence of the Legislature, Executive, and Judiciary of each other; and none are more jealous of this than the Judiciary. But would the Executive be independent of the Judiciary if he were subject to the commands of the latter, and to imprisonment for disobedience; if the smaller courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his executive duties?"[2]

The Judiciary never admitted the propriety of this reasoning,[3] which was indeed no answer to Marshall's argument. Unless the President of the United States were raised above the rank of a citizen, and endowed with more than royal prerogatives, no duty could be more imperative upon him than that of lending every aid in his power to the Judiciary in a case which involved the foundations of civil society and government. No Judiciary could assume at the outset that Executive duties would necessarily be interrupted by breaking Jefferson's long visits to Monticello in order to bring him for a day to Richmond. Consciousness of this possible rejoinder disturbed the President's mind so much that he undertook to meet it in advance:—

"The Judge says 'it is apparent that the President's duties as chief magistrate do not demand his whole time, and are not unremitting.' If he alludes to our annual retirement from the seat of government during the sickly season, he should be told that such arrangements are made for carrying on the public business, at and between the several stations we take, that it goes on as unremittingly there as if we were at the seat of government."

The district-attorney would hardly have dared tell this to the chief-justice, for he must have felt that Marshall would treat it as an admission. If arrangements could be made for carrying on the public business at Monticello, why could they not be made for carrying it on at Richmond?

Perhaps temper had more to do with Jefferson's reasoning than he imagined. Nothing could be better calculated to nettle a philosophic President who believed the world, except within his own domain, to be too much governed, than the charge that he himself had played the despot and had trampled upon private rights; but that such charges should be pressed with the coarseness of Luther Martin, and should depend on the rulings of John Marshall, seemed an intolerable outrage on the purity of Jefferson's intentions. In such cases an explosion of anger was a common form of relief. Even President Washington was said to have sometimes dashed his hat upon the ground, and the second President was famous for gusts of temper.

"I have heard, indeed," wrote Jefferson,[4] "that my predecessor sometimes decided things against his Council by dashing and trampling his wig on the floor. This only proves, what you and I knew, that he had a better heart than head."

Wigs were Federalist symbols of dignity and power. Republicans wore no wigs, and could use no such resource in moments of rage; but had President Jefferson worn the full paraphernalia of Federalism,—wig and powder, cocked hat and small sword,—he would never have shown his passion in acts of violence or in physical excitement. His sensitiveness relieved itself in irritability and complaints, in threats forgotten as soon as uttered, or in reflections tinged with a color of philosophic thought. His first impulse was to retaliate upon Martin and thrust him into the criminal dock. He wrote to Hay,[5]

"Shall we move to commit Luther Martin as particeps criminis with Burr? Graybell will fix upon him misprision of treason at least. And at any rate his evidence will put down this unprincipled and impudent Federal bulldog, and add another proof that the most clamorous defenders of Burr are all his accomplices."

To the attorney-general he wrote in the same words:[6] "I think it material to break down this bulldog of Federalism." Jefferson's irritation rarely lasted long, and it evaporated with these words. Martin railed unmolested.

No one fretted by personal feeling could cope with the Rhadamanthine calm of John Marshall. The President could not successfully strike back; he was fortunate if he should succeed in warding off his enemies' blows. In the midst of these controversies and irritations, June 15, General Wilkinson arrived. The audiences which in those days still crowded to the theatre and laughed at the extraordinary wit and morality of the "Beggar's Opera," found none of its possible allusions more amusing than the often-quoted line which seemed meant to point at James Wilkinson. "That Jemmy Twitcher should peach me, I own surprised me. 'Tis a plain proof that the world is all alike, and that even our gang can no more trust one another than other people." Wilkinson had not a friend; even Daniel Clark turned against him. To break him down, to prove by his own confession that he was a pensioner of Spain and an accomplice with Burr, was the known object of the defence; but the disgrace of Wilkinson would also discredit the President and shake the Administration which Wilkinson had saved. Whatever the consequences might be, Jefferson could not allow Wilkinson to suffer.

When Major Bruff, of the artillery, came from St. Louis to Washington early in March, 1807, three months before Burr's indictment, he made bitter complaints to the Secretary of War, accusing the general, under whose orders he served, of being a spy of Spain and a traitor with Burr.[7] General Dearborn listened without contradiction, and replied that there had been a time when General Wilkinson did not stand well with the Executive, but his energetic measures at New Orleans had regained him Executive confidence, and the President would sustain him; that after the actual bustle was over there might perhaps be an inquiry, but meanwhile Wilkinson must and would be supported. Attorney-General Rodney went even further.

"What would be the result," he asked Bruff, "if all your charges against General Wilkinson should be proven? Why, just what the Federalists and the enemies of the present Administration wish,—it would turn the indignation of the people from Burr on Wilkinson. Burr would escape, and Wilkinson take his place."

Rodney did not add, what was patent to all the world, that if Wilkinson were to be convicted. President Jefferson himself, whose negligence had left the Western country, in spite of a thousand warnings, at the General's mercy, could not be saved from the roughest handling. The President and his Cabinet shrank from Marshall's subpoenas because under the examination of Wickham, Botts, and Luther Martin they would be forced either to make common cause with the General, or to admit their own negligence. The whole case hung together. Disobedience of the subpoena was necessary for the support of Wilkinson; support of Wilkinson was more than ever necessary after refusing to obey the subpœna. The President accepted his full share in the labor. No sooner did he hear of Wilkinson's arrival, at the moment when his own subpœna was issued and defied, than he wrote a letter calculated to give the General all the confidence he needed:[8]

"Your enemies have filled the public ear with slanders and your mind with trouble on that account. The establishment of their guilt will let the world see what they ought to think of their clamors; it will dissipate the doubts of those who doubted for want of knowledge, and will place you on higher ground in the public estimate and public confidence. No one is more sensible than myself of the injustice which has been aimed at you. Accept, I pray you, my salutations and assurances of respect and esteem."

As an American citizen Jefferson had the right to respect and esteem whom he pleased, and need not even excuse his friendships. The world often loved and cherished its worst rogues,—its Falstaffs, Macheaths, and Burrs,—and Jefferson was not exempt from such weakness; but that his respect and esteem for Wilkinson should require him to retain a pensioned Spanish spy and a confederate with Burr and Dayton at the head of the United States army during several years of extreme public danger, was a costly consequence to the people whose confidence Jefferson claimed and held. John Randolph saw this point clearly, and his bloodhound instinct detected and followed, without hesitation, the trail that led to the White House. Whether the chief-justice intended it or not, he never struck Jefferson a blow so mischievous as when he directed the clerk to place John Randolph as foreman of the grand jury.[9] Randolph's nature revolted from Wilkinson; and if the President and the General could be gibbeted together, Randolph was the man to do it.

Such was the situation when the General was sworn and sent before the grand jury June 15, where his appearance, if his enemy could be believed, was abject.

"Under examination all was confusion of language and of looks," wrote Randolph to Nicholson. [10] "Such a countenance never did I behold; there was scarcely a variance of opinion among us as to his guilt. Yet this miscreant is hugged to the bosom of Government while Monroe is denounced."

Randolph ardently wished to indict the General at the same time with Burr; and while he strained every nerve to effect this purpose in the grand-jury room, Burr and his counsel in the court-room moved for an attachment against Wilkinson for attempting to obstruct the free course of justice by oppression of witnesses. The district-attorney resisted both attempts with all his authority; and June 24, to the disappointment of his enemies, Wilkinson escaped.

"Yesterday," wrote Randolph, June 25,[11] "the grand jury found bills for treason and misdemeanor against Burr and Blennerhassett una voce, and this day presented Jonathan Dayton, ex-senator, John Smith of Ohio, Comfort Tyler, Israel Smith of New York, and Davis Floyd of Indiana, for treason; but the mammoth of iniquity escaped,—not that any man pretended to think him innocent, but upon certain wire-drawn distinctions that I will not pester you with. Wilkinson is the only man that I ever saw who was from the bark to the very core a villain. The proof is unquestionable; but, my good friend, I cannot enter upon it here. Suffice it to say that I have seen it, and that it is not susceptible of misconstruction. Burr supported himself with great fortitude. He was last night lodged in the common town jail (we have no State prison except for convicts), where I daresay he slept sounder than I did. Perhaps you never saw human nature in so degraded a situation as in the person of Wilkinson before the grand jury; and yet this man stands on the very summit and pinnacle of Executive favor, while James Monroe is denounced."

In the debates of the next session, when Randolph followed up his attacks on Jefferson by trying to identify him with Wilkinson's misdeeds, a fuller account was given of the plea which saved Wilkinson from presentment.

"There was before the grand jury," said Randolph,[12] "a motion to present General Wilkinson for misprision of treason. This motion was overruled upon this ground,—that the treasonable (overt) act having been alleged to be committed in the State of Ohio, and General Wilkinson's letter to the President of the United States having been dated, though but a short time, prior to that act, this person had the benefit of what lawyers would call a legal exception, or a fraud; but I will inform the gentleman that I did not hear a single member of the grand jury express any other opinion than that which I myself expressed, of the moral, not of the legal, guilt of the party."

In the evidence taken by a Congressional committee in 1811 regarding Wilkinson,[13] several members of the grand jury were called to testify; and their accounts showed that the motion to present General Wilkinson for misprision of treason was made by Littleton W. Tazewell, and supported by Randolph and three or four other members of the grand jury. One witness thought that the vote stood 9 to 7.

Narrow though the loophole might be, Wilkinson squeezed through it. The indictment of Burr was at length obtained. The conspirators, who had at first vehemently averred that Wilkinson would never dare to appear, and who if he should appear intended to break him down before the grand jury, were reduced to hoping for revenge when he should come on the witness-stand. Meanwhile, June 26, Burr pleaded not guilty, and the court adjourned until August 3, when the trial was to begin.

Thus far the President had carried everything before him. He had produced his witnesses, had sustained Wilkinson, indicted Burr, and defied Marshall's subpœnas. This success could not be won without rousing passion. Richmond was in the hands of the conspirators, and they denounced Jefferson publicly and without mercy, as they denounced Wilkinson and every other government officer.

"As I was crossing the court-house green," said an eye-witness,[14] "I heard a great noise of haranguing some distance off. Inquiring what it was, I was told it was a great blackguard from Tennessee, one Andrew Jackson, making a speech for Burr and damning Jefferson as a persecutor."

Hay wrote to the President, June 14:[15]

"General Jackson, of Tennessee, has been here ever since the 22d, denouncing Wilkinson in the coarsest terms in every company. The latter showed me a paper which at once explained the motive of this incessant hostility. His own character depends on the prostration of Wilkinson's."
This paper was no doubt Jackson's secret denunciation to Claiborne. Young Samuel Swartwout, who had some reason to complain of the ridiculous figure he had been made to cut, jostled Wilkinson in the street, and ended by posting him for a coward. John Randolph echoed Luther Martin's tirades against the President. Randolph was in despair at Jefferson's success.
"My friend," he wrote to Nicholson,[16] "I am standing on the soil of my native country divested of every right for which our fathers bled. Politics have usurped the place of law, and the scenes of 1798 are again revived. Men now see and hear, and feel and think, politically. Maxims are now advanced and advocated which would almost have staggered the effrontery of Bayard or the cooler impudence of Chauncey Goodrich when we were first acquainted."

All this work was but skirmishing. The true struggle had still to come. So long as the President dealt only with grand jurors and indictments, he could hardly fail to succeed; but the case was different when he dealt directly with Chief-Justice Marshall and with the stubborn words of the Constitution, that "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." The district-attorney was ready with a mass of evidence, but the chief-justice alone could say whether a syllable of this evidence should be admitted; and hitherto the chief-justice had by no means shown a bias toward the government. Hay was convinced that Marshall meant to protect Burr, and he wrote to the President on the subject:[17]

"The bias of Judge Marshall is as obvious as if it was stamped upon his forehead. I may do him injustice, but I do not believe that I am, when I say that he is endeavoring to work himself up to a state of f[irmness?] which will enable [him] to aid Burr throughout the trial without appearing to be conscious of doing wrong. He 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 Mr. 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 when the grand 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 and sorrow as strong as the human countenance can exhibit without palpable emotion."

August 3 the court opened its session and the trial began. Not until August 17 was the jury impanelled; and meanwhile a new figure appeared at Burr's side. Blennerhassett arrived in Richmond August 4, and was brought before the court August 10. He began at once a private journal of the trial, which remained the only record of what passed among the conspirators. As each witness appeared, Blennerhassett told the gossip regarding him.

"The once redoubted Eaton,"[18] who was put first upon the stand, "has dwindled down in the eyes of this sarcastic town into a ridiculous mountebank, strutting about the streets under a tremendous hat, with a Turkish sash over colored clothes, when he is not tippling in the taverns, where he offers up with his libations the bitter effusions of his sorrows."

"Old sly-boots" Dayton,[19] he said, was lurking about corners.

Wilkinson[20] "exhibited the manner of a sergeant under a court-martial rather than the demeanor of an accusing officer confronted with his culprit. His perplexity and derangement, even upon his direct examination, has placed beyond all doubt 'his honor as a soldier and his fidelity as a citizen.'"

These comments were sharp, yet the pages of

Blennerhassett's diary were not so severe upon any of the witnesses for the government as they were upon Burr himself. Blennerhassett had wakened to the discovery that Burr was, after all, but a vulgar swindler. The collapse of Burr's courage when confronted by Cowles Meade and the Mississippi militia at Cole's Creek January 17; his desertion of Blennerhassett and his flight toward Spanish territory; the protest of the bills which he had drawn on pretended funds in New York, and which Blennerhassett had indorsed under Allston's guaranty; the evident wish of Allston to repudiate this guaranty as he had repudiated Burr; and the ruin which had fallen on Blennerhassett's property at the island,—taught the Irishman how thoroughly he had been duped:[21]
"The present trial cannot fail to furnish ample testimony, if not to the guilt, at least to the defect of every talent under the assumption of which this giddy adventurer has seduced so many followers of riper experience and better judgment than myself."

Yet Burr's mastership in deportment, his superficial dignity, his cheerfulness and sanguine temperament, and the skill with which he managed legal tactics, made an impression on Blennerhassett's mind:—

"As a jockey might restore his fame in the course after he had injured it on the tight-rope, so, perhaps, the little 'Emperor' at Cole's Creek may be forgotten in the attorney at Richmond."[22]

For a few days the trial went on undisturbed, while the government put Eaton, Truxton, Peter Taylor, the Morgans, and a number of other witnesses on the stand to prove an overt act of treason at Blennerhassett's island; but nothing short of Blennerhassett's own confession could place the matter in a clear light, and Burr's chief fear was evidently that Blennerhassett should turn State's evidence. To prevent this, Allston was persuaded to pay the more pressing demands against Blennerhassett, and Burr exerted himself to conciliate him. On the other hand, Jefferson seemed to hope that he could be won over.[23] Duane, of the "Aurora," visited him in prison August 23, and offered to serve as an intermediary with the government.[24] Had matters gone as the President hoped, something might have come of this manœuvre; but before further pressure could be employed, the chief-justice struck the prosecution dead.

August 19 Burr's counsel suddenly moved to arrest the evidence. The government, they said, had gone through all its testimony relating to the overt act charged in the indictment; it admitted that Burr was hundreds of miles distant from the scene; and as the district-attorney was about to introduce collateral testimony of acts done beyond the jurisdiction of the court, it became the duty of the defence to object.

For ten days this vital point was argued. All the counsel on either side exerted themselves to the utmost. Wickham's opening speech on the nature of

treason was declared by as good a judge as Littleton Tazewell to be "the greatest forensic effort of the American bar." [25] Luther Martin spoke fourteen hours, beginning with an almost passionate allusion to his idol Theodosia. William Wirt exhausted his powers of argument and oratory, and in the course of his address made the rhetorical display which became familiar to every American, and which introduced a sort of appeal to Blennerhassett to turn against the more guilty crew who were trying to sacrifice him to save themselves:—
"Who is Blennerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours."

George Hay was neither so efficient nor so dexterous as Wirt, and either intentionally or by awkwardness succeeded in giving the impression of threatening the court:[26]

"Mr. Bott says that we are now advocating opinions which on Fries' trial we condemned. . . . I beg leave to assure the gentleman that the censure which the judge drew on himself was not on account of his opinions, however incorrect they might be, but for his arbitrary and irregular conduct at the trial, which was one of the principal causes for which he was afterward impeached. He attempted to wrest the decision from the jury, and prejudge the case before hearing all the evidence in it,—the identical thing which this court is now called on by these gentlemen to do."

That Hay, knowing well Jefferson's thoughts and the magic that hung about the word "impeachment," should have used these words inadvertently seemed hardly credible. If he did so, his clumsiness was as offensive as the threat could have been, for the idea of impeachment was in the air of the court-house. Burr's counsel at once retaliated.[27] "It was very kind of the gentleman to remind the court of the danger of a decision of the motion in favor of the prisoner." Hay protested that he had spoken innocently, and the chief-justice said that the allusion had not been taken as personal; but the unpleasant impression remained. "The gentleman plainly insinuated the possibility of danger to the court," persisted the defence; and Luther Martin added,[28]

"I do not know whether it were intended by this observation that your honors should be apprehensive of an impeachment in case you should decide against the wishes of the government. I will not presume that it was used with that view, but it is susceptible of being so misunderstood, however innocently or inadvertently it may have been made."

August 31 the chief-justice read his decision. Much the longest of Marshall's judicial opinions; elaborately argued, with many citations, and with less simple adherence to one leading thought than was usual in his logic,—this paper seemed, in the imagination of Marshall's enemies, to betray a painful effort to reconcile his dictum in Bollman's case with the exclusion of further evidence in the case of Burr. To laymen, who knew only the uncertainties of law; who thought that the assemblage on Blennerhassett's island was such an overt act as might, without violent impropriety, be held by a jury to be an act of levying war; and who conceived that Burr, although absent from the spot, was as principal present in a legal sense such as would excuse a jury in finding him guilty,—an uneasy doubt could not fail to suggest itself that the chief-justice, with an equal effort of ingenuity, might have produced equal conviction in a directly opposite result. On the other hand, the intent of the Constitution was clear. The men who framed that instrument 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. No one could doubt that their sympathies, at least in 1788, when the Constitution was framed, would have been on the side of Marshall's decision. If Jefferson, since 1788, had changed his point of view, the chief-justice was not under obligations to imitate him.

"If it be said that the advising or procurement of treason is a secret transaction which can scarcely ever be proved in the manner required by this opinion, the answer which will readily suggest itself is that the difficulty of proving a fact will not justify conviction without proof."

At the close of his decision the chief-justice, with simple dignity which still compels respectful admiration, took up the gauntlet which the district-attorney had flung at his feet. As though turning from the crowd in the court-room to look for a moment directly into the eyes of the President, the threatened chief-justice uttered a few words that were at once answer and defiance:—

"Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly, but which may perhaps not improperly receive some notice.
"That this Court dares not usurp power is most true; that this Court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation; no man is desirous of becoming the peculiar subject of calumny; no man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom; but if he has no choice in the case,—if there is no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world,—he merits the contempt as well as the indignation of his country who can hesitate which to embrace. . . .
"No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transactions on Blennerhassett's island can be admitted; because such testimony, being in its nature merely corroborative, and incompetent to prove the overt act in itself, is irrelevant until there be proof of the overt act by two witnesses."

On the following day, September 1, District-Attorney Hay abandoned the case, and the jury entered a verdict of "Not guilty." Hay instantly reported to Monticello the result of his efforts, and added criticisms upon Marshall:[29]

"Wirt, who has hitherto advocated the integrity of the chief-justice, now abandons him. This last opinion has opened his eyes, and he speaks in the strongest terms of reprobation."

September 4 Jefferson replied in the tone which always accompanied his vexation:[30]

"Yours of the 1st came to hand yesterday. The event has been what was evidently intended from the beginning of the trial; that is to say, not only to clear Burr, but to prevent the evidence from ever going before the world. But this latter case must not take place. It is now, therefore, more than ever indispensable that not a single witness be paid or permitted to depart until his testimony has been committed to writing. . . . These whole proceedings will be laid before Congress, that they may decide whether the defect has been in the evidence of guilt, or in the law, or in the application of the law, and that they may provide the proper remedy for the past and the future."

Accordingly, although the trial for treason was at an end, the district-attorney pressed the indictment for misdemeanor; and until October 19 the chief-justice was occupied in hearing testimony intended for use not against Burr, but against himself. Then at last the conspirators were suffered to go their way, subject to legal proceedings in Ohio which the government had no idea of prosecuting; while the President, mortified and angry, prepared to pursue Marshall instead of Burr. The Federalists, who always overrated the strength of party passions, trembled again for the Judiciary; but in truth nothing was to be feared. The days of Jefferson's power and glory had passed forever, while those of Marshall had barely begun. Even on the testimony, the President's case was far from being so clear as he had hoped and expected. His chief witness, Wilkinson, could only with difficulty be sustained; and the district-attorney, who began by pledging himself before the court to show the falsity of the charges which had been brought against the General, ended by admitting their truth.

"The declaration which I made in court in his favor some time ago," wrote Hay to the President at the close,[31] "was precipitate; and though I have not retracted it, everybody sees that I have not attempted the task which I in fact promised to perform. My confidence in him is shaken, if not destroyed. I am sorry for it, on his own account, on the public account, and because you have expressed opinions in his favor; but you did not know then what you will soon know, and what I did not learn until after—long after—my declaration above mentioned."

The hint was strong. If Wilkinson were discredited, Jefferson himself was in danger. To attack the Supreme Court on such evidence was to invite a worse defeat than in the impeachment of Chase. Meanwhile the country had graver dangers to think about, and enemies at its doors who were not to be curbed by proclamations or impeachments.


  1. Jefferson to W. B. Giles, April 20, 1807; Works, v. 65.
  2. Jefferson to Hay, June 20, 1807; Works, v. 102.
  3. U. S. vs. Kendall, Cranch's Circuit Court Reports, v. 385.
  4. Jefferson to William Short, June 12, 1807; Works, v. 93. Cf. Jefferson MSS.
  5. Jefferson to Hay, June 19, 1807; Works, v. 98.
  6. Jefferson to Rodney, June 19, 1807; Jefferson MSS.
  7. Major Bruff's Testimony, Burr's Trial; Annals of Congress, 1807-1808, pp. 598-600.
  8. Jefferson to Wilkinson, June 21, 1807; Works, v. 109.
  9. Wilkinson's Memoirs, ii. 6.
  10. Randolph to Nicholson, June 28, 1807; Nicholson MSS.
  11. Randolph to Nicholson, June 25, 1807; Nicholson MSS.
  12. Annals of Congress, Jan. 11, 1808; Session of 1807-1808, p. 1397.
  13. Report of the Committee appointed to inquire into the Conduct of General Wilkinson, Feb. 26, 1811, pp. 281, 298. Cf. National Intelligencer, Aug. 3, 1807.
  14. Parton's Life of Burr, ii. 107.
  15. Hay to Jefferson, June 14, 1807; Jefferson MSS.
  16. Randolph to Nicholson, June 25, 1807; Adams's Randolph, p. 221.
  17. Hay to Jefferson, Aug. 11, 1807; Jefferson MSS.
  18. Blennerhassett Papers, p. 315.
  19. Blennerhassett Papers, p. 397.
  20. Blennerhassett Papers, p. 422.
  21. Blennerhassett Papers, p. 373.
  22. Blennerhassett Papers, p. 343.
  23. Jefferson to Hay, Aug. 20, 1807; Works, v. 174.
  24. Blennerhassett Papers, p. 356.
  25. Grigsby's Tazewell, p. 73.
  26. Burr's Trial, ii. 193.
  27. Burr's Trial, ii. 238.
  28. Burr's Trial, ii. 369.
  29. Hay to Jefferson, Sept. 1, 1807; Jefferson MSS.
  30. Jefferson to Hay, Sept. 4, 1807; Works, v. 187. Cf. Jefferson MSS.
  31. Hay to Jefferson, Oct. 15, 1807; Jefferson MSS.