Transcriber’s Note

Table of Contents added by Transcriber

CONTENTS

AARON BURR
From an original drawing from nature, by Saint-Mémin

SHOUT
TREASON
The Trial of
Aaron Burr

by Francis F. Beirne

HASTINGS HOUSE · PUBLISHERS
NEW YORK

COPYRIGHT © 1959 by HASTINGS HOUSE, PUBLISHERS, INC.

All rights reserved. No part of this book
may be reproduced without
written permission of the publisher.

Published simultaneously in Canada by
S. J. Reginald Saunders, Publishers, Toronto 2B.

Library of Congress Catalog Card Number: 59-13552

Printed in the United States of America

Acknowledgments

The story of Aaron Burr has been treated exhaustively by many writers in many ways. Oddly enough, aside from the stenographic report of the proceedings and a small volume which appeared nearly a century ago, there seems to have been no work dealing alone with the subject of Burr’s trial in Richmond, Virginia, in the spring and summer of 1807, on charges of treason against the United States and high misdemeanor. Yet this marked the climax of Burr’s public career and the presence of a former Vice-President of the United States as the accused, charged with such serious crimes, of the Chief Justice of the United States on the bench, and of distinguished leaders of the bar represented both in the prosecution and defense made this the most dramatic case in the history of American jurisprudence.

It is true there is likely to be no better account of the trial than that of Albert J. Beveridge, on whom this author has leaned heavily in feeling his way through legal technicalities and to whom he makes grateful acknowledgment. This scholarly treatment, however, is buried in the middle of Senator Beveridge’s life of John Marshall where it cannot attract the attention it deserves from a larger audience both because of the trial’s historical importance and its human and spectacular qualities. It was with the idea of reaching the general reader that this work, striving for historical accuracy but relieved of confusing technicalities, was undertaken.

For valuable assistance in its preparation thanks are due the staffs of the Virginia Historical Society and the Valentine Museum, of Richmond; of the Enoch Pratt Free Library, the Peabody Library and the Maryland Historical Society, of Baltimore; and of the manuscript room of the Library of Congress. I am indebted to my wife, Rosamond Randall Beirne, for her patience and encouragement over the years the work was in progress and for the many hours of research she devoted to it; and to my sister, Lisa Beirne Leake, who made available her library rich in material on old Richmond. Mention should be made of the courtesy of Mr. John S. Stanley, former president of the Maryland State Bar Association, and of Mr. Douglas H. Gordon, also of that Association, in providing copies of their papers respectively on Luther Martin and John Marshall; and of Mr. Henry G. Alsberg, chief editor of Hastings House, for revealing notes on General Wilkinson.

For answering specific questions thanks are due Judge Brockenbrough Lamb, of the Chancery Court of Richmond, Mr. Arthur W. Machen Jr., of the Maryland Bar, and Mr. Walkley E. Johnson, Clerk of the United States Court for the Eastern District of Virginia. The last named gentlemen, however, did not see the manuscript and are not responsible for any technical errors that may appear in it.

FRANCIS F. BEIRNE

SHOUT TREASON
The Trial of Aaron Burr

Prologue

In his Critical and Historical Essays Lord Macaulay has left to posterity a vivid account of the opening of the impeachment proceedings against Warren Hastings, late Governor-General of India, before the House of Lords, for high crimes and misdemeanors allegedly committed during his incumbency.

The event took place on February 13, 1788. The scene was Westminster Hall, London, where thirty kings had been crowned and where Charles I faced his accusers. Macaulay tells us that the avenues were lined with grenadiers and kept clear by cavalry, for a great throng had assembled to view the spectacle.

Some 170 Lords, robed in gold and ermine, and marshaled by heralds under Garter King-at-Arms, marched in solemn order from their House to the tribunal. In the procession also were the judges in their vestments of state. Bringing up the rear were the Duke of Norfolk, the Earl Marshal, the brothers and sons of King George III, and, last of all, the Prince of Wales, “conspicuous for his fine person and noble bearing.”

The gray walls of the ancient building, says Macaulay, were hung with scarlet. Benches draped in red were provided for the Peers, and benches draped in green for the Commons. Seated in the galleries were the Queen, surrounded by the “fair-haired daughters of Brunswick,” the ambassadors and ministers of great countries, and such distinguished personages as Mrs. Siddons, the actress and beauty, Sir Joshua Reynolds, the artist, Georgiana Duchess of Devonshire, and other women of brilliance and fashion.

There, too, were the Managers, the great orators of the day—Edmund Burke, Charles James Fox, Richard Brinsley Sheridan, William Windham, and Charles Earl Grey. They were to conduct the prosecution.

There, too, in all his injured dignity was the man who was responsible for this glamorous exhibition of justice. Nearly eight years were to pass before the tedious performance came to a close and Warren Hastings went forth a free and vindicated man.

Meanwhile the world looked on at the drama. Not the least interested spectators were members of the bench and bar of the new nation across the sea. It had lately won its independence, but none the less, especially where the law was concerned, it clung to the tradition of its mother country.

Our ancestors brought English law with them when they founded the American colonies. During the colonial period those young men who could afford it journeyed to London to study the law at the Inns of Court. No revolution of a few years’ duration could sever this stout line of descent. No greater compliment could be paid an American lawyer than to remark that he was capable of holding his own with the best in the spirited forensic encounters in Westminster.

It was only natural that our American bar, reveling in the Hastings episode, should yearn to put on a similar show. It was inevitable that an opportunity would arrive.

It first presented itself in the case of Samuel Chase, a justice of the Supreme Court of the United States and an ardent and outspoken Federalist who did not hesitate to express his low opinion of Thomas Jefferson’s Republican administration even from the bench. The Republican leaders in Congress took up the challenge. In eight articles members of the House compressed all the complaints of his conduct that had been made since his appointment eight years before and laid the charges before the Senate of the United States.

On February 4, 1805, the Senate, sitting as a Court of Impeachments, convened to hear the case. Mark the influence of the trial of Warren Hastings. The Senate Chamber was remodeled for the occasion. In the center of the scene was the chair of the President of the Court—in this case the Vice-President of the United States. To his right and left were two rows of benches with desks, the whole covered with crimson cloth, like those of the Lords in the trial of Warren Hastings. These were for the thirty-four senators who were to sit in judgment. Facing them were three rows of benches arranged in tiers and covered with green cloth, as had been those of the Commons. These were for members of the House of Representatives. On either side of the chair of the presiding officer were inclosures covered with blue cloth; respectively for the Managers, who were to prosecute the case, and for the lawyers of the defense. Present, too, were the Chief Justice and the associate justices of the Supreme Court.

The young Republic, alas, could produce no peers in gold and ermine. There were no brothers and sons of a ruling monarch, nor an heir apparent conspicuous for his fine person and noble bearing. Nor could the raw and straggling community that then went under the name of Washington present the same array of genius and fashion as London. But it did the best it could with the raw material it had. In the Senate Chamber a temporary gallery had been erected. Here were boxes provided with comfortable seats from which ladies dressed in the height of fashion followed the proceedings.

Who was responsible for this elaborate and colorful setting, so obviously imitating the spectacle of a few years earlier at Westminster? Senator Plumer, of New Hampshire, records that all the arrangements were in the hands of the Vice-President who also presided over the trial. And that Vice-President was Aaron Burr. One might have guessed that no other American statesman boasted the same dramatic instinct. Nor was the stage set without his awareness that he was to play a leading part on it. And he played it well. From at least one none-too-friendly critic he provoked the comment that: “He conducted with the dignity and impartiality of an angel, but with the rigor of a devil.” Burr was greatly pleased with that remark and quoted it in a letter to his daughter, Theodosia.

Through February the arguments were heard. Then on March 1 the Senate voted on the charges. The Republicans could not muster enough votes to convict and Vice-President Burr closed the proceedings with the pronouncement that Samuel Chase, Esquire, stood acquitted of all the articles exhibited by the House of Representatives against him.

The impeachment of Chase was the prelude to another legal spectacle soon to follow. Once more the leaders of the American bar were to have an opportunity to emulate their English brethren. As Burr, half-angel and half-devil, presided while Samuel Chase awaited his fate at the hands of the United States Senate, did he have an inkling that in the next cause célèbre he would appear not as presiding officer, but in the role of the accused?

This time the leaders at the bar were to have as the subject of their contention not a mere associate justice of the Supreme Court but a former Vice-President of the United States. The charge against him was to be not just incompetence in office, but the high crime of treason. An effort was to be made to show that Burr, who had been honored by his countrymen with the second highest elective office in the land, had responded to that generosity by doing his best to split the nation in half while it was still struggling for survival.

The trial was to provide another battleground for the two new political parties—the Federalists, representing wealth and aristocracy and conservatism, and the Jeffersonian Republicans, recruited from the masses and led by a man of no small fortune who was regarded by the Federalists as a dangerous radical and a traitor to his class. It was to be the scene, too, of a fight for power between the executive and the judiciary reflected in the personalities of Thomas Jefferson and John Marshall—a fight not only of immediate moment but one whose outcome was to determine the relative positions of the two branches of government for years to come.

Finally, if the accused was found guilty he faced not simply dismissal from office, but death on the gallows. Even the colorful impeachment of Warren Hastings fell short of that.

Chapter I

At dusk on the evening of the twenty-sixth of March, in the year 1807, there arrived in Richmond, Virginia, over the road from Fredericksburg, a stagecoach bearing a party of seven men. It pulled up on Main Street before the Eagle Tavern, one of the leading hostelries of the town, where in the growing darkness the passengers descended without attracting great attention.

One of them was a tall, thickset man with a weather-beaten face whose air of authority marked him as leader of the group. His companion, of less than average height, lightly built and erect, wore a rough suit of homespun with pantaloons and a hat with a wide brim which drooped disconsolately over his refined features. Those unmistakable evidences of gentility were in striking contrast to the uncouth dress of a backwoodsman.

The large man bore the name of Nicholas Perkins. He was registrar of the land office of Washington County in faraway Alabama. The second man was Aaron Burr, lately Vice-President of the United States, and now a prisoner of the United States Army. The other five men were his guards, especially picked to assure the safe delivery of the prisoner wherever the authorities might direct. Theirs had not been an arduous task. With one minor exception the prisoner could not have been more co-operative and amenable.

The trip from Alabama had taken 21 days, but the journey which brought Aaron Burr to his present situation might be said to have begun when he first saw the light of day more than 51 years before. For nature had endowed him at birth with a fatal combination of brilliance and deviousness that in the end was to be his undoing.

No man could have been blessed with worthier forebears than was Aaron Burr. The first of the line to arrive in this country was one John Burr, a Puritan, who came to the Massachusetts colony with Governor John Winthrop in 1630. Aaron, born on February 6, 1756, in Newark, New Jersey, represented the fourth generation in descent from the immigrant. His father, whose name he bore, was president of the College of New Jersey, shortly to become Princeton. Aaron’s mother was Esther Edwards Burr, daughter of the Rev. Jonathan Edwards, theologian, metaphysician and scholar. Because of his many descendants who achieved distinction, Jonathan Edwards was destined to go down in history as one of the greatest of New England progenitors. Following the death of his son-in-law, Edwards also held the office of President of Princeton.

When Aaron was still a child his father and mother died, and he and his older sister Sally were sent to live with an uncle, Timothy Edwards, of Elizabethtown. Uncle Timothy met his responsibility with Puritan zeal. Aaron’s childhood was marked by strict discipline. Distasteful though it may have been it bore practical results. A precocious youngster to begin with, he progressed so rapidly in his studies that he was ready to enter the sophomore class at Princeton at the age of 13 years. In 1772, aged 16, he was graduated at the head of his class.

Already he was beginning to exercise an irresistible charm. The hazel eyes, which seemed to cast a hypnotic spell on whomsoever they fell, the regular handsome features, and an ingratiating manner made him a favorite among his fellows and aroused lively interest in those of the other sex.

Sister Sally by now had married Tapping Reeve, another person of outstanding intellect, who conducted a law school at Litchfield, Connecticut. To Litchfield Aaron repaired, to begin professional studies under his brother-in-law. Tradition has it that at Litchfield commenced the series of love affairs that were to earn Aaron the reputation of a philanderer. There he was when the Revolution broke out.

Fired with patriotism, Burr volunteered his services in time to join the expedition against Quebec which was led by Benedict Arnold. In that arduous and ill-fated campaign he conducted himself with courage and fortitude and was rewarded by being made a captain on the headquarters staff. He displayed signal gallantry in the heat of the battle and General Montgomery, Arnold’s lieutenant, died in his arms.

Arriving in Albany flushed by his exploits in the Quebec campaign, Burr received word that General Washington would find it agreeable to see him in New York City where the Commander-in-Chief then had his headquarters. On Burr’s appearance there the General invited him to join his official family and Burr accepted. The prospect was indeed a pleasing one.

On this occasion, however, the usually irresistible charm failed to work. Burr, young and impetuous and fired with enthusiasm, apparently expected to be taken into General Washington’s confidence and to share in planning the grand strategy. On the contrary he was treated with no particular deference and saw himself nothing more than a clerk. Disappointed and discouraged he appealed to John Hancock, President of the Continental Congress, who arranged to have him transferred to General Putnam’s staff. His stay at general headquarters lasted only about six weeks.

Other later contacts between General Washington and Burr proved to be equally unsatisfactory. In the retreat of the army after the Battle of Long Island Burr saved a brigade from capture and was annoyed when the incident passed unnoticed by the General. When, a year later, a letter came from the General notifying Burr of his promotion to lieutenant colonel, instead of expressing gratitude Burr wrote a petulant reply complaining of others who had been promoted ahead of him and asking whether the late date of the commission was due to any misconduct on his part.

In the winter of Valley Forge Burr proposed a raid on Staten Island which Washington turned down. When in the same winter Generals Conway, Lee, and Gates plotted to relieve Washington of command, Burr was counted in the camp of the conspirators. At the Battle of Monmouth just as Burr was about to attack, General Washington appeared on the scene and countermanded the order. Yet when soon thereafter Burr suffered a sunstroke which ended his military career, Washington accepted his resignation “with regret.”

The most authoritative account of the relationship between Washington and Burr is found in the memoir of Matthew L. Davis, Burr’s friend of many years and his literary legatee. Davis states that Burr’s prejudices against Washington became so fixed and unchangeable that up to his dying day he referred to the retreat from Long Island with acrimonious feelings for the commander. It is equally certain, adds Davis, that for some reason Washington placed no confidence in Burr and was exceedingly hostile to him.

Following his retirement from military service Burr was admitted to the bar and opened a law office in Albany. He soon thereafter married Theodosia Prevost, a widow ten years his senior and already the mother of five children. She bore him two daughters. Little is known about one of them who appears to have died in early childhood. The other, bearing her mother’s name, lived on, as we shall see, to play a major role in the life of her father.

Letters of the elder Theodosia to her husband reveal an almost pathetic adulation. On at least one occasion Burr reacted with an impatience such as he seldom showed to anybody. Still, the marriage appears to have been on the whole a happy one, and it lasted twelve years until the death of Mrs. Burr in 1794.

Burr’s intellect, his political instinct, and his charm combined to speed him on his career. Casting his lot with the Jeffersonians, he was elected to the New York Assembly. He moved to New York City and soon was recognized as a leader at the bar. There he found Alexander Hamilton already firmly established both in law and politics, and soon to apply his power and genius to blocking Burr’s further progress. Hamilton, like Burr, was a veteran of the Revolution and had served on Washington’s staff; but, unlike Burr, Hamilton was highly esteemed by the Commander-in-Chief. The friendship and mutual confidence there cemented were carried on into civilian life and Hamilton, who shared Washington’s conservative views, entered the first President’s cabinet as Secretary of the Treasury. When Burr arrived in New York Hamilton was leader of the local Federalists and the Federalists controlled the town.

After the Revolution there was established in New York and other cities in the East an organization bearing the name of the Tammany Society. Its membership was composed of mechanics and like humble citizens and it was dedicated to social, patriotic, and charitable activities. Burr was the first man in public life to realize its potentialities as a political force and to use the New York organization for the advancement of his own political fortunes. Meanwhile he had been appointed Attorney General of the state and from that vantage point was elected to the United States Senate over General Schuyler, Hamilton’s father-in-law. The victory, naturally enough, served to aggravate Hamilton’s jealousy and increase his concern over this rising political rival.

So far had Burr progressed in popular esteem that, in the Presidential election of 1796, he received 30 electoral votes as against 71 for John Adams, the victor, and 68 for Thomas Jefferson. His term in the Senate having expired, he returned to the practice of law and also to the New York Assembly.

In the Presidential election of 1800 Burr’s meteoric political career reached its peak. He and Jefferson, running as Republicans, received an equal number of electoral votes and the election was thrown into the House of Representatives. For the first and last time Burr was within one vote of winning the nation’s highest honor. But, on the thirty-sixth ballot, Jefferson was elected. As was the rule in that day Burr, who had received the next highest number of votes, became Vice-President.

In the election Burr had put his political machine to such effective use that the Federalist monopoly in New York was broken and enough Republicans from the city won seats in the Assembly to give their party control. Since the Assembly chose New York’s electors, and since in the election of 1800 New York was the pivotal state, Burr could reasonably claim credit for swinging the election which threw the Federalists out of the government in Washington and put the Republicans in.

Hamilton was far from being a silent witness to these events. By now he was thoroughly alarmed not only for himself but for the safety of the nation whose future he saw in jeopardy if the Presidency were to go to a man of the caliber he judged Burr to be. With all the vigor at his command he threw himself into the contest to prevent Burr from winning the necessary votes. “As unprincipled and dangerous a man as any country can boast,” “as true a Cataline as ever met in conclave,” a man whose “private character is not defended by his most partial friends,” “bankrupt beyond redemption except by the plunder of his country,” his “public principles have no other spring or aim than his own aggrandizement”—these were among the extravagant epithets Hamilton applied to Burr in letters to friends. As much as he disliked Jefferson there was no question in Hamilton’s mind that the rangy Virginian doctrinaire was the lesser of the two evils. Burr could lay his failure to attain the Presidency to the violent animosity of Hamilton.

Burr’s political success in New York was disturbing not only to the Federalists but equally so to certain members of his own party. The New York Republicans were then divided into three factions made up of the followers of the Livingston and Clinton families and of Burr. All three groups were steeped in intrigue and so bankrupt of moral principle that there was little choice between them. Albert Gallatin, Jefferson’s Secretary of the Treasury and political mentor, was inclined to give a preference to Burr. Not so Jefferson.

The presidential election over, Burr showed his pique by kicking over the traces. In January 1802 a bill to repeal the hated judiciary act, passed in the previous year by the Federalists, reached the Senate. A motion to recommit led to a tie vote and left the decision to the Vice-President. Burr voted with the Federalists. Then a few weeks later, to add insult to injury, he appeared as guest at a dinner given by the Federalists and there proposed a toast to “the union of all honest men.” It was abundantly clear to those present that in the select company of honest men Burr emphatically did not mean to include Mr. Jefferson and the rest of the “Virginia dynasty.”

Such disloyalty to his party could not be overlooked. Within a few days the Republican press, led by DeWitt Clinton’s New York American Citizen and William Duane’s Philadelphia Aurora, was in full cry. There was no longer any doubt that Jefferson, the Clintons, and the Livingstons were determined to strip Burr of his power and drive him from the party.

Considering the conflicting temperaments of Burr and Jefferson the split between the two men was inevitable. Though Jefferson professed to believe that Burr had declined the blandishments of the Federalists to have himself elected President in 1801, a truer opinion of Burr is revealed in a letter written some years later to Senator William B. Giles. Jefferson denied having ever had any hostile sentiment toward Burr yet confessed that he had not thought him an honest, frank-dealing man but rather “a crooked gun, or other perverted machine, whose aim or shot you could never be sure of.”

An election for Governor of New York was scheduled for the spring of 1804 and though Burr’s term as Vice-President would not be up until March of the following year he announced himself as a candidate. But the Clintons and the Livingstons controlled the party machine. While the rank and file were for Burr the leaders saw to it that the nomination went to one Morgan Lewis. Since the Federalists had no candidate of their own and Burr was well liked by many of them, he decided to run as an independent candidate, counting on both Federalist and Republican votes. Here he met with violent opposition from Alexander Hamilton, who had no intention being of humiliated by Burr, whom he disliked and distrusted, winning the election with the aid of Federalist votes. In the bitter campaign which followed Lewis, with the support of the regular Republicans and a minority of Federalists, was swept into office. Burr’s defeat, attributed largely to Hamilton’s intervention, spelled the end of his political career.

In the course of the campaign Hamilton attended a dinner at the home of a friend in Albany. It was an assembly of intimates and Hamilton freely expressed his opinion of Burr. The matter might have ended there had not the remarks he was supposed to have made found their way into an Albany newspaper, from which they were picked up by other newspapers throughout the state and used extensively in the campaign. One remark was to the effect that Hamilton had said Burr was a “dangerous man and ought not to be trusted.” The other credited Hamilton with having applied to Burr the term “despicable.”

Burr waited until the campaign was over. Then he wrote Hamilton a letter stating that the remarks had been brought to his attention and demanding an explanation. Hamilton’s reply was evasive. After further exchanges failed to give satisfaction, Burr’s friend William P. Van Ness presented himself before Hamilton with a challenge to a duel. Hamilton accepted. The date set was July 11 and the place the heights of Weehawken in New Jersey across the Hudson River from New York City.

On July 4, according to its custom, the Society of the Cincinnati, composed of former officers of the American army in the Revolution, held a convivial celebration in honor of the Declaration of Independence. Both Hamilton and Burr were members and both attended. Those present recalled later that Hamilton was unusually gay, leading the others in song, while Burr was more serious than was his usual custom at these parties. Their conduct toward each other was so correct that nobody suspected that the two men shortly were to meet in a duel.

Early on the morning of the 11th Hamilton, accompanied by Nathaniel Pendleton, his second, and Dr. Davis Hosack, his surgeon, crossed the river and arrived at the rendezvous. They found Burr and Van Ness already on the ground, busy clearing away the underbrush and overhanging boughs. The formal greetings required by the “Code” were exchanged. The seconds loaded, inspected and approved the pistols, and agreed on the procedure.

The principals took their positions. In appearance they were evenly matched. Both men were short of stature, trim in figure, alert but calm. Whatever their shortcomings neither lacked physical courage. With pistols gripped they awaited instructions which were not long in coming.

The order “Fire!” was given by Pendleton in a loud voice, and two shots followed. Burr stood unmoved; Hamilton fell forward on his face. Pendleton and Hosack rushed to the wounded man’s side. Burr made a motion as if to do likewise but was restrained by Van Ness, and after removing their hats in respect for their opponent they left the scene.

Hamilton managed to tell Dr. Hosack he believed the wound was fatal before he lost consciousness. The ball had passed through his liver and lodged in his spine. He was rowed back across the river to New York and, suffering great pain, lingered through the day and night and died the following afternoon.

An incident which occurred on Burr’s return to Richmond Hill, his handsome country home outside the city, affords a momentary glimpse into the strange character of the man. A young relative, unaware of what had happened, dropped by and found Burr engrossed in ordinary household matters. He accepted an invitation to breakfast where the conversation was confined to general topics. After breakfast the young man said goodby and went down to Wall Street where a friend inquired if he had heard that Burr had killed Hamilton in a duel. “Impossible,” exclaimed the relative, “I have just had breakfast with the Colonel and he said nothing about it.”

Those who knew him well say that Burr would have expected no mourning had he, and not Hamilton, been killed.

But if Burr’s conscience was clear, not so that of the local community. Before this meeting public opinion had turned strongly against dueling as a means of settling personal differences. Anger reached fever heat when the victim was so distinguished and popular a man as Hamilton. The public cried out for punishment. Burr was indicted for murder in New Jersey and for a misdemeanor in New York. To escape the action of the courts he had to leave home and, as he expressed it, “give a little time for passions to subside.”

When men faced the possibility of death in a duel it was customary for them, on the eve of the meeting, to set down parting messages. Burr’s on this occasion was a touching farewell to his daughter Theodosia. Hamilton’s contained an apology for his attacks on Burr. Confessing that in some particulars he might have been influenced “by misconstruction of misinformation,” he concluded: “It is also my ardent wish that I may have been more mistaken than I think I have been, and that he, by his future conduct, may show himself worthy of all confidence and esteem, and prove an ornament and a blessing to the country.” Later events were to give a prophetic quality to the doubt expressed.

The situation in which he found himself did little to disturb Burr’s natural buoyancy. He allowed himself to be involved in a romantic episode with a lady named Celeste and wrote gaily to Theodosia: “If any male friend of yours should be dying of ennui, recommend to him to engage in a duel and a courtship at the same time. Prob. est.”

Burr’s objective at this time was a reunion with Theodosia, who had married Joseph Alston, a wealthy South Carolina planter. The Alstons, and their little son Aaron Burr Alston, had a home in Charleston. Before going there Burr spent a brief vacation at St. Simon’s Island, Georgia. His traveling companion, who acted also as secretary and aide-de-camp, was Samuel Swartwout, whom Burr described as “a very amiable young man of twenty or twenty-one.” Samuel was the younger brother of John Swartwout, onetime Collector of the Port of New York and a political ally of Burr who had been ignominiously discharged by Jefferson. More will be heard of Samuel.

In the journey from Georgia to Charleston Burr included a 200-mile canoe trip by inland waterways which revealed his exceptional powers of endurance at the age of 48 years.

Around the beginning of the New Year of 1805 Burr was back in Washington as presiding officer of the Senate. His admirable conduct of the impeachment trial of Justice Samuel Chase has been mentioned. But his official days were numbered. In the election of 1804 the Republicans chose DeWitt Clinton, his New York rival, for second place on the ticket. The Republicans were again the victors and Jefferson and Clinton took office on March 1, while Burr went out.

The Vice-President made a dramatic exit. On the eve of his departure he addressed the Senate. No scribe was at hand to record for posterity his exact words. He himself stated that he had made no previous preparation, but spoke merely from the heart. What posterity does know is that he spoke so earnestly, so eloquently, and so convincingly that some of his colleagues in that austere body broke down and wept unashamedly. When he had finished, in spite of the duel, in spite of political animosities and suspicions, they “Resolved, unanimously, that the thanks of the Senate, be presented to Aaron Burr, in testimony of the impartiality, dignity and ability with which he has presided over their deliberations, and of the arduous and important duties assigned him as President of the Senate.”

Was he not to be excused if, with such impressive evidence of magic power over his fellow men, he was led to imagine that destiny still had great things in store for him?

Yet, for the moment, there were serious defects in his fortunes which called for immediate repair. He was out of political office. The indictments against him in New York and New Jersey made it impossible for him to return home to the practice of law which hitherto he had found lucrative. Always extravagant in his tastes, and chronically living beyond his means, he was now heavily in debt. Soon after the duel he had been obliged to sell Richmond Hill for $25,000 to meet his more pressing obligations. As one of his biographers says of him, he was at this point what is popularly described as “a ruined man.” Under these discouraging circumstances Burr turned his eyes to the West.

Chapter II

The United States census of 1800 showed a population of 5,308,483 persons, of whom one fifth were slaves. The bulk of it was in the states along the eastern seaboard; west of the Allegheny Mountains were fewer than 500,000 settlers, chiefly in Ohio, Kentucky, and Tennessee. The mountains served as a rugged barrier cutting off the westerners almost completely from the East and giving them a sense of political as well as physical detachment.

The only means of communication overland were three crude highways largely limited to travel by horseback or by the great Conestoga wagons drawn by six horses which carried such commerce as there was between the two areas. One road led from Philadelphia to Pittsburgh, another followed the line of the Potomac River through Maryland to the Monongahela, and a third ran through Virginia and crossed the mountains into Kentucky and Tennessee.

Once the tributaries of the Mississippi River were reached river craft provided a more luxurious mode of travel and also transported freight. The staple products of the western country were floated downstream on flatboats to New Orleans to be sold there and shipped by sea. Sometimes their owners went along to market their goods in the thriving young cities of the East and returned home across country on horseback.

That was why Spanish control of the mouth of the Mississippi at New Orleans, involving refusal of the right to deposit goods there, had been so irritating to the people of the West. The westerners with considerable justification considered the easterners indifferent to their problem and felt they were getting precious little in return for the taxes they paid to the central government. During the period of the Confederation when the prospect of a solid, united nation was anything but sure, a separatist movement sprang up in Kentucky and Tennessee. Its object was an independent nation west of the Alleghenies under the protection of Spain, whose colonial officers encouraged the idea. Though the so-called “Spanish Plot” had the support of influential men, it was not accepted by the rank and file. The purchase of the Louisiana Territory in 1803, with the control of New Orleans, and the granting of statehood to Kentucky and Tennessee, served further to weaken the separatist urge.

Magnificent as the Purchase eventually proved to be, it had serious flaws. The original mission of Livingston and Monroe to France called for the acquisition of the Floridas. Yet the final settlement did not include East Florida and left the claim to West Florida in doubt. Equally vague, and therefore a cause for controversy, was the Texas boundary. These questions, of great moment to the South and West, were little understood or bothered about by the rest of the country. They did, however, give grave concern to President Jefferson. Acquisition of the Floridas became an obsession with him and, until the issue was settled, war with Spain was always an imminent possibility. The Spanish did not help ease the tension when they massed troops on the frontier. Meanwhile in Europe the Napoleonic wars were resumed and Spain, as an ally of France, returned to her irritating practice of seizing American merchant ships that were alleged to be carrying cargoes to Britain.

Thus it came about that in his message to the Ninth Congress in December, 1805, President Jefferson’s charges against Spain were so violent and his warning of retaliation so strong that many interpreted it as being virtually the introduction to a declaration of war. It was so played up by the Republican press throughout the country. This widespread belief in the imminence of armed conflict was to have an important bearing on the activities of Aaron Burr in the West. The general public did not know that the threats in the message were primarily for Spanish consumption and that in a secret communication Jefferson was proposing simultaneously an amicable settlement of the Floridas dispute through purchase.

In the spring of 1805, immediately after terminating his duties in Washington, Burr set out on horseback along the highway for Pittsburgh, even then a flourishing center of trade. There he purchased a commodious houseboat and began a journey down the Ohio River. The boat contained a dining room, kitchen with fireplace, and two bedrooms; the roof, running the length of the craft, served as a porch and a place for exercise. Burr’s ultimate destination was New Orleans but he made a leisurely progress, stopping frequently at settlements along the river. In that remote country any visitor from the East was welcome and none more so than the distinguished and charming ex-Vice-President. In the West no stigma was attached to dueling, but rather admiration was bestowed on a man who had practiced it. And, since most westerners were Jeffersonian Republicans, the fact that Burr’s victim had been a Federalist leader was more reason for applause than for condemnation.

One of Burr’s stops was at an island a few miles below Marietta, Ohio. It was owned by an Irish gentleman named Harman Blennerhassett who had erected a handsome mansion on it. The master was away but Burr was graciously entertained by Mrs. Blennerhassett. The island and its owners were to figure prominently later in the alleged conspiracy.

At Cincinnati Burr was entertained by Senator John Smith of Ohio, a versatile fellow who, in addition to representing his state in the Senate, acted in such diverse capacities as Baptist preacher, storekeeper, speculator, and army commissary. There too Burr ran into his old friend Jonathan Dayton, former U.S. Senator from New Jersey, a kindred spirit whom he had known since college days at Princeton. Dayton, like Burr, was now out of a job; and, like Burr, on the lookout for an improvement in his fortunes.

Burr left the river and proceeded by land to Frankfort, Kentucky, and from Frankfort to Nashville, Tennessee, where he was received with public honor and invited by General Andrew Jackson to be his guest at the Hermitage. Of his relations with Jackson more will appear later.

From Nashville Burr journeyed to Fort Massac, an army post on the Ohio River not many miles above its confluence with the Mississippi, where he had another significant meeting with an old friend of Revolutionary War days, Maj. Gen. James Wilkinson. They had served together on the expedition to Quebec. Wilkinson now held the important offices of Commander-in-Chief of the United States Army and of Governor of Louisiana Territory. In the previous winter Burr and Wilkinson had met in Washington and it was reported they spent much time studying maps of the Spanish territories that adjoined those of the United States in the South and Southwest. They had become sufficiently intimate to devise a cipher to be used in their personal correspondence and so protect it from prying eyes.

Wilkinson supplied Burr with a new houseboat equipped with sails and assigned to it a detachment of soldiers which enabled Burr to make an impressive entry into New Orleans in keeping with his station as a statesman temporarily out of a job. Wilkinson provided him as well with several letters of introduction. Wilkinson was to play a major role in the alleged conspiracy.

On his arrival in New Orleans Colonel Burr was cordially welcomed by Governor W. C. C. Claiborne as well as by the governor’s numerous and vociferous enemies. He saw much of the leaders of the Mexican Association, an organization sympathetic with Mexico’s aspirations for liberation from Spain. He was well received also by the Roman Catholic Bishop of New Orleans who favored this cause since at the time the Spanish rulers were threatening to confiscate church property in Mexico.

After three weeks in New Orleans Burr retraced his steps northward as far as St. Louis. Again he gave an impressive demonstration of his physical fitness by traveling on horseback from New Orleans to Nashville through the roughest sort of country. By the end of the year he was back in Washington dining with President Jefferson at the White House.

Late in the summer of 1806 he again set out for the western country. Summer gave way to autumn and as the days grew shorter alarming rumors about his doings spread through the East. Some of them reached the White House. What was Burr up to?

Foremost among the informants was Joseph Hamilton Daveiss, U. S. District Attorney for Kentucky, who owed his appointment to President John Adams. As early as January he was writing letters to the President warning him of a plot and implicating Burr. But the President was not happy about this source of information. Daveiss was aided and abetted by former U. S. Senator Humphrey Marshall of Kentucky. Both were Federalists; both were brothers-in-law of the Chief Justice for whom Mr. Jefferson had no fondness. Humphrey Marshall, a first cousin of John Marshall, and Daveiss had married John’s sisters. Furthermore all the people they mentioned as being involved in the conspiracy were Republicans. Naturally the President wondered why his political enemies should be taking so much trouble to keep him informed, and suspected their motives.

Receiving no encouragement from the President, Daveiss and Marshall pursued their campaign alone. In July there appeared in Frankfort a publication under the name of the Western World with which Daveiss and Marshall were closely identified. In its September issue it openly charged that there was a conspiracy afoot to combine Kentucky, Tennessee, Ohio, Indiana, Louisiana, and the Floridas into an independent government. The newspaper added that while the majority of the conspirators wanted to call a convention and obtain the consent of Congress, a considerable number favored effecting their purpose by force of arms. The statement turned out to be pure speculation; nevertheless it was picked up and widely republished in the East.

Burr by this time was in Lexington, Kentucky. Daveiss now took another step. In his capacity as district attorney he appeared in the Federal Court at Frankfort and accused Burr of having violated the laws of the Union by setting on foot an unauthorized expedition against Mexico, a country with which the United States was at peace. A similar charge was preferred against Senator John Adair of Kentucky. Adair, a veteran of the Revolution, had accompanied Wayne and Wilkinson on a campaign against the Indians in the Northwest in 1791. He enjoyed Wilkinson’s confidence, met Burr through him, and seems to have taken the attitude that Burr was an advance agent of the Federal Government to arouse the West for a war with Spain and conquest of the Southwest.

Learning of the charge, Burr presented himself at Frankfort and demanded an examination. A grand jury was empaneled but Daveiss could not round up his witnesses and asked for its discharge. Thanks to his failure Daveiss was held up to public ridicule. Two weeks later the same performance was repeated. Another grand jury was empaneled, Daveiss again failed to assemble his witnesses, and again Burr was discharged. So too was Adair. To add to his accuser’s mortification Burr’s second victory was celebrated by a public ball.

The silence in Washington in the face of what was going on led to two possible conclusions. One was that the administration was too weak to put up a fight even against its own destruction. The other was that if Burr actually was leading an expedition against Mexico he was doing so with the co-operation and blessing of the Jefferson administration.

Burr’s dinner at the White House of the winter before lent credence to that conjecture. The public could not know that Burr had requested the meeting and had gone to the White House to beg some important office in the administration, and to warn Jefferson that if he did not get it he was in a position to do him much harm. Mr. Jefferson had enough informants on Burr’s trail to comprehend what the threat implied. But he was not to be bullied or frightened. He replied calmly that he had always realized Burr had talent and hoped he would put it to the public good. However, Burr must be aware that the public had lost confidence in him. Mr. Jefferson did not know why Burr should wish to do him harm but he feared no injury.

This was not the first time Burr had enjoyed the hospitality of the White House at his own solicitation. Two years before, when he was about to retire from the Vice-Presidency, he had dined with Mr. Jefferson, had proposed an alliance between them, and on that occasion too had asked for an office. The President had declined the request. He thought the meeting sufficiently important to note it in his diary, remarking that Burr’s conduct had always inspired him with distrust. Evidently Jefferson was not to allow this distrust to forbid Burr the White House. No doubt he hoped to derive information from such contacts and was so confident Burr could do him no harm that he was indifferent to the use which Burr might put the show of intimacy. Unfortunately, at this critical moment the policy left the country uncertain as to how far the administration was implicated in Burr’s operations.

At last the Government at Washington acted. Following discussions by the Cabinet on October 22 and 25, John Graham, secretary of the Orleans territory, who was in the East and about to return to his post, was ordered to stop in Ohio and Kentucky on his way westward and inquire into Burr’s movements. He arrived in Marietta during the middle of November where he was warmly welcomed by Harman Blennerhassett who talked freely with him. It seems that in his effort to impress Blennerhassett, Burr had told him that Graham was concerned in the plot.

Graham proceeded to Chillicothe where the Ohio Legislature was sitting and persuaded that body to authorize the governor to use the militia to seize Burr’s boats that were building at Marietta. He then went to Kentucky and induced its legislature to take action to halt the conspiracy. He was too late, however, to prevent a flotilla under the command of Blennerhassett from passing down the Ohio River to join Burr’s contingent at the mouth of the Cumberland.

On November 27 the President issued a proclamation that was broadcast throughout the western country warning all good citizens to withdraw from unlawful enterprises. Thus he made it emphatic that whatever might be taking place was without the Government’s sanction.

Simultaneously orders were dispatched to the civil authorities, from Pittsburgh to New Orleans, putting them on the alert and directing them to use regular troops and militia to thwart any illegal enterprise that might be brewing. The proclamation was disappointing to the public since it left the nature of the enterprise a mystery and did not so much as mention Burr’s name.

On December 1 the President sent his regular message to Congress. He made casual reference to the conspiracy, but again supplied no names. Meanwhile the House of Representatives was growing restive. John Randolph of Roanoke, the brilliant but eccentric Virginia member, who had broken with the Jeffersonians and was now constantly looking for ways to embarrass the administration, introduced a resolution requesting from the President detailed information on the conspiracy.

Thus spurred to action, President Jefferson, on January 22, addressed a special message to the Senate and House of Representatives. He stated that in answer to their request he was transmitting to them information received by him touching on “an illegal combination of private individuals against the peace and safety of the Union, and a military expedition planned by them against the territories of a power in amity with the United States, with the measures pursued for suppressing the same.”

At last the President was specific. The prime mover, he said, was Aaron Burr, “heretofore distinguished by the favor of his country.”

As early as September, the message continued, the Government had received reports of agitation in the western country. Then in the latter part of October the objects of the conspiracy began to be perceived. But they were still so involved in mystery that nothing distinct could be singled out for pursuit. However, the Government had sent a trusted agent to investigate the plot.

Then, said the President, on November 25 the Government had received from General Wilkinson, Commander-in-Chief, a letter in which the General reported having been visited by a confidential agent of Burr, with communications partly written in cipher, and partly oral, setting forth his designs and offering Wilkinson such emolument and command as to engage him and his army in the unlawful enterprise.

But, declared the President, “The General, with the honor of a soldier and the fidelity of a good citizen, immediately dispatched a trusty officer to me with the information of what had passed. Thanks to the General’s letter and other information received a few days earlier, it was possible to develop Burr’s general design.”

It appeared, said Jefferson, that Burr contemplated two distinct objects, which might be carried on either jointly or separately, and either the one or the other first, as circumstances should direct.

One of these was the severance from the Union of the states west of the Allegheny Mountains.

The other was an attack on Mexico.

The President mentioned also as a third object a settlement on what he called “a pretended purchase” of a tract of country on the Washita River in northern Louisiana. As the President interpreted it, this third object, however, was merely to serve as a pretext for Burr’s preparations in collecting men, boats, and supplies, and as an allurement for such followers as really wished to acquire settlements in that country. It also was to serve as a cover under which to retreat in the event of the final discomfiture of both branches of his main design.

But, said the President, Burr had found that the attachment of the western country to the Union was not to be shaken. Its dissociation, therefore, could not be obtained through the consent of the inhabitants, and Burr’s resources were inadequate to effect his purpose by force. So, instead, Burr had determined to seize New Orleans, plunder the bank there, take possession of the military and the naval stores, and proceed on his expedition to Mexico.

Burr, the message further charged, had seduced good and well-meaning citizens—some of them by pretending he enjoyed the confidence of the Government and was acting under its secret patronage, others by offers of lands on the Washita.

In response to his proclamation of November 27, reported the President, Governor Tiffin of Ohio and the Ohio Legislature had, “with a promptitude, energy and patriotic zeal, which entitled them to a distinguished place in the affection of their sister states, effected the seizure of all the boats, provisions and other preparations within their reach, and thus gave a first blow, materially disabling the enterprise at its outset.”

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

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

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

Of Burr, he declared, his “guilt is placed beyond question.”

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

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

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

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

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

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

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

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

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

Chapter III

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Chapter IV

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Secretary of State Madison and the Attorney General solicited the help of General Andrew Jackson to the same end in Tennessee. Wilkinson, in New Orleans, sent agents in search of information through Louisiana and Mississippi. This governmental dragnet brought results. Witnesses and depositions combined reached an impressive total of close to 150.

Whether they would all be heard was a different matter. They still had to pass an exacting test contrived by counsel for the defense, sufficient to convince the Chief Justice that the admission of their evidence was strictly within the letter of the law. Let the public make whatever deductions it pleased about the trial at Richmond, John Marshall did not intend to deviate one inch from what he considered to be the sacred duties of a judge in the execution of justice.

Chapter V

Colonel Burr in a letter to Theodosia complained: “The Democratic papers teem with abuse against me and my counsel, and even against the Chief Justice. Nothing is left undone or unsaid which can tend to prejudice the public mind, and produce a conviction without evidence.”

His complaint must have included the Richmond Enquirer whose editor, Thomas Ritchie, was coming to be recognized as one of the leading Republican editors of the nation. Ritchie had been born in Tappahannock, Virginia, when that town was a thriving port on the Rappahannock River. His father, Archibald Ritchie, was a Scottish merchant who was charged with being a Tory during the Revolutionary War. His mother was Mary Roane and through her he was related to the best families in that section. Archibald Ritchie died when Thomas was still young and the widowed mother put the lad to the study of law with her kinsman Spencer Roane, the rising lawyer and ardent Republican who, as has been mentioned, was believed to be Jefferson’s choice for Chief Justice if disaster should overtake John Marshall.

But Thomas did not like the law. He switched to medicine only to discover that he liked that even less. A spell of school teaching, followed by one of bad health, brought him to Richmond where he opened a small bookstore. Then, at the urging of Thomas Jefferson and his cousin Spencer Roane, he established there a newspaper supporting the Republican cause. The first issue of the bi-weekly Enquirer appeared on May 9, 1804. It was kept alive by party patronage in the rarefied atmosphere of Richmond where most of the prosperous people who could afford the luxury of a $5 per annum subscription were Federalists and subscribed to The Gazette.

Ritchie was by no means a party hack. If he thought the administration in Washington was at fault he said so. In fact, his occasional outbursts of independence provoked from that indefatigable party regular, William Duane of the Philadelphia Aurora, the charge of being “a wolf in sheep’s cloth.”

By 1807 Ritchie was firmly established in the editor’s chair and also in Richmond society to which his birth entitled him. In that year he married Isabella, daughter of Dr. William Foushee, first mayor of Richmond and one of the leading doctors. Isabella, before her career as mother ended, was to bear him twelve children, threatening the supremacy of Eliza Wickham who had a brood of seventeen.

Emaciated, sallow, long-nosed, thin-lipped, and unsmiling, Thomas Ritchie looked the part of a crusader. In his treatment of Burr in the columns of The Enquirer he was regular enough to have met the most exacting specifications of Duane. It is true that a few days after Colonel Burr’s arrival in Richmond The Enquirer piously declared: “It is difficult for us to distinguish all those cases in which we ought to speak from all those where we should be silent. Perhaps the editor of the National Intelligencer has nearly struck the proper line of discrimination: like him we shall abstain from all ‘impassioned representations’—and like him—we shall ‘unhesitatingly give all new facts as they offer themselves’ without any regard to the party whom they favor.”

Contrary to this impressive declaration of impartiality The Enquirer had not hitherto shown itself altogether free from bias. On March 13, for example, it had reprinted from the Intelligencer, that other vehement mouthpiece of the administration which was published in Washington, the statement: “That Aaron Burr has formed a treasonable plan leveled at the destruction of every ingredient of our felicity cannot be disputed.”

On March 24, two days before the arrival of the Colonel in Richmond, The Enquirer again quoted the Intelligencer: “Let us not hereafter hear it said that a Republican government is deficient in vigilance.... That it [the conspiracy] was deliberately formed we have reason to believe from the character of its author, and from the deposition of General Eaton, which shows that his mind had long dwelt upon it and had contemplated it in its various aspects.”

Nor did The Enquirer let its impartiality go to the point of withholding from its columns a dispatch from Baltimore quoting an extract from a letter from a “gentleman of unquestionable character,” dated “New Orleans, February 17” and declaring: “I must acknowledge that Burr is the most consummate scoundrel and artful liar that I ever had an acquaintance with.” The Enquirer followed this with a squib from the Philadelphia Aurora, which, under the heading “An Outlaw Emperor,” said in part: “The Federalists have now an opportunity of exhibiting new evidence of their sympathy and attachment to traitors.”

On the other hand the Federalist press could not boast that its hands were altogether clean. As the trial got under way, The Gazette, speaking for the conservative element, presented in its columns an extract from a letter allegedly received from Caroline County, between Richmond and Washington—no doubt penned by a gentleman of as “unquestionable character” as The Enquirer’s gentleman from New Orleans—whose subtle aim was to discredit the Government’s witnesses. It stated that a man on his way to Richmond as a witness for Mr. Jefferson against Colonel Burr had been detected in an attempt to start an insurrection among the Negro slaves in that county. Since the Virginia countryside was still in a state of alarm over an abortive uprising led by a slave named General Israel several years before, no more serious charge against a witness could have been made.

That, warned The Gazette, “ought to make the court and jury extremely cautious in giving credence to witnesses on both sides until characters are examined. Such a man would not scruple to swear away a man’s life for a few dollars.”

In announcing his policy of impartiality Editor Ritchie had reserved to himself the right “unhesitatingly to give all the new facts as they offer themselves.” While Colonel Burr was free on bail an opportunity presented itself such as would delight the heart of any editor.

Richmonders in those days lived well. The farms outside the city provided a varied supply of meats, poultry, vegetables and fruits in season. The town was sufficiently close to salt water to be supplied with oysters and other seafood in spite of primitive methods of refrigeration. Mrs. David Randolph, who conducted a fashionable boardinghouse and was famous as cook and provider, was credited with having devised a cold box that served as a model for the first refrigerator in this country. Ships from abroad that dropped anchor at City Point, below the town, brought in consignments of the finest wines that, along with the rest of their cargo, were poled on flatboats upstream to the city market. In the spring of the year the James was alive with shad which came up to fresh water to spawn. For a naturally hospitable people the temptation to entertain was overwhelming.

A popular custom among the members of the legal profession was “lawyer dinners” at which the lights of bench and bar sat down together to partake of good food and drink and to engage in sparkling conversation. In this form of entertainment John Wickham excelled. He was among the élite who dwelt on Shockoe Hill and no household there enjoyed a higher reputation for serving the best of food. None boasted more capable servants than Bob, the butler, and Bob’s wife, the cook, who, under the guidance of Eliza Wickham, could prepare the most complicated dishes. No one, except for the most impelling reason, would decline an invitation to attend one of the Wickham dinners.

During the more than seven weeks between Colonel Burr’s commitment and the convening of the court on May 22, time was hanging heavy on the hands of the principals. It was not surprising that Mr. Wickham should have seized the opportunity to give a lawyer dinner and to introduce his distinguished client to this delightful local custom.

No one enjoyed a lawyer dinner more than the Chief Justice, whose wit and good humor made him a welcome guest. His house was within a stone’s throw of Mr. Wickham’s. He and the Chief Justice were good friends as well as neighbors and the Chief Justice had often been a guest of Mr. Wickham. What then was more natural than that Mr. Wickham should extend an invitation to Judge Marshall? Judge Marshall accepted the invitation and attended the dinner.

What none of them seems to have grasped was the obvious impropriety of the judge who was to preside at the trial appearing as a guest at a dinner given by the leading lawyer for the defense at which the defendant also was a guest!

The significance of the incident, however, was not lost on Editor Ritchie. The story of the dinner was soon public property. There appears to have been no attempt to conceal it. So for the issue of The Enquirer of Friday morning, April 10, Mr. Ritchie did not have to rack his brains to find an idea suitable for his acid pen. This issue contained an article signed “A Stranger from the Country.” It did not require a gift of clairvoyance to perceive that the “Stranger” was none other than Mr. Ritchie himself.

Said the Stranger: “In the Argus of the 7th it is stated, and the fact is now too notorious to be doubted, that the Chief Justice has dined with Aaron Burr at Mr. Wickham’s, since he himself solemnly decided that there was probable cause to believe Burr guilty of a high misdemeanor against his country.”

The editor first directed his attack at Mr. Wickham. He alluded to the old charge of Mr. Wickham having been a Tory in the Revolutionary War, indifferent to the fact that the same charge had been made against his own father. The people of Virginia, observed Mr. Ritchie, had generously forgiven that error of his youth. But Mr. Wickham “should modestly have refrained from recalling it to our recollection by entertaining a suspected traitor to the Union as his guest, a report so defamatory to his own fame.”

Having thus disposed of Mr. Wickham, the editor dipped his quill in acid and set to work on Judge Marshall. “I have never,” he confessed, “had any the least confidence in the political principles of the Chief Justice. I have never discovered in his public (for I am ignorant of his private) character, any of that noble candor which his friends have made the theme of such extravagant eulogium. I cannot discern in him, for my soul, those splendid and even Godlike talents, which many of all parties ascribe to him, his book certainly displays none such.” The allusion was to Judge Marshall’s recently published Life of Washington.

The Stranger continued: “But I have always been informed, and until now have believed, that he was a man of excellent judgment, most consummate prudence, and of a deportment highly decorous and dignified. I took his merits upon trust and bountifully gave him credit for good qualities I find he does not possess.” Mr. Ritchie now shook an accusing finger at Judge Marshall. “Let me inform the conscience of the Chief Justice that the public do not view his dining with Burr as a circumstance as trivial as he himself may incline to consider it.... We regard such conduct as a willful prostration of the dignity of his own character, and a wanton insult he might have spared his country.”

The writer then asked several questions that were on the tongues of many Richmonders and which for years after the event were to provide a subject for popular speculation. “I have searched in vain in my own mind for some apology for conduct so grossly indecent.... Was the Chief Justice ignorant that Burr was to be of the party to which Wickham invited him? If so, what are we to think of Mr. Wickham’s delicacy toward his friend? If so, why did not the judge leave the house as soon as he discovered the indignity imposed upon him?”

Then came the peroration: “Has the Chief Justice forgotten or neglected the maxim which is on the mouth of every tyro of the law—that the administrator of justice should not only be pure but unsuspected?”

The editor was not yet through with the Chief Justice. The incident continued to be “news” around the city, for in the issue of The Enquirer of Tuesday, April 28, Ritchie returned to the subject. This time his comments were contained in a column headed “Extract from a letter written by a resident of Richmond Hill to his friend in the country.” The Resident said he had been informed that Judge Marshall had been apprised of the invitation to Colonel Burr. But, commented the Resident, that could not have deprived him of his faculty of locomotion “unless he had been touched by the transforming wand of Circe.” Richmond was full of witty classicists. The reference to Circe’s wand, which turned men into swine, and its application to the magical effect of Mr. Wickham’s dinner on the Chief Justice could not have been lost on them.

“But,” continued the Resident of Richmond Hill, “perhaps the imagination of the judge was stronger than his appetite, and he had not fortitude enough to tear himself away from the prospect before him. In this the judge must pardon me if I am reminded of one of Goldsmith’s dishes of tongue with a small garnish of brains. Many judges have been condemned for the errors of the heart and the head, but I hope, dear F., that the list is not enlarged by errors of the appetite.”

At that point Editor Ritchie brought his torment to a close. As for the Chief Justice, he no doubt thought much, but he said not a word.

Professor George Tucker, Jefferson’s biographer, was present at the dinner and an eyewitness to what went on there. He made a report on what he saw, and what he did not see he said he got “from an authentic source.” According to Professor Tucker’s version, a few days after Colonel Burr had been released on bail Mr. Wickham invited him to dine with a large party, among whom was the Chief Justice, a neighbor and personal friend. But, on the morning of the dinner, realizing that there might be some impropriety in the situation, Mr. Wickham informed Judge Marshall that Colonel Burr would be among the guests.

Judge Marshall, however, being a man of delicate feeling, was afraid that if he were to withdraw at that late hour, after having accepted the invitation, he might be regarded as being unduly fastidious, and that such action might be interpreted as a censure on his friend. So he went to the dinner. “But,” testified Professor Tucker, “he had no communication whatever with Burr, sat at the opposite end of the table, and withdrew at an early hour after dinner.”

One version of the incident had it that the Chief Justice asked the opinion of his beloved wife Molly and that she advised against his going. But it was not like the judge to act contrary to her judgment. At any rate, concludes Professor Tucker, no one was more sensible of the indecorum than the Chief Justice, “but it was not an act of deliberation, but merely inconsiderate.”

As to the effect of the incident on the subject of his biography Professor Tucker remarks: “... it no doubt contributed to increase the alarm and apprehension of Mr. Jefferson, always sufficiently disposed to judge the Federal party with the same harshness that they judged him.” And well he might. Contemporary comments make it clear that then, as today, a judge dining in company with the man he is about to try and at the home of the chief lawyer for the defense is, to say the least, an inexcusable act of impropriety. As Editor Ritchie declared at the time, it is not the sort of thing that would be expected of a man of “excellent judgment, most consummate prudence, and of a deportment highly decorous and dignified.”

Chapter VI

On May 22 the Circuit Court of Appeals for the District of Virginia, before which Aaron Burr was to face the charges of treason and high misdemeanor, convened at 12:30 o’clock. But first a grand jury would have to be picked and pass on the charges. Far ahead of the hour a throng moved on the hall of the House of Delegates where the session was to be held. It was a throng composed solely of men, for a court of law in Virginia in those days was no place for a lady. Save in Virginia’s great debate on the ratification of the Constitution in the convention of 1788 Richmond had never before seen such a colorful and distinguished assemblage.

For days strangers had been descending on the city from all sides until the taverns and inns were filled to capacity. The hardier stock from the western outposts of the Commonwealth did not even try to find accommodations: they brought tents with them and camped on the low ground beside the river. Some came out of curiosity, others were there on court business. The administration’s offensive to counter the Chief Justice’s demand for witnesses to Colonel Burr’s alleged criminalities, directed by the Federal officials in the western country and spurred on by the tireless efforts of the patriotic Wilkinson, had borne results. It was estimated that persons concerned in the trial as counsel, witnesses, and in other official capacities reached a grand total of 200.

So large was the crowd in the hall that lawyers of long service at the local bar were forced out of their rightful places by officious interlopers. This was no commonplace gathering. Here and there could be distinguished men who had already made their names in history and others who later were to become famous.

Anybody who was familiar with the Navy would have recognized two veteran sailors, their faces bronzed by wind and sun and salt spray, who had served their country well. They were Stephen Decatur the elder and Thomas Truxtun, commodores both. Decatur boasted commendable service as a privateersman in the Revolutionary War, but he was to be overshadowed by his son of the same name. Truxtun, too, began his naval career as a privateer in the struggle for independence. Later he supervised the building of the frigate Constellation and, on her completion, took command and mustered her first crew. His latest exploits were the capture of the frigate L’Insurgente and the defeat in battle of the frigate La Vengeance in the quasi-war with France.

Present, too, was William B. Giles, loyal party man and President Jefferson’s leader in the Senate. He was there, oddly enough, under a summons of the United States Marshal for the Virginia District to be a member of the panel from which the Grand Jury was to be chosen. Burr thought it unreasonable, considering Giles’s politics. Soon he was going to say so.

There, too, was “General” Eaton, author of the affidavit, now present in person. The “Hero of Derne” wore a broad scarlet sash around his middle which provided an exotic touch to his costume and a silent rebuke to those who questioned his title and his fame. Eaton was a great talker and, so it was said, when not attending court spent the better part of his time at the tavern bars.

One might have marked a handsome young man with blue-gray eyes and a head of abundant chestnut hair. He was a stranger to Richmond and his accent betrayed a northern background. His name then meant nothing to anybody save the little group of Burr’s friends who had come down from New York to lend the prisoner moral support during the trial. This was Washington Irving, lately returned from a European tour. He had read law and been admitted to the New York bar; there was a report to the effect that he had actually had a client. But even at this early stage in his career he was more active with his pen. He and his older brother William, and William’s brother-in-law James K. Paulding, had just launched a sprightly magazine satirizing New York society under the title of Salmagundi. Brother William and Paulding were having to carry the burden while Washington was away.

William was a Republican, Washington’s sympathies were Federalist. Fastidious by nature, Washington rose superior to the unpretentious merchant family into which he had been born. The Irvings, on the other hand, were immensely proud of their precocious son and all too glad to give him a helping hand in his rise in the world. They liberally financed the trip to Europe and it had been a great success. There young Irving made the grand tour and lived in style in the Paris of Napoleon’s empire. He had himself fitted out by the best tailor. He sat for the rising young American painter, John Vanderlyn, then resident in Paris. The work seems to have been undertaken out of the sheer delight of the artist in having such a pleasing model.

On his travels Irving had made the acquaintance of two Virginia gentlemen of the bluest blood, a Mercer of Fredericksburg and Joseph Cabell, the Governor’s brother. He looked forward to renewing the acquaintance on his trip south, particularly that with Cabell who had just married Mary Walker Carter. Irving was told she was one of the wealthiest young women in the state. The young New Yorker was there on a literary retainer. It was said that some of Burr’s friends thought he might help the cause through his writings. But if any of his accounts of the trial ever got into the newspapers the record of them has been lost.

A familiar figure to most of the Virginians in the hall was a tall, gaunt man with absurdly long legs for so short a body who spoke in a high falsetto voice. His leather breeches and his riding boots identified him as a country squire. In actual fact he had ridden up to Richmond from his estate, Bizarre, some sixty miles to the south. This was the brilliant and eccentric John Randolph, master as well of Roanoke. A horse, he once said, was to him what a ship was to a sailor. A member of Congress, Randolph had acted none too astutely as one of the Managers, or prosecutors, in the impeachment trial of Judge Chase. He, too, had received a summons from the Marshal to appear for jury duty. Like the Chief Justice and Edmund Randolph, he was a part of the lengthened shadow of the prolific Turkey Island pair, William and Mary Isham Randolph.

Standing out conspicuously in that dense throng was still another youth. His height alone would have distinguished him, for he was 6 feet 4½ inches tall. Not content with looking over the heads of the crowd he climbed up on the great lock of the entrance door of the hall in order to get an unobscured view of the proceedings. From his perch he had a good look at the accused. Colonel Burr saw him, too. The young man was Winfield Scott. Years later, when he had become one of the nation’s great soldiers, the two met again and Burr reminded the general of the encounter. Contemporaries described Scott as the most magnificent youth in all Virginia.

At the time of the trial young Scott was reading law in the office of David Robertson, of Petersburg. Not only was Robertson well grounded in Blackstone and Coke and the intricacies of the Virginia statutes, he also was an accomplished linguist with a knowledge of five languages. What is more, he had trained himself to take notes in shorthand, and he was present at the trial to record the proceedings. Thanks to David Robertson, posterity has in two fat volumes a reliable verbatim account of much that was said at the trial. It was at Robertson’s suggestion that young Scott came to Richmond to get a first-hand impression of the leaders in what he then intended to be his chosen profession.

Better known to the Richmonders of the day than he was to be known to posterity was a queer Scotsman named James Ogilvie who was to be a regular attendant at the sessions. According to local gossip he was heir to an earldom and had passed up the title to become an impoverished schoolteacher in Virginia. Elocution was his forte and he not only came to the trial himself but brought his pupils along so that they could have a practical demonstration of the art of oratory from the greatest practitioners of the day. Ogilvie was in bad repute with the local clergy. Either an atheist or an agnostic, he traveled about delivering “infidel lectures.” He was blamed for shaking the religious faith of a number of Virginia’s young men. But the Devil got him in the end. As an elocutionist he failed to live up to his own exacting standards, grew melancholy, and committed suicide. Or so it was said. A less romantic account of his death attributed it to an overdose of laudanum, a drug to which he had become addicted.

On this day there were new faces both among the counsel for the defense and for the prosecution. Now associated with Edmund Randolph and John Wickham was Benjamin Botts, the youngest lawyer on either side, bubbling over with the wit and sprightliness of youth. Already he had made his mark at the Virginia bar.

When Caesar Rodney peremptorily retired from the case President Jefferson at once recognized that the plodding District Attorney Hay needed reinforcement. William Wirt seemed the ideal choice; the summons went out from the White House and Wirt accepted. Wirt’s Swiss and German background, which he inherited respectively from his father and his mother, showed itself in his curly blond hair, his blue eyes, and his fair complexion. He was built in heroic proportions, over six feet tall, broad-shouldered, with thick eyebrows, a wide forehead, a prominent nose, and ample chin. With his agreeable countenance he combined rare good humor and graciousness. A young woman who came under his spell remarked that Wickham was handsome but that he seemed insignificant in contrast to the manly beauty of Wirt. The same young woman observed that while Wickham went out of his way to please he could not suppress an air of condescension. Wirt, on the other hand, contrived to give the flattering impression, not that he was trying to please, but that he himself was being entertained.

Like Hay, Wirt was self-made. His father, too, was an innkeeper in the 1770’s, at Bladensburg, Maryland, a few miles north of the future site of the national capitol. At an early age William was left an orphan, but from the start he had the gift of making friends. Among other accomplishments he sang and played the violin. His schooling completed he read law, moved to Virginia, and was admitted to practice in Culpeper County. There he met and married a daughter of Dr. George Wilmer, a man of prominence in the community and a friend of Thomas Jefferson. Through his father-in-law Wirt was introduced to Jefferson and also to Madison and Monroe and was an ardent follower of what was known in the political world as “the Virginia dynasty.”

These early associations, combined with his own superior talents, played an important part in the fashioning of Wirt’s career. Five years after their marriage Wirt’s young wife died and the rising young lawyer moved to Richmond. For a time he held the office of clerk of the House of Delegates, then served briefly as Chancellor of Virginia. He was a frequent visitor at Gray House, the home of Colonel Robert Gamble, a prosperous merchant. This imposing dwelling, on a hill overlooking the James River and commanding an extensive view of the river valley and the rolling country of Chesterfield County on the other side, had been built for Colonel Gamble by Benjamin Latrobe, an architect recently arrived in this country from England. In 1802 Wirt took as his second wife Colonel Gamble’s daughter Elizabeth, and through that connection became the brother-in-law of Governor William H. Cabell who married Elizabeth’s older sister Agnes.

Wirt was well known to the Richmond bar where he had appeared in a number of important cases. A notable one was in defense of the nephew of Chancellor Wythe, law teacher of Jefferson and Marshall. The nephew was charged with the murder of his uncle by putting arsenic in his coffee. Wirt was reluctant to take the case and did so only under a sense of duty. He handled it so successfully that the nephew was exonerated. If that constituted a gross miscarriage of justice, as many then believed, the blame could not be put on Wirt. He was now to have an equally spectacular chance to show whether he would be as good a prosecutor as he had been a defender. At the time of the trial the Wirts were sharing the Gray House with the Gambles senior and the Cabells. It was a gay and accomplished household.

Present also with the prosecution was Alexander MacRae, who held the honorable office of Lieutenant-Governor of Virginia. One of the seven sons of a Scotch parson who was an ardent Tory in the Revolution, MacRae showed his independence by embracing the American cause and ending as an equally ardent Republican. He had a reputation at the local bar for a sharp tongue and a sour disposition. One observer remarked that where Wirt used a rapier MacRae’s favorite weapon was a meat axe. In contrast to Wirt’s bonhomie MacRae gave the impression of being completely indifferent to popularity. MacRae was among the elect in residence on Shockoe Hill. His house was within a stone’s throw of those of the Chief Justice and Mr. Wickham. Neighborly though they may have been, neighborliness did not extend to Mr. MacRae being included in Mr. Wickham’s notorious dinner.

So dense was the crowd in the courtroom that it was with difficulty that Chief Justice Marshall, clad in his robes of office, made his way to the bench. He was accompanied by Judge Cyrus Griffin, of the Federal district court, who sat with the Chief Justice throughout the trial.

Cyrus Griffin was no ordinary man. He was fortunate in being born the son of Col. Leroy Griffin, of Lancaster County, Virginia, and his wife, Mary Anne Bertrand. His parents sent him to be educated in England, a privilege that was reserved for the sons of the well-to-do. He studied law in the Temple, then met and married Lady Christina, daughter of John Stuart, sixth Earl of Traquair, in the Scottish peerage. On his return to this country, in spite of his years in England and his Scottish wife, he adhered to the American cause, was elected to the Continental Congress, and for a time served as its president. In politics he was a Federalist.

Now he sat beside Chief Justice Marshall. Once in the course of the long trial the Chief Justice inquired of Judge Griffin about past procedure, in a minor incident leading up to the trial, on which his recollection was vague. From Judge Griffin he received an answer. If the Chief Justice ever deferred to him again, if the Chief Justice so much as asked his colleague how he was bearing up under the heat, the record is silent on the matter.

At the time of the trial Judge Griffin had been on the Federal bench for 18 years. In the course of that long service there were many times when he had had to render decisions. In rendering them he must perforce have had to think. Cyrus Griffin was not a wax effigy. There must have been a heart beating under his judicial robes. He must have taken pride in his office. But if the Chief Justice, other than on the occasion mentioned, reflected that it would be considerate at least to make a pretense of consulting his fellow jurist, the record does not show it.

All we are told is that Judge Griffin sat on the bench with the Chief Justice. So he goes down in history as a footnote. But he should be a footnote in heavy black type. For in his humble position in that famous trial he was the perfect symbol of all the poor mortals whose fate it is to be just important enough to occupy a place on the stage, but to be given no speaking lines and to serve merely as background for the star performers.

But the chief object of attention was the prisoner at the bar. To many there Burr was already a well-known figure; others were seeing him for the first time. They craned their necks out of curiosity to learn what manner of man this was who had set to work to carve an empire in the Southwest and in so doing disrupt the nation. If Burr had been denied the opportunity to arrange the setting dramatically, as he had done for the impeachment proceedings against Justice Chase, he still was at liberty to give attention to his personal appearance. He had selected a suit of fine black silk and he wore his hair powdered, a picture of scrupulous neatness. His manner was calm, collected, and dignified, his mind apparently concentrated on the proceedings and indifferent to the stares of the curious. To Winfield Scott, who was watching him from the far end of the hall, he looked “as composed, as immovable as one of Canova’s living marbles.”

Impressive too was the Chief Justice. His admirers had accustomed themselves to the carelessness of his dress. They centered their attention on his majestic head, without a single gray hair, set on broad shoulders, his ruddy weather-beaten face, his dark luminous eyes approached in beauty only by the hazel eyes of Burr. It was frequently remarked during the trial that never before had two such pairs of eyes beheld each other.

Marshall’s friends spoke of him as the soul of dignity and honor, prudent, courageous, immovably resolute to do the right, “the Washington of the Bench.” Not so the champions of Jefferson. They saw him on the contrary as “suave, almost unctuous, wearing the mask of impartial benevolence” which was “to slip conspicuously more than once in the course of the trial ... revealing a partisan as malevolent as any that Jefferson ever faced.”

When the courtroom had quieted down proceedings were opened by the clerk calling the names of those who had been summoned for the Grand Jury. Burr was on his feet at once. He lost no time in making it clear that he was going to act as his own counsel. Learned in the law and thoroughly at home with court procedure he was not going to hesitate to interpose when he saw a chance to make a point in his favor. When he spoke his remarks were crisp and to the point.

Selection of the jury was now the object of his attention. Only a week before Burr had written to Theodosia: “The grand jury is composed of 20 Democrats and 4 Federalists. Among the former is W. C. Nicholas, my vindictive and avowed personal enemy—the most so that could be found in this state!” He referred to Colonel Wilson Cary Nicholas, a former member of Congress. By “the grand jury” Burr meant the panel of 24 men from whom the jury of 16 would be chosen. His immediate aim was to use every legal means to overcome the disadvantage of having the charges against him heard by a group composed chiefly of Jeffersonians and among them men he knew harbored a personal animosity toward him. He therefore begged to point out to the court that under the law the Marshal was required to summon twenty-four free-holders. But if any of them had been stricken off the list and others substituted in their places the act was illegal. He asked if such had been the case.

This afforded the first opportunity of the day for opposing counsel to warm to their task, and they debated the issue for more than an hour. At the conclusion of the arguments the Chief Justice ruled in favor of Colonel Burr and the names of the men substituted for the original twenty-four were removed.

Burr now was to exercise his right of challenge. The first juror to be dealt with was Senator Giles. It was he who, a few weeks before, in direct violation of Republican principles of the days of the Federalist alien and sedition laws, introduced the bill to suspend the writ of habeas corpus in the cases of Swartwout and Bollman and nursed it through the Senate. It was no fault of his that it met with ignominious defeat in the House.

However, in this instance he was no part of a plot to rob Burr of justice. He was there because the Marshal had called him. No sooner had Burr questioned his fitness to serve than Giles admitted prejudice and volunteered to withdraw.

Nicholas, who was questioned next, proved equally tractable. He made no attempt to conceal his dislike and suspicion of Burr. He recalled how he had opposed him when the presidential vote was thrown into the House of Representatives of which Nicholas was then a member. He declared that he had no desire to serve on the Grand Jury. But word had come to him that if he tried to withdraw an effort would be made to embarrass him by publishing certain things against his reputation. He hesitated therefore to retreat in the face of his enemies. Burr here interrupted to deny that any of his followers had made any such threat. Following this exchange Nicholas withdrew.