i£x ICtbrt0 SEYMOUR DURST When you leave, please leave this book Because it has been said "Sver'thing comes t' him who waits Except a loaned book." Avery Architectural and Fine Arts Library Giftoi Seymour B. Durst Old York Libr vry THE TRIAL OF AAEON BURR BY J^MES ALSTON CABELL of tnE Virginia Bar A paper read before the New York State Bar Association, at its Annual Meeting at Albany, January 17, 1900, and reprinted from the Proceedings of the Association ALBANY' THE ARCH'S COMPANY, PRINTERS 1900 With the Compliments of JAMES ALSTON CABELL, Richmond, Va. Digitized by the Internet Archive in 2014 http://archive.org/details/trialofaaronburrOOcabe THE TRIAL OF AARON BURR BY JAMES ALSTON CABELL of thk Virginia B \k paper read before the New York State Bar Association, at Annual Meeting at Albany, January 17, 1900, and reprinted from the Proceedings of the Association ALBANY THK ARGUS COMPANY, PRINTERS I900 THE TRIAL OF AARON BURR. > In this period of territorial expansion, when the fever of annexation is raping- over the land, and some of the best intellects of the country are devoting - themselves to the discussion of " Imperialism," it is interesting to remember that the first great American Expansionist was a citizen of Xew York — Aaron Burr. During the administration of the elder Adams, the rest- lessness of the people on the Spanish border had become so great, and the petty vexations, indignities and insults of Spain had become so unbearable, that a general belief had gained ground that war was inevitable. The prov- inces of South America, too, desired to resist the authority of Spain and establish an independent republic. With this end in view, Miranda and some of his fellow patriots, who hoped to procure the aid of both this country and Great Britain, had visited the United States and had laid before the most distinguished men of the country their plans for an American invasion. Such men as Knox, and Ham- ilton, and Jay, favored the project, and even Mr. Jeffer- son is alleged to have assented to it. The enterprise would, doubtless, have proceeded, had not Mr. Adams, who was at that time president, declined entering into the arrange- ment. Yon can well understand with what fascination such an undertaking would appeal to an ambitions and intrepid mind like Burr's. " From this period," says his biographer, " until 1805, Burr's mind seemed to be con- 4 stantly engaged in reflecting on the feasibility of the meas- ure, and the proper time for carrying it into effect. " He determined to raise an army for the invasion of Mexico. An extensive correspondence with various dis- tinguished men assured him of their countenance and co-operation in the event of a war with Spain. It was upon this event alone, that his principal force had con- sented to join his expedition. The fates appeared to favor the enterprise. The difficulties with Spain were increas- ing; many of the officers and soldiers of the regular army in the West were restless and dissatisfied with their inac- tivity, and the forbearance of the government; General Wilkinson, who was Burr's confederate, commanded the garrison on the frontier, consisting of a force of six hundred regulars, around which the followers of Burr were to form ; Wilkinson was to find an excuse for beginning hostilities; Mexico was ready to rise; the aid of the clergy had been secured ; and the Catholic bishop, resident at Xew Orleans, had given assurance of his approval and co-operation. To most of Burr's followers, this enterprise meant only a blow at Spain, and the conquest, and, probably, the ulti- mate " benevolent assimilation " of Mexico. Of this there can be no doubt, for such men as General Andrew Jack- son, and Admiral Truxton, who were in his confidence, believed sincerely in Burr's innocence, and stood by him to the last. To a Tew chosen ones, however. Burr seems to have revealed decidedly more ambitious designs. Tt is difficult to believe that he ever entertained the visionary notions attributed to him of " expelling the president, and driving, if need were, the Congress into the Potomac." It was generally believed, however, that his daring and desperate thirst for glory had led him to dream of wear- ing the diadem of the Montezumas, and that the great disaffection which existed at that time in the West, had 5 convinced him he could extend his empire to the Alleghanies. In these schemes he had enlisted General Jonathan Day- ton, an ex-Speaker of the House of Representatives, and later a Senator from New Jersey; John Smith, an ex- Senator from Ohio; General Adair, and oilier prominent men; but his main reliance was upon General Wilkinson, who betrayed him at the last moment by communicating to Mr. Jefferson the contents of the celebrated cipher letter he received from Burr. In the spring of 1805, after the closing of the session of Congress, Burr set out on a journey through the Western States. The object of this seems to have been to ascertain the sentiments of the people of the West upon the subject of a separation from the Atlantic States, to have an interview with General W ilkinson, to enlist recruits, and to make arrangements for his expedition. His sole ostensible object was the purchase of a large tract of land of Baron Bastrop, lying in the territory of Louisiana, or the W ashita river, con- taining four hundred thousand acres, upon which he con- templated the establishment of a colony. It was on this journey that he met Blannerhassett, an Irish gentleman of distinguished lineage, and renowned for his wealth and culture. He entered heartily into all Burr's projects, and his beautiful island home became the starting point of the expedition. In September, 1806,. Burr commenced active preparation for the settlement of his Washita lands, as he gave out. Reports were soon in circulation that the expedition had a highly criminal design, but these reports were attributed to the pre-existing prejudices against Burr. The preparations were made at Blannerhassett's Island, but Burr, leaving the details to others, proceeded down the Ohio to Kentucky, where he had hardly landed. 6 before the District Attorney asked for bis arrest, on the charge of being engaged in a military expedition against a nation at peace with the United States. Burr hastened to the court at Frankfort, as soon as he heard of the pro- ceedings, and insisted upon an investigation. The arrest was premature, and after several adjournments, from November third to different dates, on December fifth the grand jury returned " Not a true bill." As the District Attorney was a Federalist, the arrest was attributed to party spite, and the acquittal, as it was called, was cele- brated at Frankfort by a brilliant ball. He then pro- ceeded to Nashville where another grand ball was given in his honor. The country was by this time all ablaze with excitement, but Burr's great popularity with the people of the West, and the general impression that he was being persecuted, gave him the popular sympathy and support. Orders had been given to seize and destroy the expedi- tion that was being fitted out at Blannerhassett's Island, and the Ohio militia had been ordered out for the pur- pose. The Governor of Mississippi issued a proclamation charging Burr and his followers with being conspirators, to w hich Burr replied in a public letter, saying' his objects were lawful and honorable. Ignorant of Wilkinson's treachery, he went with the flotilla down the Ohio and the Mississippi, stopping boldly at the forts on the banks, and asking, and receiving favors. He was again arrested, a grand jury impanelled, and witnesses sent in to them. Instead of an indictment, they returned that Burr had not been guilty of any crime or misdemeanor, and went on to present as a grievance, the military expedition which had been fitted out against the person and prop- erty of Burr as unnecessary, without lawful authority, and as destructive of personal liberty; and the Natchez paper 7 said Burr and his men were handsomely received by the best people, and several balls were given to them as marks of respect and confidence. The court, however, refused to give Burr a legal release, and, learning that further and more arbitrary proceedings were intended against him by the Government, and perceiving the utter hopelessness of attempting to proceed, and feeling that his presence could only embarrass his companions, he dis- guised himself and fled. In attempting to reach Pensa- cola, where he expected to find refuge aboard of a British man-of-war, he was discovered, and arrested on the Tombigbee river, in what is now Washington county, Alabama. Burr's arrest was accomplished by a Major Perkins, who had never seen him before, but the wonderful bril- liancy of Burr's eyes, of which he had heard much, lead him to watch, and finally to apprehend him. After detain- ing him for two weeks in Fort Stoddart, Major Perkins started north with him, attended by a military guard. At Chester, South Carolina, Burr, observing a small collec- tion of people, got off his horse, and succeeding in getting to them, asked for a magistrate, and complained of being under an illegal arrest and military guard. Before any- thing could be done, however, Perkins, who was a very powerful man, seized Burr, and, putting him on his horse, hurried him away, for the remainder of the journey keep- ing out of the way of people as far as possible. He arrived at Richmond on the twenty-sixth of March, having been under guard since his arrest on the Tombig- bee river, on the nineteenth of February. On the thirtieth of March he was brought before Chief Justice Marshall on the charge of a high misdemeanor in setting on foot and preparing within the territory of the United States, a military expedition, to be carried on against the 8 dominions of Spain, with which the United States was at peace, and also of treason against the United States. The hearing look place in a private room in the Eagle Tavern, at that time the principal hotel in the city. Idle evidence introduced on this occasion consisted of a copy of the record in the case of Bollman and Swart- wont, containing the affidavits of General Eaton, General Wilkinson and others, and the verbal testimony of Major Perkins. After the evidence a motion was made for the commitment of the prisoner on both charges, and, as it was agreed a discussion was necessary, the hearing was adjourned — Burr being bailed in the sum of $5,000 for his appearance the next day at 10 o'clock. The next morning the court-room was crowded, but Bun" did not appear until ten-thirty. lie walked in with an uncon- cerned air, and apologized to the court, claiming he had misapprehended the hour. On the suggestion of coun- sel that it was impossible to accommodate the spectators in the court-room, Judge Marshall adjourned the hearing to the hall of the House of Delegates in the Capitol. This room was afterwards occupied by the Confederate Congress. After counsel had spoken. Colonel Burr arose, he said, not to remedy any omission of his counsel, who had done great justice to the subject. He wished only to state a few facts, and to repel some observations of a personal nature. He spoke of his hastening to meet the charge against him, his acquittal, as he called it, protested that his designs were honorable, and would have been useful to the United States; explained his flight; that it was from a military despotism, and the tyranny of a military escort that he wished to be delivered, not from an inves- tigation of his conduct, nor from the operation of the laws of his country. 9 ( )n April the first, Judge Marshall deliv ered his opinion, refusing to commit for treason, as the affidavits presented were insufficient, they having been so held in the ease ot Bollman and Swartwout, but required bail for his appear- ance on May twenty-second, to answer to the charge of high misdemeanor. Richmond was at that time tilled with visitors, and her citizens were lavish in their entertainments. Washington Irving, who was in Richmond as a young lawyer in Burr's interest, writes: " I have been treated in the most polite and hospitable manner by the most distinguished persons of the place, those friendly to Colonel Burr and those opposed to him, and have intimate acquaintances among his bitterest enemies. I am absolutely enchanted with Richmond, and like it more and more every day. The society is polished, sociable, and extremely hospitable, and there is a great variety of distinguished characters assem- bled on this occasion, which gives a strong degree ot interest to passing incidents." frving believed in Burr's innocence and was sincerely devoted to him, expressing the deepest sympathy for him. " The ladies," he writes, " have been uniform in their expressions of compassion for his misfortunes, and a hope for his acquittal ; not a lady, I believe, in Richmond, whatever be her husband's sentiments on the subject, w ho would not rejoice in seeing Colonel Burr at liberty." Colonel Burr's great reputation, the suggestion of his persecutions; the decided romance that surrounded him; the dignity and elegance of his demeanor, and the fasci- nating power of his address, could not fail to awaken interest and sympathy. He became the recipient of many attentions, especially from the opponents of Mr. Jefferson. During this time, and before the session of the court at which he was to appear. Mr. W ickham, one of Burr's 10 counsel, gave a large dinner party to which the Chief Justice was invited, h is said that, after accepting the imitation. Judge Marshall learned that Burr was to be present, but. fearing to wound the feelings of Mr. Wick- ham by refusing to attend, he went to the dinner, but had no intercourse with Burr. Realizing after he reached the house, the impropriety of his action, he soon retired from the entertainment. Another account is that he was not aware that Burr was to be a guest until he reached Mr. Wickham's house. This mistake was made the most, of by his enemies, and gave some color to the President's charge of partiality on the part of the Chief Justice towards Burr and his associates. Judge [Marshall was a Federalist in politics, and the Federal party were now espousing the cause of Burr. The relations between Judge Marshall and Mr. Jefferson were anything but pleasant. Marshall had written the Life of Washington, in which he had taken occasion to criticise severely Mr. Jefferson and the Republican party. The opinion the Chief Justice had delivered in Marbury v. Madison was regarded by Jefferson as a defiance to him. Marshall held that the action of the President was improper in withholding" commissions fully executed, from certain appointees of his predecessors, who had been confirmed by the Senate, but that the Supreme Court had no juris- diction to enforce their delivery by mandamus, because, though attempted to be conferred by Congress, it was not authorized by the Constitution — thus making the Con- stitution, as construed by the court, the supreme law of the land, annulling an act of Congress. Both of these positions were highly objectionable to Mr. Jefferson. Then Judge Marshall had delivered the opinion in Little v. Barrene, in which it was held that the President's orders to commanders of American vessels, to search 11 vessels leaving French ports, were illegal, and the com- manders liable in personal damages for obeying them. Jefferson was also deeply offended by the discharge of Bollman and Swartwout, who were associated with Burr: Mr. Jefferson's animosity was deep-seated. Years after his retirement, he wrote to Mr. Ritchie that the judiciary were undermining the foundations of our confederated fabric. " An opinion is huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty Chief Justice, who sophisticates the law to his mind by the turn of his own reasoning." Judge Marshall, by his very nature, was an opponent of Mr. Jefferson. The controlling motive with Marshall was the order of society. He was determined that the ventral government should have force and power enough to pro- tect its own life, and to enforce its lawful authority. With Jefferson it was the freedom of the individual, the unrestricted power of the States in dealing with matters of local concern. The friends of Burr had also a complaint against Judge Marshall, alleging " that a passage in his opinion in ex parte Bollman and Swart wont seemed to uphold the doctrine of constructive treason, a doctrine so murder- ously prominent in the history of English criminal law." This trying position in which Judge Marshall was placed, was, by no means, relieved by the personal and political turn that was attempted to be given to the trial. Burr contrived from the very start to quit his situation as an accused, and appeared to take the high ground of a public accuser, and an assailer of others, rather than a defender of himself, or, to use a modern expression, " the tiger hunted the Frenchman " from the beginning to the end of the trial. It was repeatedly declared by his 12 Counsel that the country had been filled with misrepresen- tations and calumnies against Burr through the agency of the Government, which was bitterly denounced; that he had been dragged from one end of the country to the other by a military force; that the prejudice of the coun- try had been enlisted against him; and that the prosecu- tion wished to draw out testimony that did not bear upon the case itself, but was only intended to inflame the public prejudices against him. As W illiam Wirt charged, the object of Burr's counsel was to divert the public attention from Burr and point it to another quarter, and, if possible, shift the popular displeasure. That was to make it a political question — a question between Aaron Burr and Thomas Jefferson. The arguments were brilliant, powerful and witty — at times violent and bitter. " The hell-hounds and blood- hounds of persecution," exclaimed Luther Martin, in his fury, " have been let loose by the President or his instrumentality, to hunt down and destroy Colonel Burr/' The attacks were of such a character that Wirt, in an eloquent reply, sharply rebuked the court for allow- ing the executive branch of the Government to be abused and reviled by the defense without interruption. Judge Marshall evidently felt the force of this, as he stated that the counsel on both sides had acted improperly in endeavoring to excite the prejudice of the people. The trial was, indeed, remarkable for the asperity with which it was conducted on both sides. Almost at the first stage of its progress, the court was obliged to com- ment upon the temper displayed by counsel. On May twenty-second, the court was thronged with spectators, both from Virginia and other States, many of them distinguished and conspicuous men. The United States Marshal had been told to secure a highly intelligent 13 grand jury, and he had got together some of the most prominent men in the Commonwealth. ( )n the bench presided a judge, on whose intellectual vigor and moral dignity time and long trial have conferred a eharacter of grandeur ; seldom has such an array of eminent counsel appeared together in any one case ; and many of the wit- nesses had national reputations. In that delightful little book, a The British Spy," written by W illiam Wirt, four years before this trial, are to be found graceful sketches of the judge and some of the counsel who participated in this trial. This book is a series of letters, purporting to be written by an Englishman traveling in Virginia. Of Judge Marshall he says: " The Chief Justice of the United States is, in his per- son, tall, meagre, emaciated; his muscles relaxed, and his joints so loosely connected as not only to disqualify him, apparently, for any vigorous exertion of the body, but to destroy everything like elegance and harmony in his air and movements: indeed, in his whole appearance and demeanor, dress, attitude, gestures — sitting, standing or walking — he is as far removed from the idolized graces of Lord Chesterfield as any other gentleman on earth. To continue the portrait : His head and face are small in proportion to his height ; his complexion swarthy : the muscles of his face, being relaxed, give him the appear- ance of a man of fifty years of age, nor can he be much younger : his countenance has a faithful expression of great good humor and hilarity ; while his black eyes — that unerring index — possess an irradiating spirit, which proclaims the imperial powers of the mind that sits enthroned within. " This extraordinary man, without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be con- 14 sidered as one of the most eloquent men in the world — if eloquence may be said to consist in the power of seizing the attention with irresistible force, and never permitting it to elude the grasp, until the hearer has received the conviction which the speaker intends. " He possesses one original and almost supernatural faculty — the faculty of developing a subject by a single glance of his mind, and detecting at once the very point on which every controversy depends. Xo matter what the question, though ten times more knotty than ' the gnarled oak." the lightning of heaven is not more rapid nor more resistless, than his astonishing penetration. Nor does the exercise of it seem to cost him an effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not My over a landscape and take in its various objects with more promptitude and facility than his mind embraces and analyzes the most complex subjects.'' " Gentlemen of the profession,'' says Parton, " who had witnessed the trial, who saw the effective dignity with which the judge presided over the court, who heard him read those opinions, so elaborate and so correct, though necessarily prepared on the spur of the moment, regarded it as the finest display of judicial skill and judicial rectitude which they had ever beheld." By the Chief Justice sat Cyrus Griffin, Judge of the District, an accomplished man, and an able and experienced judge. The prosecution was represented by Colonel George Hay, District Attorney for the United States. He was the son-in-law of Colonel James Monroe (afterwards President of the United States) and a zealous Democrat of the Jeffersonian school. lie was subsequently appointed Judge of the District. On the preliminary motion. Caesar Rodney, Attorney-General of . the United T 5 States, also appeared. Colonel llav was assisted by W illiam W irt and Alexander McRae. McRae, at the time of the trial, was Lieutenant-Governor of Virginia, and afterwards was consul at Paris. He was a man of very considerable ability, and of fine professional attainments. The leading counsel was William W irt. Then only thirty-five years of age, he had already established a repu- tation as a brilliant w riter and speaker. The integrity of his heart, the vigor of his faculties, and the extent of his attainments, had won for him general admiration. He was the most beautiful and polished speaker at the bar. Parton says: "Among the lawyers assembled that day within the bar, there w as not one whose rising to speak so instantly hushed the spectators to silence. A handsome, fortunate, happy, brilliant, high-minded man was William Wirt, the toil of whose lifetime it was to achieve those solid attainments which alone make brilliancy of utterance endurable in a court of jttstice." Many eloquent passages from the speeches Mr. Wirt delivered during this trial are treasured as models of oratorical skill. The exor- dium, in which he repels the charge, repeatedly urged, of personality and persecution of the accused : the famons picture of Blannerhassett's Island, and the passage in which he described the rhetorical arts employed against him by the opposite counsel. In his argument on the motion to commit Burr for trial in Kentucky, a vein of ridicule enlivens and enforces the reasoning into which the picture of the blasted ambition and the daring despair of Burr x is interwoven with great effect. It was at the personal request of Mr. Jefferson that he appeared for the United States. It is said that the friends of Burr designed to engage him. and would have done so, had he not been absent from Richmond at the moment. After- i6 wards. President Madison offered Mr. W irt a place in his Cabinet, but he declined it. preferring to follow his pro- fession. In 1816, Madison appointed him District Attor- ney, and the following- year he accepted the position of Attorney-( ieneral under Air. Monroe, l ie held this office for twelve years, through the entire administrations of Mr. Monroe and Mr. Adams. To Air. Wirt's graceful pen we are indebted for the "Life of Patrick Henry," which was the best tribute to that great patriot until the appearance of the splendid biography by his distinguished grandson, the Hon. William Wirt Henry. Colonel Burr was represented by a brilliant array of legal talent. The best known of these was Edmond Ran- dolph, who had been snccessively Attorney-General and Governor of Virginia, and Attorney-General and Secre- tary of State under Washington. He possessed great personal advantages, a figure large and commanding, his features uncommonly fine; and his whole manner that of an accomplished and engaging gentleman. His char- acter, with the people, was that of a great lawyer and eloquent speaker. John Wickham -was, in fact, the leading counsel for Burr. He was much younger than Air. Randolph, and in the prime of his physical and intellectual vigor. Mr. Wirt, in " The British Spy," says: " The qualities by which Air. Wickham strikes the multitude are his ingenuity and his wit. But those who look more closely into the anatomy of his mind, discover many properties of much higher dignity and importance. This gentleman, in my opinion, unites in himself a greater diversity of talents and acquirements than any other at the bar of Virginia. He has the reputation, and I doubt not a just one, of possessing much legal science. He has an exqui- site and highly-cultivated taste for polite literature; a 17 genius quick and fertile; a style pure and classic ; a stream of perspicuous and beautiful elocution ; an ingenuity which no difficulties can entangle or embarrass ; and a wit, whose vivid and brilliant coruscation can gild and decorate the darkest subject." Then, there was Benjamin Botts, a man of considerable ability, and of a clear, logical mind, who especially attracted the notice and commendation of the Chief Jus- tice. Also Charles Lee, who had been Attorney-General of the United States and a certain " Jack Baker," a merry fellow with plenty of horse wit and an infectious laugh; no speaker or lawyer, but " the best of good fellows." He took part just enough in the trial to get his name once or twice in the reports and thereby saved his name from oblivion. Washington Irving, too, was present, " on an informal retainer from some of the friends of Colonel Burr, who thought he might in some way or other be of service with his pen." The counsel of the widest reputation, however, was Luther Martin, ex-Attorney-Ceneral of Maryland. " who," says Parton, " in the single particular of legal learning, was the first lawyer of his day. His memory was as won- derful as his reading, so that his acquirements were at instantaneous command. Burr had become acquainted with him at Washington three years before, during the impeachment of Judge Chase, in whose defense he greatly distinguished himself." At that trial Aaron Burr, then Vice-President of the L nited States, presided with a dignity and impartiality that won the praise of friends and enemies alike. Martin was coarse in his manners, ungrammatical in his language, and careless in his dress and person. He was " a mighty drinker," and. though able to carry an incredible cargo of brandy, often exhibited unmistaken signs of being over-laden. He was i8 regarded as a powerful man. possessing many excellent qualities of the heart as well as the head. He entered upon the defense of Colonel Burr with all the zeal that the warmest friendship for his client, and intense political enmity to Jefferson and his administration, could inspire in his ardent and passionate nature. The real leader of the defense, however, was Burr him- self. Xot a step was taken, not a point was conceded, without his express concurrence. He appeared in court attired with scrupulous neatness, in black, with powdered hair and queue. His manner was dignity itself — com- posed, polite, confident, impressive. He had the air of a man at perfect peace with himself, and simph intent upon the business of the scene. It was observed that he never laughed at the jokes of the counsel, which, at some stages of the trial, were numerous and good. His speeches were short, concise, exact. (Parton.) He never lost his tem- per, and never, under any provocation, was betrayed into an offensive personal retort. The panel of the grand jury was composed of well- known and distinguished men ; I will mention some of them: John Randolph, of Roanoke, who was chosen fore- man, was afterwards I hiked States Senator and Minister to Russia; William B. Giles and Wilson Cary Nicholas, both United States Senators, and both afterwards Gover- nors of Virginia; Littleton Waller Tazewell, the dis- tinguished lawyer and statesman, who, both at the bar. in the Senate of the United States, and as Governor of Vir- ginia was classed with the foremost in the lajid; Joseph. C. Cabell, a man of rare genius and accomplishments, the father of the James River and Kanawha Canal, and the originator, and. with Mr. Jefferson, the founder of the University of Virginia; James Pleasants, a dis- tinguished lawyer, afterwards United States Senator and 19 Governor of Virginia; James Barbour, an eminent lawyer., and afterward United States Senator, Governor of Vir ginia, a Cabinet member and Minister to England ; William Daniel, a distinguished judge, whose son was the late Judge William Daniel, of the Court of Appeals of Virginia, and whose grandson is the present senior United States Senator from Virginia, John W, Daniel ; James Garnett, Member of Congress, and an able author; General Robert Taylor; and the others all men of high social standing, distinction and ability. After examining the panel, Burr objected to certain of them as improperly summoned — the marshal having excused some grand jurors, who had once been sum- moned, and substituted others on the panel in lieu of them. In this the court sustained him. He then claimed his right to challenge for favor, and two others were stricken off. Finally the grand jury were sworn. After the Chief Justice had charged them, dwelling on the definition of treason and the testimony requisite to convict. Burr asked the court to instruct them as to the admissibility of certain evidence which he supposed would be laid before them. Mr. Hay hoped the court would proceed, as it had always done before, and grant no particular indulgence to Colonel Burr, who stood, he said, on the same ground with every other man charged with crime. " Would to God," said Burr, " T did stand on the same ground with every other man. This is the first time I have been permitted to enjoy the rights of a citizen." He then referred to his treatment while under a military guard. After some dis- cussion, the Chief Justice, observing he had not made up his mind on the questions raised. Mr. Hay pledged him- self that no evidence should be laid before the grand jury without notice being first given to Burr and his counsel, and the discussion was postponed. 20 The next clay the prosecution gave notice of a motion to commit Burr on a charge of high treason. On the previous examination, they said there was no evidence of an overt act, and he was committed for a misdemeanor only. It was contended for Burr that the court had no power to commit after the grand jury had been empanelled, and that if it had, under the circumstances of this case, the court ought to restrain its exercise. After a lengthy debate, the court held that the motion could be made before any action was taken by the grand jury, and directed the evidence to be introduced, on which it would rest. Then began a contest as to the order m which the evidence should be introduced — it being insisted for Burr that no evidence of treasonable intention should be given until it was first proved that an overt act of treason had been committed : the prosecution wishing to introduce the evidence in the chronological order. After much discussion, the Chief Justice said that no evi- dence, certainlv, had any bearing on the case, unless an overt act was proved ; however, he would let the counsel pursue their own course, but trusted to them not to pro- duce anything that did not bear upon the case. But little headway could be made by the prosecution without General W ilkinson, who had been ordered by the President to leave his post at New Orleans and attend the court at Richmond. W hile they were waiting for him. Burr moved the court to issue a subpoena to the President, with a clause requiring him to produce a letter from General Wilkinson, and also certain orders of the Army and Navy Departments, which he claimed con- tained instructions to destroy his person and property while on a lawful expedition. This produced an able debate that lasted five days, during which Mr. Hay prom- ised to write for the papers, but Burr's counsel said they 21 might not be sent, and that they did not feel disposed to rely on the favors of an adverse party. The objections urged were, that until the grand jury found a true bill, the party accused was not entitled to subpoenas, nor to the aid of the court to obtain testimony; that a subpoena duces tecum could not be directed to the President, and ought not to be in this case; and that it was inexpedient to reveal State secrets. In any event, it was not a process of right, but the application was addressed to the discre- tion of the court. On the fourteenth, the Chief Justice delivered an opinion granting the motion, in which he said, that there was no exception whatever to the pro- vision of the Constitution (eighth amendment ). and of the statute, which give to the accused a right to the compul- sory process of the court ; that they were general, and no one could claim exemption from them : that if the Presi- dent's duties demanded his time when his attendance on court was required, that would rather constitute a reason for not obeying the process of court, than a reason against its being issued. " The guard furnished to this high officer," said he. " to protect him from being harassed by vexations and unnecessary subpoenas, is to be looked for in the conduct of the court after those subpoenas have issued, not in any circumstance which is to precede their being issued." If the object of this motion was to annoy the President, it certainly accomplished its purpose. Both the decision and the character of the debate aroused Mr. Jefferson to anger. Luther Martin insisted that the bodily presence of the President might and should be compelled by the court, and was unsparing in his attacks upon Mr. Jeffer- son. The President wrote to Hay, denouncing Martin, called him " an unprincipled, impudent Federalist bull dog," charged him with being a co-conspirator with Burr, 22 and suggested his arrest and prosecution. He directed the Attorney-General to turn over to Colonel Hay the letter of Wilkinson, Colonel Hay to produce only such parts as he thought proper and pertinent to Burr's defense, and asked for more specific description of the orders of the Army and Navy desired. He refused to appear in court as a witness, intimating that if the court attempted to enforce its writ, he would forcibly resist it ; that the Constitution, which enjoined the President's con- stant agency in the concerns of six millions of people, was a law paramount to that which calls on him on behalf of a single individual : that the leading principle of our Consti- tution was the independence of the legislative, executive and judiciary of each other, and none were more jealous of this than the judiciary: that if he were subject to the commands of the latter, the courts would bandy him from pillar to post, and withdraw him entirely from his consti- tutional duties. The court, although moved to do so, did not attempt to enforce its process by attachment, but let the matter drop, with the idea that, although the accused had a right to have the writ issue, the 1 'resident had the right to say whether his duties, as chief executive, pre- vented his obeying it in person. Another episode that occurred during this time was the attempt of the prosecution to make Dr. Bollman testify. Hay had obtained a pardon for him from the President, for the purpose of preventing his claiming that he would criminate himself by testifying. The reputation Dr. Boll- man had gained by his daring attempt to rescue Marquis La Fayette made him a conspicuous figure, both in this country and in Europe. Hay told the court that Dr. 1 'oilman would neither positively accept nor decline the pardon. lie now. however, positively declined it. although Mr. Hay, in the most dramatic manner, inti mated that it would lead to his being indicted For treason. Then I [ay insisted that he was already pardoned, and must testify. Burr's counsel claimed that he was not, and. in any event, the pardon could not be effectual before it was pleaded to an indictment in open court, and it would not protect him against an indictment by the grand jury. General Wilkinson, who had been looked tor. day alter day. and week after week, at la^t arrived. Washington Irving writes (June twenty-second): "Wilkinson, yon observe, has arrived. The bets were against lUirr, thai he would abscond, should Wilkinson come to Richmond, but he still maintains his ground, and still enters the court every morning with the same serene and placid air that he would show, were' he brought here to plead another's cause, and not his own.'" Wilkinson had taken his time on the journey, and got to Richmond only on June fourteenth. The next day he appeared in court in full uniform. As the portly form of the general advanced to the clerk's desk to be sworn, all eyes were turned upon him, except those of Burr, who was conversing with his counsel. Presently he turned slowly around, and as his brilliant eyes met those of \\ il- kinson, they gave an expression of withering contempt. Wilkinson's experience in Richmond was a most dis- agreeable one. He was remembered principally for his connection with the Conway cabal, formed to displace General Washington from the command of the Conti- nental Army. As Burr arose in favor in Richmond, W ilkinson became more and more the object of dislike As it was necessary to discredit his testimony, the counsel went out of their way to denounce him. and a motion was made, and vigorously pressed, for an attachment against him for attempting to obstruct the free adminis- tration of justice by using his military authority to intimi- date and coerce witnesses. Considering himself insulted 24 by John Randolph while before the grand jury, he chal- lenged him, and was told by Randolph in reply: " I cannot descend to your level." Randolph had, indeed, most bit- terly denounced him. and wrote of him to a friend: Wilkinson is the only man I ever saw who was from bark to core a villain. * * * Perhaps yon never saw human nature in so degraded a situation as in the person of Wilkinson before the grand jury." And he declared he would not have voted for the indictment of Burr, had he not believed Wilkinson would have been indicted also. It is said that when Wilkinson entered the jury room in uniform, with his sword by his side, Randolph called in (he marshal and .said to him: " Take that man out and d; arm him. 1 will allow no attempt to intimidate the jur\ . Swartwout, of Xew York, meeting Wilkinson on a narrow sidewalk, threw him into the street, and afterwards chal- lenged him, and. upon Wilkinson declining to accept, on the ground that he did not recognize traitors as his equals, he posted him as a coward in the Virginia Gazette. On June twenty-fourth, the grand jury brought in indictments against Aaron Burr for treason and also for misdemeanor. Similar indictments were brought in against Blannerhassett, and, on the next day, against five of their associates, among them ex-Senator Smith, of Ohio, and ex-Senator Jonathan Dayton, of Xew Jersey. Burr was committed to the custody of the marshal, who took him to the city jail, but, on the following day, on affidavits of his counsel, that confinement in the jail would endanger his health and prevent his having access to his counsel, the court permitted him to " be removed to his Former lodgings, near the Capitol, provided they could be made sufficiently strong for safe keeping." This was done to the satisfaction of the court. This building stands on the corner of Ninth and Broad streets, and is known as Blair's Drug Store. ^5 After another very long discussion, the court finally decided to order a venire of forty- eight petit jurors, twelve of whom, at least, were to be summoned from Wood county, in which Blannerhassett's Island was situated, and where the act of treason was laid. In order to enable the marshal to summon the twelve men from Wood county, on June twenty-ninth the court adjourned to August third. The District Attorney insisted that Burr should be moved to a place of greater safety than his lodgings, and it looked as if he would have to go to the jail. The situation was relieved, however, by Governor Cabell's putting at the disposal of the court apartments in the new part of the State penitentiary. Burr's situation here, says Parton, was extremely agreeable. He had a suite of three rooms, in the third story, extending one hundred feet, where he was allowed to see his friends without the presence of a witness. His rooms were so thronged with visitors, at times, as to present the appear- ance of a levee. Servants were continually arriving with messages, notes and inquiries, bringing fruits and delica- cies of every description — presents from the ladies of the city, who esteemed him a persecuted martyr. The jailer, too, was all civility, and Burr gives a very amusing account of the deference paid him by the officials. When the court met on August third, the hall was crowded with anxious spectators. Burr, accompanied by his son-in-law. Governor Alston, of South Carolina, entered the room in his usual bright and good-humored manner. Fourteen days elapsed before a jury were sworn. Few, if any, of the Wood county men were accepted, and the jury was composed of men who had been summoned from k> the body of the district." These were all of high social position, and most of them men of eminence. The foreman of the jury was General Edward Carrington, who had been offered by Washington a place in his Cabinet. He was Vice-President of the Society of Cincinnati and a man of large wealth and influence. When he was examined, he stated that he had formed an unfavorable opinion of Colonel Burr, and that he had expressed the opinion that in such an extreme case he would have acted in the manner General Wilkinson had done. Instead of objecting to him. Burr asked him : " Have you any prejudice. General, of a more settled kind or more ancient date against me?" He replied: " None at all." " He is elected," said Burr. All the venire of forty-eight had formed unfavorable opinions. But four men were found whose opinions were sufficiently undecided to admit of their acceptance, and a second venire of forty-eight was summoned, with almost like results. Burr was an excellent judge of men, and many who said the}' had expressed strong convictions against him, were accepttl by him. He usually said to them: " Notwithstanding your impressions, I can rely upon your integrity and impartiality." One young fellow, when called, said he was disqualified, because he had said to a friend that he had come to town with a hope of being placed on the jury, and if he was, he would hang Colonel Burr at once without further inquiry. " Perhaps," said Burr, " the words were used through levity. Do you think they would be sufficient to warp your judgment?" To this he answered: " No." " Then," said Burr, " you are not disqualified." It must be remembered, however, with what an unusual class of jurors Burr w as dealing. On August seventeenth the jury was sworn, and after the statement of the case was made by counsel, a contest arose as to the order in which the testimony should be offered, the defense claiming that the overt act of treason should be first proved before any testimony could be allowed connecting the accused with it. After a long- debate, the court decided to allow the prosecution to 27 introduce their evidence in the order they thought best, reserving the right to exclude such as appeared to be irrelevant. A great number of witnesses were present, among" them many well-known men, as General Wilkinson, Gen- eral William Eaton, Admiral Truxton, Dr. Erick Bollman, Benjamin Stoddert, Andrew Jackson, Stephen Decatur and others. Article III, section 3 of the Constitution provides, that " treason against the United States shall consist in levy- ing war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be con- victed of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court. Congress shall have power to declare the punishment for treason," etc. Congress had declared that the punish- ment should be death. The indictment charged Burr with levying war against the United States at Blannerhassett's Island, December 10, 1806, and with proceeding down the Ohio river with the traitorous design of taking possession of Xew Orleans, all within the district of Virginia and jurisdiction of the court. From the beginning the law had been laid down by the defense as follows : First. It must be proved that there was an actual war. Secondly. The war must not only have been levied, but the accused must be proved to have committed an overt act of treason in that war. Thirdly. The overt act by the accused, in an actual war, must be proved to have been committed within the district in which the trial takes place, and. Fourthly, The same overt act must be proved by two witnesses. A number of witnesses were examined. The evidence proved that numbers of persons, amounting to some thirty 28 or more, had assembled in warlike array, on Blanner- hassett's Island, in the Ohio river, near Marietta, Decem- ber jo, 1806, with a purpose, as it was affirmed, to proceed down the river, and, with the assistanee of others, to seize the city of New Orleans, under the pretense of the ulti- mate invasion of Mexico. It was not proved that* Burr was present with these men on the island. All the evi- dence of the overt act at their command having been intro- duced, the prosecution was about to introduce collateral evidence, intended to connect Burr with the occurrence, the overt act not having been proved, as required by the Constitution, and it being admitted that Burr was not' on the island at the time. His counsel, therefore, moved the court to arrest the further examination of witnesses, on the ground that such testimony was irrelevant and inadmissible. Upon this motion arose the greal and decisive argu- ment in the case. It began 011 the twentieth and closed on the twenty-ninth of August. The article of the Constitution defining treason is in the exact words of the statute of Edward 111, passed in the twenty-fifth year of his reign. This statute had been the subject of numerous decisions, and had been often dis- cussed by text writers. In many of these decisions, the construction of the statute had been confounded with the doctrine of compassing the king's death, which had grown up and been adopted by the courts for the attain- ment of the great object of providing a safeguard for the life of the king. All the authorities in England and America were thoroughly examined and considered, and their application to the question before the court dis- cussed with great ingenuity, skill and eloquence. Most learned arguments were made upon the application and effect of the Constitution of the United States, and upon the question of whether there was any common law 29 belonging to the United States at large, especially in criminal cases. A wide scope was given counsel for argil ment, but in a paper of this character ii will be impossible to give even an outline of the various subjects discussed in the ten days of argument. Mr. Parton very justly saws: " It was doubtless the richest display of legal knowl- edge and ability of which the history of the American Bar can boast." The Chief Justice delivered his famous opinion, sustain- ing the motion, on August the thirty-first. lie decided that the testimony introduced did not come up to the requirements of the Constitution, and. consequently no evidence to connect Burr with the facts proved was admis- sible. He held that there must not only be an assemblage of armed men, but the employment of actual force, to con- stitute levying war. In this most elaborate and profound opinion, which occupied nearly three hours in reading, the Chief Justice excluded from the case a large amount of testimony which might have shown Burr's intentions. As soon as the opinion had been delivered, Mr. Hay asked the court to grant them time to consider it. but, haying nothing to offer the next morning, the case was submitted to the jury without argument, who in a short time, returned the following verdict: " We, the jury, say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We, there fore, find him not guilty." Burr sprang from his seat and objected to this verdict as unusual, informal and irregular, and he asked that it might be given in the usual way — simply " Not guilty." " They have no right to return a written verdict at all." said Burr ; " they have no right to depart from the usual form." He then called for the recital of the directions given the jury by the clerk. They were read and end as follows : 3Q "If you find him guilty, you are to say so; if not guilty, you are to say so, and no more." " The jury cannot be indulged," said Burr. " They have defaced a paper belonging to the court, by writing upon it words which they have no right to write. They ought to be sent back." Some of the jury seemed indis- posed to make the change, and, after a discussion, the Chief Justice remarked that the verdict was, in effect, the same as a verdict of acquittal, and decided that it should remain as found by the jury ; and that an entry should be made on the record of " Not guilty." On the ninth of September, Burr was again arraigned, upon an indictment for a misdemeanor, which consisted of seven counts, the substance of which were that Aaron Burr did set on foot a military enterprise, to be carried on against the territory of a foreign prince, viz., the Province of Mexico, which was within the territory of the King of Spain, with whom the United States were at peace. . After the prosecution had examined some of their wit- nesses, and the court had decided that the testimony of others was not relevant, the District Attorney made a motion to discharge the jury. To this motion Burr objected, insisting upon a verdict. This was on the fifteenth of the month. The court, being of opinion thai the jury could not, in tin's stage of the case, be discharged, without the consent of the accused, and that they must give a verdict, they accordingly retired, and very soon returned with the verdict of " Not guilty." The result was a great disappointment to the prosecu- tion. " Marshall has stepped in between Burr and death, " wrote Wirt to Dabney Carr. Burr, having been discharged on both indictments, those against Blannerhassctt and the others were not prosecuted. Burr and Blannerhassett were required to 31 enter into a recognizance in the sum of $3,000 each, for their appearance at Chillicothe, to answer to a charge of misdemeanor, " For, that whereas, they prepared an armed force whose destination was the Spanish Terri- tory/' etc. Of this, however, no notice was even taken. In a letter to his daughter. Burr wrote: " Mr. Hay immediately said that he should advise the Government to desist from further prosecution. That he has actually so advised, there is no doubt." Blannerhassett, in his journal kept during the trial, says, when he visited Burr on September thirteenth, lie found him as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption, when, Blannerhassett thought all of his energies ought to have been devoted to the destruction of his enemies. In fact, Burr visited Eng- land with the view of reviving his schemes, which he always insisted were lawful, but, not meeting with success, he returned to Xew York and devoted the remainder of his long life to his profession. Although acquitted, the country refused to believe him innocent, but regarded him as a traitor. A terrible fall for a man who had once stood, both with the leaders and with the masses of his party, second only to Jefferson him- self, and between whom it had required thirty ballotings to settle the struggle for the Presidency: of which strug- gle. Bayard had written to Hamilton (March 8, 1S01), that Burr might have been elected President " by deceiving one man (a great blockhead) and tempting two (not incorruptible)." Burr always claimed that his projects were lawful, and would have been beneficial to the country. He frequentlv referred to the fact that he had to rely for aid upon asso- ciates, who, it was known, would countenance no treason, and on his death-bed he said he would as soon have 32 thought of seizing the moon and parceling it out among his followers, as of separating the Western States from the Union. Stout old Admiral Trnxton testified in his favor, and General Andrew Jackson said lie had seen nothing wrong- in the project, and had agreed to favor it. It is said that while Jackson was waiting in Richmond to testify, he was always ready to mount his hotel steps and denounce General Wilkinson and Mr. Jefferson to the crowds that assembled to hear him. However, the gen- eral verdict of the country has always been against Burr. The first tidings Mr. Wirt received of the apprehension of Burr, and of his being sent to Richmond, was in a letter from his wife, lie wrote Iter: "I should not be much surprised if he is discharged on a petition to the judge, or let to bail, and make his escape again. If the man is really innocent, these persecutions will put the devil in his head, unless he is more than a man in magnanimity." * * * Mr. Wirt afterward became convinced of Burr's guilt. Jefferson certainly believed that Burr was guilty. Burr's enterprise," he wrote to a friend. " is the most extraordinary since the davs of Don Quixote. It is so extravagant that those who know his understanding would not believe it. if the proofs admitted doubt. He has meant to place himself on the throne of Montezuma, and extend his empire to the Alleghanies, seizing on New Orleans as the instrument of compulsion for our Western States." Judge Marshall's opinion gave great offense to Mr. Jefferson and his friends, and it was at the time severely criticised. At length, however, it became acknowledged as right, and is now universally approved; and. as has been well said. " it has had the effect of pre- venting in this country the disgraceful prosecutions for treason which so blot the pages of English history."