CHAPTER no inconsiderable degree of self-conceited gasconade, for

XIX. having, while minister in England, endeavored to inter1807. pose some obstacles to his migration to America. It is

exceedingly difficult for us at this day to comprehend the degree of influence exercised at that time over American politics by a few immigrant foreigners. The completely successful Clintonians carried the state as well as the city, electing their governor, and a majority in both branches of the Legislature, which gave them, prospectively, the Council of Appointment, with the whole control of the politics of the state.

While these various affairs occupied attention, the eyes of the public were drawn to Richmond, where Burr, March 30. shortly after his arrival there from Mississippi, under a

guard, on his way to Washington, had been examined. and held to bail upon a charge of setting on foot, within the territories of the United States, a hostile expedition against the Spanish provinces.

It had been decided by the Supreme Court of the United States, in the case of Swartwout and Bollman, that although, by the Federal Constitution, treason consists only in levying war against the United States, yet that an overt act of levying war may be committed not only without the use of any actual force, but even without the bodily presence of the party charged. The array of an armed force-so the court had expressed their opinion with intention to overthrow the authority or resist the laws of the United States, amounted to an overt act of levying war, of which all those were guilty who had any direct connection with it, though not actually present.

Under this view of the law, an indictment for high treason was presently found against Burr by a grand jury for the District of Virginia, selected by the marshal

from among the most eminent inhabitants.

The levy- CHAPTER

XIX.

ing of war relied upon was the collection of armed men at Blennerhasset's Island, within the limits of Virginia, 1807. of which it was proposed to prove that Burr, though not personally present, had been the cause and instigator, he having been concerned with Blennerhasset and others in the concoction of a scheme, in which these men were to co-operate, for overturning the authority of the Federal government in the Western country generally, or, at least, in the Territory of Orleans.

The trial, and also the hearing of several preliminary and interlocutory motions, took place before Chief-justice Marshall, who presided with great dignity, ability, and impartiality, holding the court in conjunction with Griffin, the district judge. The prosecution was conducted by Rodney, the attorney general, assisted by Districtattorney Hay, and by William Wirt, already holding a conspicuous position at the Virginia bar. The prisoner was defended by Edmund Randolph, formerly attorney general and secretary of state, Luther Martin, and other eminent counsel; and every point, from the beginning to the end of the proceedings (which, owing partly to the absence of witnesses, were protracted through the entire summer), was contested with the greatest keenness, vehemence, and even passion.

The guilt or innocence of Burr, like every thing else in those times of excitement, had been made a party question, and was discussed with exceeding earnestness. The Federalists, by way of throwing odium and ridicule on the administration, were inclined to make light of the whole affair of Burr's enterprise, and especially of the charge of treason, as a mere chimera of fear, fancy, hatred, treachery, and revenge. The Democrats, on the other hand, seemed to regard the conviction of Burr as

CHAPTER necessary to the vindication of the steps taken by the adXIX. ministration to defeat his enterprise; and they charged 1807. the Federalists, to whom they were inclined to turn over Burr, as belonging to them rather than to the Democratic party, with being apologists for treason, and with seeking to screen Burr from the punishment due to his crimes. Jefferson had neither forgotten nor forgiven Burr's interposition between him and the presidential chair. He watched the progress of the trial with the greatest interest; sent directions to the prosecuting officers; nor did he hesitate, in his private correspondence, to throw out frequent insinuations against the conduct of the chief justice-insinuations re-echoed by many of the Democratic papers, but wholly ungrounded. It was, indeed, the impartiality of the chief justice which made him appear partial to these hot and one-sided partisans. An important interlocutory decision allowed the issue, on the prisoner's motion, of a summons to the president to produce certain papers deemed essential to the defense. In the prosecutions growing out of the Miranda expedition, Jefferson had directed his secretaries not to obey the summons of the court to be present and to testify on behalf of the prisoners. The present decision he seemed to consider as a direct personal insult to himself. Yet Marshall, while sustaining the prisoner's right to have the summons issued, had declared that the court would not allow such process to be used as a means of personal annoyance; and had been very cautious about indicating any disposition to enforce obedience to the process any further than the president's own sense of justice, of what might be due to the prisoner on the one hand, and to the public on the other, might induce him to yield it.

The trial on the main question, which did not fairly

XIX.

commence before the beginning of August, occupied CHAPTER nearly the whole of that month. The greatest efforts of Burr's counsel were directed to destroy the testimony of 1807. Eaton and Wilkinson; în the latter case by insinuations Aug. 3. that Wilkinson was, in fact, an original confederate of Burr, who, having betrayed him, to add greater weight to his treason had attempted to magnify his guilt. To give additional color to this charge, it was also insinuated that Wilkinson had been a Spanish pensioner, engaged of old in intrigues against the Union. The Federal newspapers eagerly caught up and repeated these calumnies; and, being subsequently urged by John Randolph, and other bitter and persevering enemies of Wilkinson, they became matters of investigation by committees of Congress and military courts. The honorable acquittals of Wilkinson pronounced by these tribunals, after a thorough sifting of the facts, seem well sustained by the evidence. Yet such charges, once made, are with great difficulty wholly silenced; and these insinuations against Wilkinson still continue to float in the public mind, and to be rashly repeated to his injury by writers who know very little of the facts. An effort to break down Eaton by evidence as to his military conduct while stationed in Georgia, proved a total failure, rebounding with great force upon the heads of the witnesses by whom it was attempted.

The evidence being all in, the counsel were heard at length on the question of its sufficiency to lay the foundation for a charge of treason. Marshall's opinion and the decision of the court was, that the prosecution had Aug. 31. failed in two essential points. It was not proved that there was any military array on Blennerhasset's island. Thirty or forty men had assembled there, but it did not appear that there was more of military organization

CHAPTER among them, or that more were armed, than was cus

XIX. tomary among similar companies of boatmen and emi

1807. grants. Nor, in the second place, even had a military

array been proved, did it appear that Burr or Blennerhasset had any thing to do with the presence of these men on the island. They came, it appeared, from up the river; but it did not appear that Burr had any agency in their enlistment or embarkation. Under this charge Sept. 1. the jury returned a verdict of not guilty; whereupon the indictments for treason which had been found against Blennerhasset, Dayton, Smith of Ohio, Tyler, and Floyd, were abandoned.

Sept. 9.

A second trial followed, on a charge of setting on foot a military expedition against the Spanish territories; but, as evidence was excluded of all acts with which Burr could not be directly connected, and which had not occurred in the District of Virginia, this also resulted in Sept. 15. a verdict of not guilty.

A long examination was then gone into to show that Burr and Blennerhasset, one or both, might have committed treason by a military array with intent to levy war against the United States, at the island at the mouth of the Cumberland River, or lower down on the banks of the Mississippi; or at least that they might have been guilty of a misdemeanor in setting on foot an expedition against the Spanish provinces; and the court was requested to commit them for trial in any district in which they might seem to have perpetrated either of these of Oct. 20. fenses. Finally, they were committed for trial in the District of Ohio upon the charge of setting on foot a military expedition against the provinces of Spain, and they accordingly gave bail for their appearance, each in the sum of three thousand dollars. But they failed to appear, their recognizances were forfeited, and no trial was