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.