The Grand Jury had been selected. Counsel for the prosecution and the defense were present with the one important exception of Luther Martin. The audience was packed into the courtroom, impatient for the spectacle to go on. But there was an impelling cause for delay—the Government’s star witness had not turned up. Government’s counsel offered reassurances, yet they could not hide the fact that they did not know just where General Wilkinson was.

It is a considerable distance from New Orleans to Richmond, and, at the turn of the nineteenth century, transportation was primitive. One route Wilkinson might take was overland through wildernesses and by tortuous roads and trails. It had taken Burr and his captors three weeks to make the journey from Alabama to Virginia. It was more probable that the portly Major General, who liked his comfort, would choose a sea voyage. But that would put him at the mercy of wind and tide. To add to the uncertainty, the General was an inveterate procrastinator with an utter disregard for time.

Counsel for the defense made the most of the prosecution’s embarrassment. They enlarged upon the great inconvenience members of the Grand Jury were being put to, and that of the many witnesses waiting to be called. They expressed doubt as to whether Wilkinson would ever show up. Many thought him as guilty as Burr. Might he not prefer to flee the country rather than face Aaron Burr in person and possible exposure in Richmond?

Hay pleaded that allowance be made for a man “of General Wilkinson’s age and bulk to travel to this city.” To which Mr. Randolph of the defense retorted: “Surely there is enough time to travel from New Orleans to this city in seventeen days, even with the gigantic ‘bulk’ of General Wilkinson himself.”

General Wilkinson’s protracted absence left a void that somehow had to be filled. Mr. Hay of the prosecution was the first to try to fill it. When court met on the morning of Monday, May 25, he offered a motion that Colonel Burr be committed for treason. His contention was that new evidence had appeared since the Chief Justice refused commitment for treason earlier in the proceedings.

The defense immediately protested, Mr. Botts acting as spokesman. The motion, he declared, took them completely by surprise. It was their understanding that no such action was to be taken by either side without previous consultation. And here was the prosecution breaking the agreement. What was more, if Mr. Hay’s motion were granted it would mean taking away from the Grand Jury a task obviously its responsibility and giving it to the Chief Justice.

Here Mr. Randolph, the elder statesman, intervened to reinforce young Botts. Never, he asserted, in his thirty years of practice at the bar had he heard such an astounding proposal.

Mr. Hay explained that his purpose for making the motion was merely to get the prisoner’s bail raised. Borrowing the explanation of Burr’s friends for Wilkinson’s absence, he said that with the bail as low as it was Burr, knowing he would soon have to face Wilkinson, might be tempted to run away. He intimated that he would not put it beyond Burr to make his exit in that craven manner.

Mr. Wickham scoffed at this. Afraid that Burr would run away, indeed! What the prosecution was actually trying to do was to introduce evidence in order to ruin the character of his client before the trial had even begun.

To Wickham’s conjecture Wirt retorted: “Evidence, Sir, is the greatest corrector of prejudice. Why, then, does Aaron Burr shrink from it?”

Mr. Randolph charged that the Government had issued an order “to treat Col. Burr as an outlaw, and to ruin and destroy him and his property.” Then the Colonel himself took up the argument opposing the introduction of affidavits at this point. He called attention to the great disadvantage he, as an individual, suffered in contrast to the Government of the United States which could exercise a compulsory process to obtain them.

The strategy of the defense was making itself clear. Burr was to be portrayed as the victim of a ruthless government which denied him his civil rights and employed the military to seize his property and threaten his life. It was to charge the Jefferson Administration with brutal disregard of the dignity of the humblest citizen, whose equality before the law was Jefferson’s proudest boast.

Next day the Chief Justice presented his opinion, and it was a victory for the prosecution. The Court, he declared, had the right to commit even after the Grand Jury had been chosen. Mr. Hay’s motion was sustained and now he could proceed to present the new evidence he claimed to have on Burr’s alleged treason.

On hearing the opinion, however, Hay stated that he did not wish to present evidence at this time, provided the prisoner’s bail were raised. He proposed that counsel for both sides meet to see if an agreement could be reached. The proposal was accepted and the meeting was held, but it ended in a deadlock. Hay then proceeded to present his evidence while the defense challenged each affidavit and witness. Its objection to the Wilkinson affidavit was sustained. Peter Taylor, Blennerhassett’s gardener, and Jacob Allbright, a laborer on the island, were permitted to testify. But when the affidavit of one Sergeant Dunbaugh was offered the defense again protested.

Judge Marshall here interposed to remark that it was becoming highly embarrassing to him to be issuing opinions on the admission of evidence before the trial had actually begun. To this Burr replied that if the Chief Justice was embarrassed he would consent to a higher bail. The sum of $10,000 was agreed upon, which put an end to this quite unnecessary sideshow. That is, unnecessary so far as the legal proceedings were concerned. But it had provided an opportunity for the counsel on both sides to posture before the audience and to do their best to influence public opinion for or against the accused according to the side they were on.

The digression did result in setting forth a statement of the fundamental issue that was to be iterated and reiterated during the trial: what was treason? In the course of his argument Mr. Botts outlined the definition of treason as it is set forth in the Constitution.

He stated that treason is either levying war against the United States or else giving aid and comfort to the enemy. But since in the present instance the United States was at peace with the world, giving aid and comfort to the enemy was ruled out.

That left the charge of levying war. But, says the Constitution, there must be an “overt act.” Further that act must be proved by two witnesses, and it must have occurred in the district in which the case was being tried. All of these things, insisted Mr. Botts, had to be proved by the Government against Burr if he was to be found guilty of treason.

Mr. Botts contended further that the first obligation of the prosecution was to prove the overt act. Until that act was proved, no other evidence was admissible.

Nothing would be more damaging to the prosecution than a ruling of the Court sustaining the contention of the defense. The prosecution’s plan was to present the evidence chronologically, introducing all the scheming and plotting that had been common gossip during the past few years, and gradually working up to a climax. Colonel Burr and his counsel touched a tender spot when they challenged this procedure.

At this juncture the defense received valuable reinforcement through the arrival of Luther Martin of Maryland. Mr. Martin was a lawyer of exceptional talent. A native of New Jersey, he had been educated at Princeton from which he graduated with high honors in the class of 1766, six classes ahead of Aaron Burr. At the age of thirty he was Attorney General of Maryland, from which high office he resigned to build up a lucrative practice in Baltimore. Elected a delegate from Maryland to the Constitutional Convention, he showed his courage and his scorn for conformity by defying the powerful Virginia delegation, headed by Washington, and championing the cause of the smaller states. His service in the Convention, valuable as it turned out to be, had more recently been overshadowed by his stalwart defense of Judge Chase in the impeachment proceedings.

Another asset for the business in hand was Mr. Martin’s warm friendship for Burr and his inveterate hatred of Thomas Jefferson. In politics Martin was a Federalist; added to his political differences with the President was a personal grudge resulting from an injury quite unconsciously inflicted by Mr. Jefferson.

Luther Martin married Maria Cresap, a daughter of Col. Michael Cresap, a frontiersman of Allegheny County, Maryland. In his “Notes on Virginia” Jefferson included the eloquent speech of the Indian chieftain Logan, who had befriended the early settlers yet whose wife and children had been butchered by the whites. Jefferson’s purpose in introducing this classic piece of rhetoric was to call attention to the nobility of the red man. He was not aware that responsibility for the murder had been pinned on Colonel Cresap, Martin’s father-in-law. Martin voiced his resentment in a bitter letter to a Philadelphia newspaper, but this public outpouring was not sufficient in itself to erase the grudge he held against Jefferson.

Mr. Martin’s brilliance was offset by an untidy dress, coarseness of speech and manner, and an addiction to spirits that earned him the nickname “Old Brandy Bottle.” His capacity was phenomenal, and though he imbibed freely this did not seem to dull his wit or befuddle his mind. He made his entrance into the lists in Richmond as a foreigner, but, had he wished, he might have claimed kinship with his Virginia colleagues as a former student of Chancellor Wythe in Williamsburg and a member of the Virginia bar practicing briefly on the state’s eastern shore.

The business of Hay’s motion absorbed the attention of the Court for the better part of a week, but Wilkinson’s failure to appear continued to hold up proceedings. To a friend in New York Washington Irving wrote impatiently: “... you can little conceive the talents for procrastination that have been exhibited in this affair. Day after day we have been disappointed by the non-arrival of the magnanimous Wilkinson; day after day have fresh murmurs and complaints been uttered; and day after day are we told that the next mail will probably bring this noble self, or at least some account of when he may be expected.”

Finally the Court gave up hope of the immediate arrival of the General. The Chief Justice granted a recess of the Grand Jury for a week so that, as Irving put it, “they might go home, see their wives, and flog their Negroes.”

On Tuesday, June 9, the Jury was recalled and Court reconvened, but it had nothing to do. It was now the turn of the defense to provide diversion to keep the case from dying of inanition. Colonel Burr set things in motion by stating that he thought he might need for his defense a letter of General Wilkinson of October 21, 1806, addressed to President Jefferson, which had been mentioned by the President in his special message to Congress, and the President’s reply to the same. He also would like to have copies of the orders with reference to himself which had been issued to the Army and the Navy.

The Colonel said he had asked for the papers in Washington but without result. Therefore he requested the Chief Justice to issue a subpoena duces tecum to the President of the United States demanding either that he supply the papers or else come into court with them himself.

Burr’s request called for quick thinking on the part of the District Attorney. How was Hay to protect his master from the indignity of a summons yet at the same time prevent his being exposed to a charge of concealing evidence? How was he to offer assurances without pledging the Government to go farther than the President might want it to go?

Mr. Hay settled on a delaying action. He expressed confidence that the Government would comply with the request if the Court should consider the papers pertinent. On the other hand he doubted whether the Court had the power to issue a subpoena duces tecum to the President of the United States. And, suggested Mr. Hay, since the Government was perfectly willing to produce the papers if the Court decided they were pertinent, what need was there for issuing a subpoena at all? Such procedure he thought would be a waste of precious time.

Mention of time wasting brought a shout of derision from the defense. The prosecution, they retorted, had wasted enough of it. And suppose the Government in Washington—by which they meant Mr. Jefferson—turned out to be less obliging than the District Attorney? The Chief Justice here remarked somewhat wryly that the subpoena duces tecum usually was requested in cases where it was anticipated that the papers asked for would not be produced. He inquired directly of the District Attorney whether the prosecution would consent to the issuance of the subpoena. On Hay’s refusal to consent the Chief Justice called for argument.

There followed a prolonged debate, in which the Chief Justice allowed each lawyer to say his say with no apparent time limit. The situation was a delicate one for Mr. Jefferson. If he were to answer the subpoena by complying with a demand to appear in court in person the executive branch of the Government would be making abject surrender to the judiciary. If, on the other hand, he were to claim an exemption, he—the champion of equality of all men—would be claiming a special privilege which even the King of England hesitated to exercise.

The Government’s counsel therefore did not go so far as to deny that the President could be called. But Mr. Hay insisted that the defense had to show that the papers were relevant and material. Further, he contended that the President had a right to reserve any portion of the letters requested whose production in court he considered detrimental to the interests of the United States. Nor was Mr. Hay sure the President was under any obligation to present a letter that had been addressed to him privately. To this, lawyers of the defense replied that in his message to Congress Mr. Jefferson had stated that the letter was addressed to him not as a private individual but as President of the United States. Mr. Hay suggested that a copy of the letter might do. Mr. Wickham of the defense said they would not have it that way. They demanded the original.

The debate gave Luther Martin the opportunity to chastise Mr. Jefferson for which he had impatiently been waiting since his entry into the proceedings. The President, he asserted, had undertaken to prejudge Mr. Martin’s client by declaring that “of his guilt there can be no doubt.” He had assumed the knowledge of the Supreme Being himself, and pretended to search the heart of Mr. Martin’s highly respected friend.

The President, declared Mr. Martin, had proclaimed Colonel Burr a traitor in the face of the country which had rewarded him. He had “let slip the dogs of war, the hell-hounds of prosecution to hunt down my friend.” And would the President of the United States, who had raised all this absurd clamor, pretend to keep back the papers which were wanted for this trial where life itself was at stake?

It was, continued Mr. Martin, a sacred principle that in all such cases the accused had a right to all the evidence needed for his defense. Then, releasing his venom on Mr. Jefferson, he exclaimed: “Whoever withholds willfully information that would save the life of a person charged with a capital offense, is substantially a murderer, and so recorded in the register of Heaven.”

Mr. Wirt of the prosecution jumped to his feet to express his astonishment at the unrestrained language used by Mr. Martin. He even had the temerity to attack the Chief Justice for permitting it in his Court. Suppose, he said, there were foreigners present accustomed to regular government in their own country. What would they infer from hearing the Federal Administration thus reviled before the Federal judiciary and the Administration likened to “blood hounds hunting the man with a keen and savage thirst for blood”?

“Sir,” protested Wirt, looking squarely at Judge Marshall, “no man, foreigner or citizen, who hears this language addressed to the Court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the Court.” He hoped the Court would compel a decent respect for that government of which they themselves formed a branch.

As for tracking the accused with bloodhounds thirsting for blood, Mr. Wirt wished to make it clear that, for their part, the prosecution wished only a fair trial of the case. “If the man be innocent, in the name of God let him go; but while we are on the question of his guilt or innocence, let us not suffer our attention and judgment to be diverted and distracted by the introduction of other subjects foreign to the inquiry.”

For three days opposing counsel held forth until the Chief Justice, with a sigh of exhaustion, announced that he had heard enough arguments on which to base a sound opinion. He then proceeded to deliver it. If, said Judge Marshall, upon any principle the President could be construed to stand exempt from the general provisions of the Constitution, it would be because his duties as chief magistrate demanded his whole time for national objects. But, he observed, it was apparent that this demand “was not unremitting.”

The last remark was a sly dig at Mr. Jefferson for spending several months every summer away from Washington at Monticello, his country estate in Albemarle County, Virginia.

Now, continued Judge Marshall, if the public’s demand on the President’s time should exist when his attendance at court was required, it could be sworn to on the return of the subpoena. It might serve as an excuse for not obeying the Court. But it did not serve as a reason for not issuing the subpoena.

The Chief Justice now assumed an apologetic attitude. It could not be denied, he said, that to issue a subpoena to a person filling the exacting position of chief magistrate was a duty which would be dispensed with much more cheerfully than it would be performed. But if it was a duty the Court could have no choice in the case. He recognized that the right to call the President into court could be abused. But, he assured, “the guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of the Court after those subpoenas have been issued.”

In short, what Judge Marshall said was that the decision as to whether it was appropriate for Mr. Jefferson to appear in Court rested with the Chief Justice, not with the President.

The Chief Justice went on to defend his position. “It is not,” he said, “for the Court to anticipate the event of the present prosecution. Should it terminate as is expected on the part of the United States, all those who are concerned in it should certainly regret that a paper, which the accused believed to be essential to his defense; which may, for aught that now appears, be essential, had been withheld from him ... it would justly tarnish the reputation of the Court which had given its sanction to its being withheld.”

He therefore ordered that the subpoena duces tecum be issued to the President of the United States, or such of the secretaries of the departments as might have the paper mentioned.

The Chief Justice had hardly finished delivering his opinion when Mr. MacRae was up, clamoring for recognition. Unless his ears had deceived him, he said, he had heard the Chief Justice remark that should the case terminate “as is expected on the part of the United States.” Against any such remark Mr. MacRae protested with all his might.

“The impression,” he said, “which has been conveyed by the Court that we not only wished to have Aaron Burr accused, but that we wished to convict him, is completely abhorrent to our feelings.” The prosecution, he insisted, was interested only that Burr be tried.

Judge Marshall did not immediately repudiate the comment. On the contrary, he defended it on the ground that he had inferred as much from remarks made by them assuming the guilt of the prisoner. But later, after reflection, he thought better of it. At the close of Court he called the reporters to him and observed that he had no desire that the words complained of by Mr. MacRae should remain in the written opinion and so he had expunged them.

However impelling the demand on the President may have been to give his time to other official matters, it did not keep him from paying close attention to what was going on in Richmond. Messengers were constantly passing back and forth between him and the District Attorney bearing suggestions from the President for trying the case and reports of the proceedings from Hay. No sooner, therefore, had the request for the papers been made by Colonel Burr than the President was so apprised.

Mr. Jefferson replied promptly that, reserving his right to decide independent of all other authority, what papers coming to him as President the public interest permitted to be communicated, he assured his readiness voluntarily to furnish on all occasions whatever the purposes of justice might require.

Mr. Jefferson said he was under the impression that General Wilkinson’s letter of October 21 and all other papers relating to the charges against Burr had been turned over to the Attorney General when he first went to Richmond in March. He took for granted they had been left with Hay. Since he could not remember exactly what was in the papers he would leave it to Mr. Hay to exercise his discretion as to what part to communicate and what part to withhold.

As to the requests for the orders to the Army and the Navy, the President observed that supplying them would amount to laying open the whole executive books. But he would get the Secretary of War to look at the records. He added that if the defendant supposed there were any facts within the knowledge of the heads of departments, or of himself, which could be useful to the defense he would be glad to provide depositions.

“As to our personal attendance at Richmond,” the President informed Hay, “I am persuaded it is sensible that paramount duties to the nation at large control the obligation of compliance with their summons in this case, as they would, should we receive a similar one to attend the trials of Blennerhassett and others in Mississippi territory, those instituted at St. Louis and other places on the western waters ... to comply with such calls would leave the nation without an executive branch.”

Feeling as he did the President was greatly annoyed when Judge Marshall’s opinion was reported to him, still obstinately maintaining that he should appear in court. After reflection he sat down and framed a letter to Hay presenting his arguments against obeying the subpoena. The Chief Justice, he complained, as was usual with him when an opinion was to be supported, right or wrong, dwelt much on smaller objections and passed over those which were solid. He had laid down the general position that all persons owe obedience to subpoenas. But, argued Mr. Jefferson, if the Constitution enjoined a particular officer to be always engaged in a particular set of duties, did not that supersede the general law, subjecting him to minor duties inconsistent with these? “The Constitution enjoins his constant agency in the concerns of six millions of people. Is the law paramount to this which calls on him in behalf of a single one?”

Mr. Jefferson applied the Judge’s doctrine to his own case. Suppose, he said, the sheriff of Henrico County (in which the Judge was domiciled) should summon him from court to quell a riot. Would the Judge abandon major duties to perform lesser ones? Then he got down to the root of the matter, which was the battle being waged between the executive and the judiciary.

“The leading principle of our Constitution,” he reminded, “is the independence of the legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?”

The President now came to the most personal part of the opinion in which the Chief Justice intimated that his duties were not unremitting. “If,” said Mr. Jefferson, “he alludes to our annual retirement from the seat of government, during the sickly season, he should be told that such arrangements are made for carrying on public business that it goes on as unremittingly there as if he were at the seat of government. I pass more hours in public business at Monticello than I do here every day and it is much more laborious, because all must be done in writing.”

Thus Mr. Jefferson excused himself from casting aside his official duties in Washington and departing posthaste to Richmond at the request of Aaron Burr and on the order of Judge Marshall. He still had to deal with his other tormentor, Luther Martin. The President was not very successful in concealing the fact that the vindictive attack of the Baltimore lawyer had gotten under his skin.

While Mr. Martin was shouting invectives against the President in Richmond there came into Mr. Jefferson’s hand a letter from a Mr. Graybill of Baltimore. Inquiry revealed that the writer was an old Revolutionary soldier who had set up as a flour merchant. According to the information reaching the President, Mr. Graybill was a man of respectable character whose word could be trusted implicitly. In his letter Mr. Graybill said that for more than a year it had been believed in Baltimore that Burr was engaged in some criminal enterprise and that Luther Martin knew all about it.

In his haste to even the score with Martin the President was carried away by the Graybill letter. He proposed to Hay that a subpoena be issued to Graybill to appear as a witness against Burr and, while Graybill was on the way, Hay might be considering how best to use his testimony. Then the President put forward a fantastic idea. How about summoning Luther Martin as a witness against Burr, meanwhile holding Graybill ready to confront Martin? How about the prosecution moving to commit Luther Martin as particeps criminis along with Burr? Graybill, Mr. Jefferson was assured, would fix upon him misprision of treason at least. Mr. Jefferson did return to realities sufficiently to admit that there might be some doubt whether the prosecution could legally examine a witness to discredit its own witness. He recognized, too, that lawyers considered themselves privileged from being forced to breaches of confidence.

“At any rate,” concluded Mr. Jefferson, “his [Graybill’s] evidence will put down this unprincipled and impudent Federal bulldog, and add another proof that the most glamorous defenders of Burr are all his accomplices. It will explain why L.M. flew so hastily to the aid of his ‘honorable friend,’ abandoning his clients and their property during a session of a principal court in Maryland, now filled, so I am told, with the clamors and ruin of his clients.”

The District Attorney, wisely perhaps, ignored these chimerical suggestions from the White House.

Still another incident illustrated the zeal of the President of the United States to win a conviction against Colonel Burr. It will be recalled that Dr. Eric Bollman, the German adventurer, was one of the messengers dispatched to Wilkinson with the fateful letter which Wilkinson later disclosed; that when the conspiracy collapsed Wilkinson arrested him and Swartwout and shipped them east to Washington under arrest on charges of treason. Bollman shortly thereafter went to the President and denied some of the exaggerated charges against Burr that were being published in the newspapers. Bollman’s purpose was to show that the plan did not involve a division of the Union, but only an expedition against Spain. He was received by the President in the presence of Secretary of State James Madison, who listened sympathetically to what he had to say. The President suggested that Bollman put his oral statements in writing, which Bollman did. The German admitted later that, because of his difficulties with the English language, some of his statements may have been misleading. It was his understanding that Mr. Jefferson promised not to use them against him or to let them out of his keeping. Mr. Jefferson appears to have understood differently.

As early as May 20 the President wrote Hay that he was sending him some blank pardons that were to be filled out at Hay’s discretion “if you should find a defect of evidence and believe that this could supply it.” However, he cautioned Hay that they were not to be given to gross offenders “unless it be visible that the principal will otherwise escape.”

Bollman evidently was regarded by the President as a man whose testimony would be sufficiently important to justify his being given a pardon should he consent to turn State’s evidence. A week after sending the blank pardons to Hay he wrote him that: “If a bill [against Burr] be found and a trial had, his [Bollman’s] evidence is deemed entirely essential, and in that case his pardon is to be produced before he goes to book.” In short, Bollman was to be offered a pardon if he would testify against Burr. But Bollman was not so keen to betray his friend. Hay filled out the pardon; Bollman spurned it. Hay then wrote the President for instructions.

“You ask,” replied the President, “what is to be done if Bollman finally rejects his pardon, and the Judge decides it to have no effect. Move to commit him immediately for treason or misdemeanor.” There were times when the mild-mannered “Sage of Monticello” could be tough.

At this point the side play was interrupted by the arrival of the Government’s star witness, Major General James Wilkinson, Commander-in-Chief of the United States Army. In the excitement caused by his martial entry the subpoena duces tecum was brushed aside and almost forgotten.

On the original subpoena, now in the Federal Courthouse in Richmond, is an indorsement in Burr’s handwriting indicating that he did not expect to bring the President into court. On the other hand, the language used by the Chief Justice in his opinion certainly indicated that he expected the President to appear in person. Certainly the President, in setting forth in his letter to Hay his reasons for not coming, indicated that he thought he had been summoned to appear. However, when the writ itself was drawn up it stated that neither the personal attendance of the President nor the other officers of government mentioned was required. When the critical moment came Marshall recoiled from a direct challenge.

Nevertheless a void of several days had been packed with dramatics. The lawyers had been given a chance to exercise their eloquence and the audience had been well entertained. More to the point, Mr. Jefferson had been unmercifully badgered. That probably was as much as Colonel Burr and his counsel expected anyway.