District Attorney Hay had asked that Burr be confined or that his bail be raised for fear he would run away rather than face his former friend and present accuser, General James Wilkinson. On the other hand, there were quite as many people who harbored the belief that General Wilkinson would not dare to come face to face with Burr.

Among the latter was John Randolph of Roanoke who, at the time, was keeping up a lively correspondence with Joseph H. Nicholson, a former colleague in the House of Representatives and now a Federal judge in Baltimore. As late as May 31, while still waiting impatiently for the appearance of the dilatory star witness, Randolph wrote to his friend: “There are, I am told, upwards of forty witnesses in town, one of whom (General Jackson of Tennessee) does not scruple to say that W [Wilkinson] is a pensioner of Spain to his knowledge and that he will not dare to show his face here.”

But just as Colonel Burr upset Hay’s prediction by announcing his presence whenever his name was called, so General Wilkinson disappointed his critics by at last showing up. Having traveled from New Orleans by sea he landed at Hampton, Virginia. On June 10 his arrival in Richmond by stage was announced. He was reported to be exhausted from his journey, but his appearance did not bear out that impression. As befitted the senior officer of the United States Army, he exhibited himself to the public resplendent in his major general’s uniform. To add to the impressiveness of his entry on the scene he was constantly attended in public by his military aides, including his son, Lieutenant James Wilkinson, Lieutenant Edmund Pendleton Gaines, who had received Burr as a prisoner in Alabama, and Lieutenants Murray and Smith. Gaines in later years was to achieve distinction in the War of 1812 and eventually attain command of a department of the United States Army. Still another member of the Wilkinson party was Mr. John Graham, President Jefferson’s special agent who had trailed Burr after the issuance of the presidential proclamation. This group, augmented by their servants, produced quite a spectacular array.

On Monday, June 15, the long-awaited personal encounter between Burr and Wilkinson took place. It was a dramatic moment worth recording for posterity, and several first-hand accounts were duly put on paper immediately after the event and thus preserved. General Wilkinson himself was the author of one of them. His was written especially for the eye of the President and it was executed in the General’s customarily vivid manner. Colonel Burr was already in the courtroom when Wilkinson entered. Said the General in his letter to Jefferson: “I was introduced to a position within the bar very near my adversary. I saluted the bench and in spite of myself my eyes darted a flash of indignation at the little traitor, on whom they continued fixed until I was called to the Book—here, Sir, I found my expectations verified—this lion-hearted, eagle-eyed Hero, jerking under the weight of conscious guilt, with haggard eyes in an effort to meet the indignant salutation of outraged honor; but it was in vain, his audacity failed him. He averted his face, grew pale, and affected passion to conceal his perturbation.”

Altogether different was the impression made by the incident on Washington Irving who was among the spectators in the courtroom that morning. Allowance must, no doubt, be made for the fact that Irving counted himself as being in the Burr camp and was altogether sympathetic with the Colonel in his misfortune. According to Irving, Burr, his back to the entrance, was facing the judge and conversing with his counsel when the General arrived. “Wilkinson,” said Irving, “strutted into Court, and took his stand on a parallel line with Burr on his right hand. Here he stood for a moment swelling like a turkey-cock, and bracing himself up for the encounter of Burr’s eye.

“The latter did not take any notice of him until the judge directed the clerk to swear General Wilkinson. At the mention of his name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly resumed his former position and went on conversing with his counsel as tranquilly as ever. The whole look was over in an instant, but it was an admirable one. There was no appearance of study or constraint in it; no affectation of disdain or defiance; a slight expression of contempt played over his countenance, such as you would show on regarding any person to whom you are indifferent, but whom you considered mean and contemptible.”

In the next issue of the Enquirer, Editor Ritchie, under his nom de plume of the “Resident of Richmond Hill,” presented a third version of the encounter. He, of course, championed the Government’s star witness, as the mouthpiece of the Jefferson Administration would have been expected to do.

“He [Wilkinson],” wrote Ritchie, “has met Colonel Burr in the presence of the court and a gaping crowd, but who can say that his countenance was flushed and apprehensive or sicklied o’er with the pale cast of fear and guilt? That was a deep mortification to some; had he but fainted or betrayed the least timidity, it would have been a luscious conquest of federalism.”

Still another witness of the scene who, in spite of the heat of that partisan battle, somehow managed to maintain a neutral attitude, reported that the meeting had been anticipated for so long by the two principals and had been so often rehearsed in their imaginations that the actual performance of neither party was convincing. Such is the evidence which posterity is invited to hear and weigh, and from it arrive at a decision as to which of the two principals came off the better.

The “Resident from Richmond Hill,” having dealt with the meeting of Burr and Wilkinson, could not resist the opportunity of reporting his impressions of Luther Martin, lawyer for the defense. Said he: “As I have mentioned the bar, permit me to introduce a strange lawyer from a neighboring State whose character towers to the highest sphere of jurisprudence. My expectations were at first as extravagant as his character. I marked him in my mind’s eye as a happy standard by which I might form some estimate of the Virginia bar. But pardon me ye critics and eulogists of Mr. M. ... if I cannot join in the forensic paean, if instead of placing him in the zenith I put him in the nadir.”

General Wilkinson’s presence in court was brief. The Grand Jury, which had been waiting so long, was impatient to hear him. Grand jury proceedings are customarily regarded as sacred and what goes on behind closed doors is supposedly held in the strictest confidence. But the Grand Jury in the Burr case, like so many other features of that strange performance, refused to conform to the normal pattern. At least one serious leak led to a controversy in the press. In his continued correspondence with Judge Nicholson the jury’s foreman set down some salty observations. Nor was the star witness silent. His experience gave him another chance to unburden himself to his patron in Washington.

Wilkinson brought with him into the jury room the original of the famous letter in cipher which he had received from Burr by the hand of Samuel Swartwout. It was a complicated cipher which baffled the jury, with one exception. That exception was John Randolph of Roanoke who gave a demonstration of his remarkable intellect by mastering the key at once and explaining the solution to his less astute fellow jurymen.

The General’s reception was less than cordial. To a man who claimed to have saved his country through his bold and patriotic actions the militant attitude of the Grand Jury was painful indeed. The General made his lament to Jefferson: “I dreamt not of the importance attached to my presence before I reached Hampton ... for I had anticipated that a deluge of testimony would have been poured forth from all quarters to overwhelm him [Burr] with guilt and dishonor.” That, perhaps, to excuse his having kept the Grand Jury waiting. “Sadly, indeed, was I mistaken, and to my astonishment I found the traitor vindicated and myself condemned by a mass of wealth, character, influence and talents. Merciful God, what a spectacle did I behold—integrity and truth perverted and trampled under foot by turpitude and guilt, patriotism appalled and usurpation triumphant. Did I ever expect it would depend on my humble self to stop the current of such a polluted stream? Never, never.”

Why the Grand Jury did not overwhelm Wilkinson with manifestations of appreciation and gratitude is revealed by John Randolph in a letter to Nicholson reporting on the indictments: “But,” said Randolph, “the mammoth of iniquity escaped. Not that any man pretended to think him innocent, but upon certain drawn distinctions that I will not pester you with.

“Wilkinson is the only man that I ever saw who was from the bark to the very core a villain. I cannot enter upon it here. Suffice it to say that I have seen it—so that it is not susceptible of misconstruction.... Perhaps you never saw human nature in so degraded a situation as in the person of W. before the G.J., & yet this man stands on the very summit and pinnacle of executive favor—whilst Jas. M—e [James Monroe] denounced....” Just then Monroe stood in Randolph’s good graces. But like so many others he soon was to incur that inconstant gentleman’s displeasure.

A few days later Randolph wrote again: “W— is the most finished scoundrel that ever lived. A ream of paper would not contain all the proofs—but what of that? He is ‘the man whom the king delighteth to honor’ & all who are in search of promotion find it to their interest to shut their eyes and ears to the evidence of the guilt—among them I could name some, whom I blush to think upon.”

Randolph then described in detail the scratches with a pen-knife and restorations in the Burr letter which he claimed were made in Wilkinson’s own handwriting. He concludes: “Let me know what the opinion is with you of this redoubtable thief taker (set a thief etc.) who commands our armies.”

In another of his emotional letters to the President, Wilkinson confessed his perplexity at the direction the case had taken: “You are doubtless well aware,” he wrote, “of the proceedings here in the case of Burr. To me they are incomprehensible as I am no jurist. The Grand Jury actually made an attempt to present me for suspicion [Wilkinson meant “misprision”] of treason on the ground of having failed to report Dayton to you. I feel myself between Scylla and Charybdis. The jury would dishonor me for failing in my duty, and Burr and his conspirators for performing it.”

The jury’s treatment of Wilkinson provided the subject for a bitter dispute that ran for days in the pages of the Enquirer. Under the heading “Drowning Men Catch At Straws,” Editor Ritchie set forth that he was authorized to contradict the slander uttered in Davis’s Virginia Gazette and Daily Advertiser (The Enquirer’s Federalist rival) that a motion had been made before the Grand Jury to present the General for high treason and that on the question the jury had divided equally.

The Enquirer traced the story to “Mumford Beverly Esq., an unworthy member of the jury, of whose attachment to monarchy and sympathy for Burr no doubts are admitted.” A few days later Mr. John Brockenbrough, cashier of the Bank of Virginia and a juryman, entered the controversy. Mr. Brockenbrough said he felt no disposition to interfere in the controversy between General Wilkinson and his friends and Mr. Beverly, but he deemed it his duty to state the facts. He said he had not voted for presenting General Wilkinson for high treason, for no such vote was taken, to his knowledge.

A whole month was allowed to elapse before juryman William Daniel Jr. at last straightened out the matter. The motion was not to present Wilkinson for “high treason,” but for “misprision of treason.” And, said Mr. Daniel, the jury had been seven for and nine against.

In view of the battering he had received from the Grand Jury in his gallant effort to serve the Administration, the poor, maltreated General was gravely in need of sympathy and moral support. And he got it. To his lamentation the President replied: “Your enemies have filled the public car with slanders and your mind with trouble on that account. The establishment of their guilt will let the world see what they ought to think of their clamors; it will dissipate the doubts of those who doubted for want of knowledge and will place you on higher ground in the public estimation and public confidence.” Then wholeheartedly and without reservation Jefferson declared: “No one is more sensible than myself of the injustice which has been aimed at you. Accept, I pray you, my salutations and assurances of respect and esteem.”

Surely no President of the United States ever expressed gratitude in such extravagant terms to a subordinate who deserved it less. Necessity makes strange bedfellows.

While the Grand Jury was behind closed doors examining witnesses, stagnation settled on the courtroom. Again there was need for diversion to while away the time. The ever-resourceful Burr, seldom wanting for an idea, supplied it. He moved that an attachment be issued against General Wilkinson for contempt in obstructing the administration of justice by rifling the mails, imprisoning witnesses, and extorting testimony by torture. The allusions were to his behavior in New Orleans.

The motion at least afforded opportunity for several witnesses to pour out lurid stories of their experiences at the hands of the tyrant. It caused Wilkinson personal embarrassment—if that were possible—by bringing him back into court, and gave counsel on both sides a chance to disport themselves in prolonged argument.

On June 24, while these arguments were being heard, the Grand Jury, led by its foreman, John Randolph, filed majestically into the courtroom and took seats in the jury box. Argument on Burr’s motion was immediately suspended. A profound silence fell over the assemblage and every ear was strained as Mr. Randolph, addressing the bench, announced that the jury had agreed upon several indictments. He then handed the official document to the clerk who read aloud the endorsements:

“An indictment against Aaron Burr for treason.”

“An indictment against Aaron Burr for misdemeanor.”

“An indictment against Harman Blennerhassett for treason.”

“An indictment against Harman Blennerhassett for misdemeanor.”

Burr, according to those present, on hearing the indictment read, displayed no emotion. He accepted the action of the Grand Jury as calmly as he had accepted all his misfortunes. There seems to have been no justification for the statement in one of the local papers next day that the prisoner was thrown into a state of consternation and dismay. Such behavior would have been so out of keeping with the man’s character that the report can be safely attributed to Republican propaganda.

After the Grand Jury had withdrawn, Judge Marshall announced that he was now under the necessity of committing Burr. So, late in the afternoon, the former Vice-President of the United States had to undergo the humiliation of being conducted by the marshal through a concourse of hundreds of curious people to the city jail, notorious for its filth and vermin. There for the night he shared a room with a man and woman and was in close proximity to the other prisoners.

Next day the Grand Jury indicted for treason and misdemeanor ex-Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler, Israel Smith, and Davis Floyd.

Dayton went out of office on the same day Burr ceased to be Vice-President. After that they were known to be closely associated. Some people believed that the treasonable projects on which they were supposed to be engaged were as much the handiwork of Dayton as of Burr. It was Dayton’s nephew, Peter Ogden, who carried a letter to Wilkinson along with Samuel Swartwout who carried the letter from Burr.

Senator Smith had been suspected of being engaged in the plot from the time Burr stopped with him at Cincinnati in the summer of 1805. When invited by the Kentucky Grand Jury to testify to the charges brought by Daveiss he had discreetly disappeared.

Comfort Tyler, Israel Smith, and Davis Floyd were minor leaders of the expedition. Tyler, who came from Onandaga, New York, had served with Burr in the New York Assembly and there fell under his spell. Israel Smith also was a New Yorker and Davis Floyd was from Indiana Territory. They were no doubt indicted because they were present on Blennerhassett Island and took part in any overt act which might have taken place there and on the proof of which the charge of treason depended.

Burr’s first thought was for his daughter Theodosia. She must be spared anxiety and mortification. From his cell in jail he penned her a hurried letter in which he gave no inkling of his disgusting surroundings. The indictment for treason, he explained, was founded on the allegation that Col. Comfort Tyler, with 20 or 30 men, had stopped at Blennerhassett Island on the way down the Ohio and “... that though these men were not armed, and had no military array or organization, and though they did neither use force nor threaten it, yet having set out with a view of taking temporary possession of New Orleans on their way to Mexico, that such intent was treasonable, and therefore a war was levied on Blennerhassett Island by construction.”

The Colonel went on to say that though he was at that time in Frankfort, Kentucky, on his way to Tennessee, nevertheless, having advised the measure, he was by construction of law present at the island and levied war there. “In fact the indictment charges that Aaron Burr was on that day present at the island, though not a man of the jury supposed this to be true.”

Of the 50 witnesses who were examined by the Grand Jury, said Burr, “it may be safely alleged that 30 at least have been perjured.” He closed his letter with a characteristically stoical injunction: “I beg and expect it of you that you will conduct yourself as becomes my daughter, and that you manifest no signs of weakness or alarm.” Was he thinking of that long line of Puritan ancestors stretching back through New England to the old England? He need have no concern on the score of Theodosia’s behavior. A word from her father was the equivalent of a command. She had never failed him yet.

After Burr had spent two uncomfortable nights in the city jail his counsel complained bitterly to the Chief Justice. They warned that the unsanitary conditions in the jail would break down his health. The lack of privacy, they claimed, would interfere seriously with the consultations with his lawyers and impair his defense. Moved by these appeals, Judge Marshall consented that the prisoner should occupy a room in a house which had been rented by Luther Martin across the street from the Swan Tavern. Consent was given on condition that suitable shutters and door fastenings be installed to insure the security of the prisoner and that a guard of seven men be kept constantly on duty.

These terms were accepted. The installations were inspected and declared secure by none other than Benjamin H. Latrobe, the country’s leading architect and at the moment President Jefferson’s Surveyor of Public Buildings, who was then busily employed in redesigning the national Capitol. Latrobe had been approached by Burr with a proposal to take part in building a canal around the falls of the Ohio at Cincinnati and was among the many persons hauled in by the Government to give testimony.

Burr and the architect were to have another relationship of which neither of them had dreamed. Latrobe had but recently completed a design for a penitentiary at Richmond, for the State of Virginia, drawn up according to the specifications of Jefferson. The building had been erected and it met all the very latest requirements set forth by the penologists. In addition to its functional excellence it was a noble structure characteristic of Latrobe’s imagination and genius. It occupied a commanding position overlooking the James River on a lofty hill next door to the one on which stood the Gray House of Robert Gamble. That, too, it will be recalled, was the work of Latrobe. It now housed Colonel Gamble and his wife, his two daughters, and his sons-in-law, Governor William Cabell and William Wirt.

Since the imprisonment of Burr in Mr. Martin’s house had brought forth charges of favoritism, Governor Cabell hit on a plan to save Judge Marshall embarrassment by graciously offering the court quarters for Burr in the penitentiary. The offer was accepted by his counsel on the understanding that, as soon as the trial commenced, the prisoner should be returned to the Martin house in town.

So it was that Colonel Burr was transferred to the penitentiary. If in fact, as some alleged, he had plotted to make himself an emperor, the structure in which he was now imprisoned provided a romantic setting. The massive walls and the sturdy tower needed only a banner floating over them to give every appearance of a castle or other imperial stronghold. It was the nearest thing to regal quarters he would ever occupy.

This important housekeeping matter attended to, the prisoner was arraigned and pleaded “not guilty” to the charges. The Court ordered the United States Marshal to summon a panel of 48 men to report on August 3. From these a jury was to be picked for the trial.

The time had come for another intermission. With the intermission came the need for further divertissement. Being secured in prison, Colonel Burr was in an awkward position to supply it. This time the local populace and the visitors to the town who had come to take part in the trial were to be relieved of their boredom by the navy of His Britannic Majesty, King George III.