Promptly at noon on Monday, August 3, the Circuit Court of the United States for the Fifth Circuit and District of Virginia was opened by the Chief Justice. The midsummer heat had done nothing to discourage the public from attendance, and, as usual, every seat and vantage place was at a premium.

On the bench the Chief Justice in his robes of office sat alone. Judge Griffin is not reported to have been present on this occasion. In the places reserved for the prosecution were District Attorney Hay, Mr. Wirt and Mr. MacRae. Ready to act for the defense were Mr. Randolph, Mr. Wickham, Mr. Martin and Jack Baker. Baker, a jovial fellow, appears to have been retained because of his popularity: he played a small part in the trial.

The clerk called the names of more than 100 witnesses. Then followed another of those legal hitches that by this time had become so characteristic of the trial. Mr. Hay asked for a postponement since, he said, he had been unable to furnish Colonel Burr with a list of the witnesses and their addresses. He reported also that he had found that the list of the venire he had delivered to the accused was inaccurate. So the Chief Justice obligingly granted a postponement of two days, but not before Colonel Burr had attempted to enliven the proceedings by again asking for a subpoena duces tecum. So there was nothing for the disappointed crowd to do but file out of the courtroom to swelter through the afternoon in the taverns and in their homes until the sun had set and darkness had brought some slight relief. Those who were determined to follow the proceedings by this time were beginning to realize that they would have to adapt their habits to the spasmodic stops and starts of the hesitant machinery of justice.

On Wednesday court assembled only to adjourn almost immediately because witnesses were absent. On Friday another assembly was followed by adjournment because counsel for the United States pleaded they were not prepared to proceed. Thus another whole week passed by with nothing tangible accomplished toward either dismissing Colonel Burr with a clean bill of health or consigning him to the gallows.

At last, on Monday, August 10, the proceedings got under way. A touch of novelty was provided by the first appearance in court of Harman Blennerhassett. He had made the trip from the penitentiary to the Capitol in fine style, riding in a carriage drawn by a span of horses and attended by two guards. The crowd outside the courthouse was smaller than he had anticipated, but he found the spacious courtroom well filled. Colonel Burr entered soon afterwards and, on catching sight of Blennerhassett, immediately came to his side, shook him warmly by the hand and, with a welcoming smile, told him how glad he was to see him. It was the first time the alleged conspirators had met since Burr said goodby to his little army at Cole’s Creek in February and slipped out into the wilderness. That magic smile and handshake were enough to banish for the moment the resentment Blennerhassett felt over his treatment.

Now commenced the arduous task of picking twelve good men and true from among the prospective jurymen who had answered to their names. In view of the fact that virtually every bit of the most important evidence against the accused, including all the fantastic rumors, had appeared in the press and was common knowledge to the reading public, it was no simple task to find men of intelligence who had not already formed their opinions. No sooner had Mr. Buckey, the first venireman called up, been questioned than the difficulty became apparent. Asked if he had formed an opinion prior to receiving his subpoena Mr. Buckey replied that he had. Mr. Hay ventured that if the question were put to this man and every other man on the panel no jury could ever be selected in the State of Virginia. If the Court were to adopt that doctrine, he said, why then it would be the equivalent of acquitting the prisoner for want of a jury to try him.

Young Botts bristled at this remark of the District Attorney. He asked for the floor to deplore that in this country and in this case there had been such a general expression of public sentiment. However, until the gentlemen for the prosecution had avowed it Mr. Botts professed he had never doubted that twelve men might be found in Virginia capable of deciding the question with the strictest impartiality.

Judge Marshall here intervened between counsel to point out that asking a man whether he had formed an impression about Colonel Burr was too general. The impression might be so slight that it did not amount to an opinion of guilt, nor go to the extent of believing he deserved capital punishment.

Mr. Botts addressed the venireman. “Have you said that Colonel Burr was guilty of treason?” he asked. “No,” was the reply. “I only declared that the man who had acted as Colonel Burr was said to have done, deserved to be hung.” “Did you,” pursued Mr. Botts, “believe that Colonel Burr was that man?” “I did from what I had heard,” admitted Mr. Buckey. The gentleman was rejected.

So it went with venireman after venireman. A typical instance was that of Mr. Jervis Storrs. He was, he said, in the habit of reading the newspapers and could not but examine their statements relative to these transactions. If he could believe General Eaton’s assertion that the prisoner had threatened to turn Congress out of doors and assassinate the President, he had said and would still say that Colonel Burr was guilty of treason. If the letter to General Wilkinson was true, Colonel Burr had surely been guilty of something in the West that was hostile to the interests of the United States. On the whole Mr. Storrs expressed a wish not to serve on the jury.

Among the veniremen questioned was Peyton Randolph. He asked to be excused on the ground that he was a lawyer, practicing at the Richmond bar, and as such immune to jury duty. It did not seem to occur to him that he had ample reason for not serving in view of the fact that he was a son of Edmund Randolph, leading counsel for the defense. These Virginia relationships were so hopelessly intertwined that Mr. Hay, on questioning the possibility of getting twelve men in the state who had not made up their minds, might have added a doubt that it would be possible to organize a court, comprising judge, jury, and counsel, where family relationships would not endanger strict impartiality.

This circumstance was abundantly illustrated when out of the list of veniremen Colonel Edward Carrington was called to the stand. He was the Chief Justice’s brother-in-law and a devoted friend. But this connection had not stood in the way of his being subpoenaed for jury duty.

On being questioned as to his fitness to serve Colonel Carrington expressed his feelings with complete candor. He had, he admitted, formed an unfavorable opinion of the views of Colonel Burr, but it was not definitive. Some people said that Colonel Burr’s object was to invade the Spanish territories; others that it was to dismember the Union. As for himself, said Colonel Carrington, his own opinion had not become fixed.

But there was another subject connected with the trial, on which he had stated an opinion. That was on General Wilkinson’s actions in New Orleans. On the basis of what Wilkinson had been told of Burr’s activities Colonel Carrington thought the General had behaved in a proper manner and had said so publicly.

Burr himself addressed the venireman. “Have you, Colonel, any prejudice of a more settled kind and ancient date against me?”

“None at all,” Colonel Carrington assured him.

“He is elected,” declared Burr.

So it was that, with the Chief Justice, the prisoner, and counsel for both sides agreeing, the brother-in-law of the Chief Justice became one of the first four out of that first venire of nearly forty to be elected and sworn.

Thus were concluded the proceedings on August 10. Seven days had passed since the convening of the court and the jury still needed eight members to complete it.

Blennerhassett, who had been a silent witness to these events, returned to his quarters in the penitentiary. The day in court and the intense heat oppressed him. He dined with less appetite than the day before, and tried to get cool by pacing his commodious cell and fanning himself. But it did no good. He soon found himself so weak he had to lie on the floor, and there he slept he knew not how long. At length he awakened on hearing mention of the name of Mrs. Alston. A servant had come from Theodosia bearing a gift of oranges, lemons, and limes. This was not the first time she had showed the same attention. In fact Blennerhassett had not been in prison half an hour before her first gift arrived—tea, sugar, and cakes. Alston had come, too, to offer reassurances on the score of the money Blennerhassett had sunk in the adventure. He had not been too successful in this, since Blennerhassett had formed a dislike for him. In fact it seemed as though Blennerhassett, disarmed by Burr’s ingratiating manner, vented his spleen on the unoffending Alston. Alston had brought with him Edmund Randolph who volunteered his professional services in Blennerhassett’s defense.

There were other compensations for being behind bars. The prisoner was permitted to hire a servant at $13 a month to wait on him. He was given every liberty inside the prison, except that he could not pass from under its roof by day or out of his room by night. He did, therefore, have to suffer the indignity of being locked in from 8 o’clock in the evening until sunrise.

On the other hand, no objection was made to his stocking up with groceries and liquors. His dinner was provided by a tavern across the road from the penitentiary. He also enjoyed the services of a fellow prisoner who was a skillful barber.

“This Vaun,” he recorded in his diary, “is only here for 18 years, merely for cutting his wife’s throat with precisely the same sort of instrument with which he operates most delicately on mine every other day.”

There came also a message from a lady unknown to him who did not wish to have her name mentioned, begging him to accept soups and jellies. Later Blennerhassett learned her identity. No wonder the lady felt a delicacy about having her name mentioned as a benefactor of Burr’s alleged accomplice. She was Eliza Carrington, adoring sister-in-law of the Chief Justice and wife of the juryman who was to have an important part in trying Colonel Burr. Washington Irving was no doubt right when he praised Richmond’s women for their compassion, their boldness, and their independence. Could he have said as much for their discretion?

Tuesday, August 11, was another sweltering day. The Court concerned itself with completing the jury. The proceedings were uneventful save for one brief moment when a venireman named Hamilton Morrison was challenged by the defense.

“I am surprised why they should be in so much terror of me,” he observed. “Perhaps my name may be the terror, for my first name is Hamilton.”

Colonel Burr was not amused. He stated that the remark was in itself sufficient cause for disqualifying the venireman and the facetious Mr. Morrison was excused.

By now the venire had been exhausted and yet eight seats on the jury still remained empty. Mr. Hay therefore moved that the Court award a new venire, and the Chief Justice granted a panel of forty-eight and ordered an adjournment until Thursday, the 13th, in order to allow time for bringing it together. But when Thursday came Burr objected that the list of the panel he had received contained no addresses. In consequence the adjournment was continued until Saturday. Even then the prospect was discouraging; it was beginning to look as though Mr. Hay was right when he expressed a fear that Colonel Burr would not be tried for want of a jury.

However, it was Colonel Burr who offered a solution to the problem. He proposed that he be permitted to select eight men out of the new panel. The prosecution, despairing of getting a jury any other way, agreed. And so at last the jury box was filled, twelve days after court had been convened for the trial.

Unlike the Grand Jury, the Petit Jury could not boast a particularly distinguished list of members. Colonel Carrington stood out prominently among them; so much so in fact, that the Chief Justice waved aside whatever scruples he may have had and placed his brother-in-law in the key position in the trial by appointing him foreman.

Though the other eleven jurymen were not destined for immortality they all bore substantial names that meant something in Virginia. They were David Lambert, Richard E. Parker, Hugh Mercer, Christopher Anthony, James Sheppard, Reuben Blakey, Benjamin Graves, Miles Bott, Henry E. Coleman, John M. Sheppard, and Richard Curd.

By the time the jury had been organized it was Saturday again and it hardly seemed worth while to start the trial. So Judge Marshall adjourned the Court for the weekend. Even the heavens seemed relieved that at last progress had been made. A violent thunderstorm on Tuesday night broke the heat wave and made life more bearable.

During the weekend Blennerhassett was the object of what he described as “another advance from female humanity.” Mrs. Jean Auguste Marie ChevalliÉ, wife of the French Consul and Judge Peter Lyon’s daughter, sent him a message asking if he would accept refreshments of delicacies she might provide. The ladies were outdoing themselves to see which one could qualify as benefactor-in-chief. Mrs. ChevalliÉ’s genteel inquiry offset in some degree the annoyance the prisoner was experiencing at the hands of idle visitors to the penitentiary desirous of gratifying their curiosity by surveying his countenance and his quarters. More disturbing than that was a letter from his financial agent in Philadelphia informing him that, because of the attachment served on Blennerhassett’s funds, he had been obliged to dishonor all the bills drawn and presented for acceptance since January 20 last. Blennerhassett interpreted the statement as marking the disappearance of the last pecuniary resources of his poor family.

Now at last, after weeks of delay, the stage was finally set. When Court convened on Monday, the completed jury was seated. This day saw the arrival of reinforcements for the defense in the person of Charles Lee. His presence appears to have been designed primarily to lend distinction to Burr’s cause by including the magic name of Lee among his defenders. Charles Lee, a brother of “Light Horse Harry,” had been Attorney General of the United States in Washington’s cabinet. He, too, was a descendant of William Randolph of Turkey Island and his wife Mary Isham. So far as the record of the trial shows, his participation was not in proportion to his eminence as a lawyer.

When the bailiff had called the Court to order the prisoner was directed to stand while the clerk read the indictment. It was the same to which he had pleaded “Not guilty” when the Grand Jury returned a true bill on June 24.

It proclaimed that the Grand Inquest of the United States of America, in and for the Fifth Circuit and the Virginia District, did present that Aaron Burr, late of the city of New York, and the State of New York, attorney at law, residing within the United States and owing allegiance and fidelity to the same, “not having the fear of God before his eyes, nor weighing the duty of his said allegiance, but being moved and seduced by the instigation of the devil,” on the 10th of December, 1806, at a certain place called by the name of Blennerhassett Island, “with force and arms, unlawfully, maliciously and traitorously did compass, imagine and intend to raise and levy war, insurrection and rebellion against the said United States.”

The indictment, in its noble Tudor phraseology, went on to point out that in order to achieve his purpose Burr, “with a great multitude of persons whose names at present are unknown to the Grand Inquest aforesaid, to a great number, to wit, to the number of thirty persons and upwards, armed and arrayed in a warlike manner, that is to say with guns, swords and dirks, and other warlike weapons as well offensive and defensive, being then and there unlawfully, maliciously and traitorously assembled and gathered together,” did “falsely, and traitorously and in a warlike and hostile manner array and dispose themselves against the United States.”

The indictment added that this force on the same day had left the island “with the wicked and traitorous intention of descending the river and taking possession of the city of New Orleans.”

“... a great multitude of persons ... to wit, to the number of thirty persons and upwards....”

Not since the three famous tailors entitled their manifesto “We, the People of England” had so little been made to sound like so much. Thus the indictment set for the prosecution the exacting task of proving that thirty persons, mostly youths, assembling on an island in the Ohio River for little more than twenty-four hours, constituted levying war against the majesty and might of the United States of America.

To render the charge even more difficult of proof the prosecution admitted at the outset that the alleged arch-traitor, Aaron Burr, was not even present in person at the warlike assemblage!

But was his presence necessary to prove his guilt? In the habeas corpus proceedings in the case of Erich Bollman and Samuel Swartwout the Chief Justice had delivered an opinion indicating that it was not. The prosecution lost no opportunity of reminding him of it. It was on this opinion that it had largely counted on a conviction.

So, in his opening remarks to the jury, Mr. Hay once more quoted from the Chief Justice’s opinion: “... if war be levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, are to be considered as traitors.”

Mr. Hay went farther afield. He delved into the English authorities to demonstrate that in Great Britain, under the statute of 25 Edward III, on which the American theory of treason was based, the crime of treason might be committed not only in the physical absence of the principal but also without the bearing of arms.

When Mr. Hay had completed his opening statement, Colonel Burr appealed to the Court to expedite the business by meeting as early as possible and adjourning late. He cited the English custom of sitting from twelve to sixteen hours a day. Learned counsel shuddered at the very thought. Objection was instantly raised on the ground that English courts did not have to contend with the heat of Richmond in midsummer. Tempering justice with mercy, Judge Marshall ruled that the Court would meet at nine o’clock in the morning and sit until four o’clock in the afternoon.

These preliminaries having been attended to, the call came for the first witness for the prosecution and General Eaton was sworn. No sooner had he taken the stand than the defense was on its feet protesting the propriety of hearing Eaton’s evidence. They contended that it had to do only with intention. Therefore before it could be admitted an overt act had to be proved. The controverted point led to a long and animated debate which consumed the rest of the afternoon.

As was to be his custom throughout the trial, Judge Marshall adjourned Court before presenting his opinion. With his genius for application he would work far into the night preparing his opinion in order to have it ready when Court convened in the morning. Where he was concerned there was to be no undue haste, no chance for misconstruction. The opinion would be in writing and reflect the logical approach that was characteristic of his legal papers. It was on his acute reasoning rather than profound knowledge of the authorities that the force of his opinions depended.

In the morning, true to his promise, the Chief Justice was ready to deliver his opinion. It was a dissertation on what testimony was and was not relevant to this time. As applied to General Eaton’s testimony it permitted that part which related to Burr’s design to seize New Orleans and divide by force the western from the Atlantic states. It excluded the more colorful passages which had to do with Burr’s alleged plans for the overthrow of the Government in Washington.

With this injunction Eaton was told to go ahead and tell his story in his own way. The hint, however, was made to him that he might well leave out autobiographical material having to do with his services to the nation in Tripoli, which he considered a basis for the nation’s gratitude. Eaton, however, did not take the hint, but reviewed his exploits at considerable length before launching into the now familiar story of Burr’s advances to him in the prospect of interesting him in the expedition. It had appeared in print so many times that the majority of those present knew the essential details.

When General Eaton at last finished his testimony, cross-examination by the defense was brief and to the point. He was asked if he had not long had a claim against the Government for repayment of the expenses allegedly incurred by him on his Tripoli expedition. He replied that such was the case. And was not the claim for $10,000? Eaton replied that it was. And had it been paid? Yes. When had it been paid? In March last!

What the defense brought out in those few short questions was that, after years of refusal, the Congress that was in the hands of the friends of President Jefferson at last had honored General Eaton’s claim. And it had done so just when General Eaton’s testimony gave every indication of being essential to the conviction of Aaron Burr.

That was all the defense wanted. It let General Eaton go. Less than a fortnight before Eaton’s appearance in court as a witness Blennerhassett wrote in his diary: “The once redoubted Eaton has dwindled down in the eyes of this sarcastic town into a ridiculous mountebank, strutting about the streets under a tremendous hat, with a Turkish sash over colored clothes when he is not tippling in the taverns.” That perhaps was a fair expression of the attitude at least of the better people of the town toward this spurious general.

What a contrast to Eaton the next witness presented! In the prevailing atmosphere of suspicion and distrust of actions and motives and testimony, Thomas Truxtun stood forth as the embodiment of truth and honor. Yet no man of his time had less reason to be loyal to the Administration in Washington or more cause to resent the shabby treatment he had received from its hands. His personal circumstances were just the sort that Burr so often undertook to make capital of in the pursuit of his own questionable designs.

Truxtun had had a distinguished career in the United States Navy, advancing to the rank of commodore. In the quasi-war with France he had commanded the U.S. Frigate Constellation in its two victorious battles with the French frigates L’Insurgente and La Vengeance. His professional skill was so well recognized that in 1802 he was chosen to command a squadron which had been fitted out for the war with Tripoli. As the squadron was about to put to sea Truxtun requested that a captain be appointed to command his flagship. It was a reasonable request in keeping with naval custom. But President Jefferson at that time entertained little enthusiasm for the Navy, which he regarded as a symbol of imperialism clashing with his democratic principles. So the Administration refused the request.

Commodore Truxtun, feeling that he had been indifferently treated, wrote an indignant letter of protest to Washington. It may have been too strongly worded and impolitic, yet Truxtun’s fine record was deserving of some consideration. But the authorities were annoyed and interpreted the letter as an offer of resignation, which it was not. Acting on this assumption the Administration accepted a resignation which had not been offered, and in so doing lost a capable officer while it opened itself up to a charge of base ingratitude toward a deserving public servant.

Under the circumstances there was nothing for the Commodore to do but retire to his farm in New Jersey, his outstanding professional career having been brought to an abrupt end, and to brood over the injustice that he had every reason to believe had been done him. He was on his farm in the summer of 1803 when Burr, having fought his duel with Hamilton, found it expedient to get away from New York. He and Truxtun were friends and Burr, on his way south, spent a night under Truxtun’s roof.

None of these past circumstances concerned Thomas Truxtun as he raised his right hand and solemnly swore to tell “the truth, the whole truth, and nothing but the truth.”

During the winter of 1805–06, the Commodore began, he saw much of his friend Burr, who in their conversations frequently mentioned a speculation in western lands. He spoke also of opening a canal or building a bridge on the Ohio River. But Truxtun made it clear that he was not interested.

The topic of conversation then turned to the Government. According to Truxtun, Burr urged him to get the Navy out of his head, declaring it would dwindle to nothing. Finally, some time in July of 1806, Truxtun recalled, Burr told him he wished to see him unwedded from the Navy of the United States and to think no more of “those men at Washington.” Burr, according to the Commodore, said he wanted to “see” or “make” him an admiral. Truxtun was not sure of the expression used. Burr then disclosed that he contemplated an expedition to Mexico in the event of a war between the United States and Spain. He asked if Truxtun would take command of a naval force in this undertaking. Truxtun said he inquired whether the Chief Executive of the United States was a party to or concerned in the project. When Burr answered emphatically that he was not, Truxtun replied that in that case he would have nothing to do with it.

Burr, according to Truxtun, confided to him that, in the event of a war with Spain, he proposed to establish an independent government in Mexico, that General Wilkinson of the Army and many officers of the Navy would join him. Truxtun remarked that he did not see how an officer of the United States could join. To this Burr replied that Wilkinson had first projected the expedition and that he, Burr, had matured it. He added that many greater than Wilkinson would take part, and thousands to the westward.

Truxtun testified further that Burr told him that, if there were no war with Spain, he intended to invite friends to settle on a piece of land on the Washita River for which he was about to complete a contract. Burr estimated that within a year he would have 1,000 families of respectable and fashionable people there.

Such in substance was Commodore Truxtun’s testimony. It was worth all the rest, for it was so patently honest that nobody questioned it.

When he had finished Burr inquired of him: “Did you ever hear me express any intention or sentiment respecting a division of the Union?”

“We were very intimate,” Truxtun answered. “There seemed to be no reserve on your part. I never heard you speak of a division of the Union.”

Burr could not have asked for better testimony from one of his own witnesses. It must have erased from the minds of the jury whatever unfavorable conclusions had been reached as a result of Eaton’s insistence that division of the Union was Burr’s aim. On the other hand the more astute among them may have made allowances for Burr’s habit of saying to each individual just so much as he felt that individual should know.

When Commodore Truxtun had stepped down from the witness stand the prosecution called Peter Taylor, the Blennerhassetts’ English gardener. He was a simple country man of limited education, in striking contrast to the distinguished naval officer who preceded him. In introducing him Mr. Hay explained that the witness would directly prove the connection between Burr and Blennerhassett. It appears, too, that the prosecution counted on Taylor as one of the two witnesses to the overt act which the Constitution required to prove guilt of treason.

Taylor’s testimony began with the events on the island immediately after receipt of the President’s proclamation informing the public of the existence of a plot and cautioning all loyal citizens to have nothing to do with it. Mr. Blennerhassett and Mr. Alston, said Taylor, had gone down the river to join Colonel Burr. On reading the proclamation the people in the vicinity of the island had become alarmed and Mrs. Blennerhassett sent Taylor in search of her husband and Burr to warn Burr not to return to the island because of the public outcry against him.

According to Taylor’s story, after going to Chillicothe and Cincinnati, he caught up with Burr in Lexington, Kentucky. Burr inquired news of the island to which Taylor replied that he had been sent by Mrs. Blennerhassett to warn him not to return. Taylor quoted himself as saying: “If you come up our way the people will shoot you.” He also testified that he had told the Colonel the people were saying the land settlement was all a fib and that Burr had something else in view.

After further wandering in Kentucky, Taylor testified that he at last came up with Blennerhassett and that they set out together on a return journey to the island. He pictured Blennerhassett as shrouding himself in mystery and, when people at the inns along the way inquired Blennerhassett’s name, Taylor was instructed to tell them it was “Tom Jones.” Blennerhassett also directed Taylor to call him that.

Taylor said Blennerhassett began to inquire for young men who owned rifles, explaining that he and Burr had bought land and wanted young men to settle on it. To this Taylor replied that he would like to go along if he could take his wife and family with him. But, according to his testimony, Blennerhassett replied that he would have to have further consultation with Burr on that point.

Then, according to the witness, Blennerhassett paused and after a moment’s hesitation said: “I will tell you what, Peter, we are going to take Mexico, one of the finest and richest places in the whole world.” Taylor went on to say that Blennerhassett told him Burr would be king of Mexico, and Mrs. Alston, Burr’s daughter, was to be queen when Burr died.

Taylor said he inquired of Blennerhassett what would happen to the young men when they found out that the expedition was against Mexico, after they had signed up to settle the lands. He quoted the latter as replying: “Oh, by God, I tell you, Peter, every man that will not conform to order and discipline I will stab; you’ll see how I’ll fix them.” The witness said he then remarked to Blennerhassett that people were spreading the rumor that he wanted to divide the Union. According to Taylor, Blennerhassett explained that he and Burr could not do that themselves. All they could do was to tell the people the consequences of it. Blennerhassett, said Taylor, pointed out that the people in the western states now paid $400,000 a year to the Government in taxes and received no benefit from it. What a fine thing it would be if they could keep the money among themselves on the western side of the mountains, make locks, build bridges, and cut roads.

The District Attorney now took over the witness. He wanted to know if Taylor was not on the island at the time of the assembly. On being answered in the affirmative he asked if the men had guns. Taylor replied that some of them had and that they went hunting. He could not give the exact number that were armed. Further questioning brought out that Taylor did not know whether the weapons were rifles or muskets. He said the only pistols he saw were Blennerhassett’s. He added that the men had powder and lead and that some of them were running bullets. He admitted that at no time had he seen Burr on the island and that he understood he was not in that part of the country at the time.

With the conclusion of Peter Taylor’s testimony Court adjourned for the day. There was no doubt that much of this testimony was damaging. Some of Taylor’s statements of what Blennerhassett said corresponded with the testimony of other witnesses. For example, Blennerhassett’s alleged remarks about Burr and himself being unable to divide the Union but only to point out the advantages of such a division, corresponded exactly with what John Graham, the Government’s investigator, said Blennerhassett told him. But could Taylor’s word be trusted on the matter of the Mexican empire with Burr at its head and Theodosia as his successor? The more melodramatic the evidence the greater the suspicion that the witness had been coached before taking the stand, or that such wild statements were mere figments of his imagination.

When the Court reconvened on the morning of Wednesday, August 19, the first witness to take the stand was General John Morgan, a sturdy frontiersman who lived with his father, Colonel George Morgan, and his brother Tom on an estate appropriately named Morganza, a few miles from Pittsburgh.

General Morgan, having been sworn, testified that some time in August of 1806, his father received a letter signed by Aaron Burr stating that he and Colonel de Pestre would like to dine with them the following day. His father, said General Morgan, asked his two sons to meet Colonel Burr on the road and this they did about seven miles distant from Morganza.

After a few words of general conversation, continued the witness, Colonel Burr observed that the Union could not possibly last and that a separation of the states must ensue as a natural consequence in four or five years. General Morgan went on to say that, at his father’s table during dinner, Colonel Burr again observed that the separation of the Union must inevitably take place in less than five years. To this General Morgan said his father exclaimed “God forbid!” General Morgan testified further that Burr observed that with 200 men he could drive the President and Congress into the Potomac, and that with 400 or 500 he could take possession of the city of New York.

After dinner, said the General, Burr walked with the two brothers for about a mile. In the course of this airing he asked if either of them had a military turn, surely a surprising question to ask a man bearing the title of General! Morgan’s testimony ended with an account of a farewell ride with Burr to the town of Washington, about ten miles distant, during which Burr made further inquiries about the local militia.

On cross-examination by Colonel Burr, General Morgan admitted that the letter from Burr to Morgan’s father followed one from the elder Morgan to Burr inviting him to Morganza, so that the meeting between Burr and the Morgans had not after all been initiated by Burr.

General Morgan was followed on the witness stand by his father who confirmed in substance the evidence presented by his son. He explained further that he had enjoyed a long acquaintance with Burr and had received many civilities from him. In fact, said Colonel Morgan, when Burr was being persecuted after his duel with Hamilton he had invited Burr to stay with him at Morganza.

Colonel Morgan considered Burr’s conversation at dinner so reprehensible that he informed his neighbors, General Neville and Judges Tilghman and Roberts. It was they, he said, who wrote a joint letter of warning to President Jefferson.

General Morgan was recalled to the stand by Burr just long enough to be asked what state of mind his father was in when General Neville and Judge Tilghman visited him. General Morgan replied that his father had recently had a fall which had done him considerable injury. Colonel Burr wanted to know if General Morgan had not made an apology to Judge Tilghman for the state of his father’s mind. But the only admission Burr could wring from the witness was that he had said his father was old and infirm and, like other old men, told long stories and was apt to forget his repetitions.

Thomas Morgan, the General’s younger brother, on taking the stand quoted Colonel Burr as having said that under the existing government there was no encouragement for talents; that John Randolph of Roanoke had declared on the floor of the Congress that men of talents were dangerous to the Government. He said Burr next asked him whether he, who at the time was studying law, would be interested in a military enterprise. And, said Tom, when he replied that it depended entirely on the object, Burr explained: “I wish you were on your way with me.”

The testimony now returned to the Blennerhassett household. The next witness was Jacob Allbright, a stolid Dutchman who, like Peter Taylor, had been in the employ of the Blennerhassetts. He testified that he had been invited to go on the expedition and that he also had been offered a dollar a head for any volunteers he could get from the Dutch colony in New Lancaster, Ohio, from which he came.

But Allbright’s most important testimony had to do with the appearance on the scene of the assemblage of Brig. Gen. Edward Tupper, of the Ohio militia, for on it depended proof of the use of force which might be construed as levying war. According to Allbright, General Tupper laid his hand on Blennerhassett and at the same time declared: “Your body is in my hands, in the name of the Commonwealth.” Then, continued the witness, seven or eight muskets were leveled at him at which Tupper protested, “Gentlemen, I hope you will not do the like.”

To this, said Allbright, one of the men who was about two yards away replied, “I’d as lieve as not.” This threat, Allbright testified, changed Tupper’s attitude and he wished Blennerhassett good luck. Allbright’s testimony was as close to showing an act of violence as that of any of the witnesses.

Recognizing the seriousness of the charge Burr questioned the witness at length in an effort to show that Allbright’s testimony had been different on an earlier occasion and, as he expressed it, “to degrade the witness by invalidating his credibility.”

Mrs. Blennerhassett, in Natchez, expressed herself as being shocked when she learned of the testimony of their former servants. In a letter to her husband she set forth in strong words her opinion of Peter Taylor and his responsibility for her husband’s indictment. “Gracious God!” she exclaimed, “confined in a prison in the dog days, and by the perjury of a wretch not many degrees from a brute!”

Next came the testimony of one Peter Love, still another of Blennerhassett’s retainers, a man who had volunteered for the expedition. He placed the number of persons assembled on the island at between twenty and twenty-five. He mentioned men with rifles, two braces of pistols, and a dirk belonging to Blennerhassett. But he weakened the charge of armed force by testifying that General Tupper and Blennerhassett had parted “in the greatest friendship,” or so he understood from others. Nor was he of much help to the prosecution when, in reply to a question, he said it was his understanding the expedition’s purpose was the settlement of the Washita lands.

On being asked by Mr. Parker, a juror, if he had seen any bullets run, Love replied that he had, but he could not say how many. “I was a servant in the house,” explained Love, “but could not mind my own business and other people’s too.”

Next to be heard was Dudley Woodbridge, Blennerhassett’s business partner and a man of parts. They operated together under the firm name of Dudley Woodbridge & Company. He testified that in September, 1806, Blennerhassett had called on him with Colonel Burr at the company’s counting house in Marietta. There, said Woodbridge, Blennerhassett told him Burr wished to buy a quantity of provisions.

The Colonel, said Woodbridge, then inquired the price of provisions and the cost of boats best calculated to carry the provisions up and down the river. Burr left with him a memorandum of the provisions wanted and also put in an order for the boats to be built. The latter were to be of the Schenectady model such as were used on the Mohawk River.

The witness described Burr ordering provisions which included pork, flour, whiskey, bacon, and kiln-dried meal, but the only thing actually purchased was the pork. The boats, said Woodbridge, were built on the Muskingum River about seven miles above Marietta. Only eleven of the fifteen ordered were completed. He then went on to tell about their seizure by the Ohio militia following publication of the President’s proclamation. He also told of being on the island the night of December 10, but added nothing new to what other witnesses had testified as to the happenings there.

Then, under the direction of Mr. Hay and with the consent of the Court, Woodbridge proceeded to recount the circumstances leading up to the assembly on the island. Late in August or early in September, he said, Blennerhassett mentioned to him that he had embarked on an enterprise with Colonel Burr; that General Eaton and others were engaged in it and that the prospects were flattering. From Blennerhassett’s statements Woodbridge inferred that the object was Mexico, though he admitted that that was not positively stated.

Blennerhassett, said Woodbridge, asked him if he had a disposition to join but he replied that he preferred his present situation to the uncertainties of such an expedition.

“You know Mr. Blennerhassett well,” remarked Colonel Burr in commencing the cross-examination. “Was it not ridiculous for him to be engaged in a military enterprise? How far can he distinguish a man from a horse? Ten steps?”

“He is very nearsighted,” agreed Woodbridge, “and cannot know you from any of us at the distance you are now from one another. He knows nothing of military affairs. I never understood that he was a military man.”

“Is he esteemed a man of vigorous talent?” interposed Mr. Wirt.

“He is,” replied Woodbridge, “and a man of literature.” Then he delivered his estimate of his partner’s limitations: “But it was mentioned among the people in the country that he had every kind of sense but common sense; at least he had a reputation of having more of other than of common sense.”

To the question: “What were his favorite pursuits?” Woodbridge mentioned “chemistry and music.”

Here Court adjourned for the day. When it convened on the following morning three more eye-witnesses of the events on Blennerhassett Island were heard. Simeon Poole, who was not on the island itself but on the mainland opposite it, saw what looked to him like sentinels and heard what sounded like a watchword. Maurice P. Belknap was on the island and saw men cleaning rifles. He contradicted Poole’s testimony by stating that though he was a stranger he had been admitted to the island without being challenged and having to give a watchword. Edmund P. Dane, too, was permitted on the island to wander at will about the Blennerhassett mansion. Though he was a total stranger he said nobody appeared to be greatly alarmed.

The sum total of the evidence suggested that if this were levying war against the United States it was a very tepid manifestation of it.

Meanwhile Colonel Burr and his counsel were chafing over the direction the testimony was taking. At last they could restrain themselves no longer. The evidence that was being heard they protested was collateral evidence. They insisted that the prosecution be made without further delay to produce all the testimony they had relating to overt acts.

Counsel for the prosecution on the other hand maintained that it was unusual, irregular, and improper thus to restrict the testimony. The whole evidence, they contended, should be submitted to the jury whose province it was to decide whether there had been war or not.

Judge Marshall interposed to say there was no doubt the Court must hear the objections to the admissibility of evidence. Mr. Wickham urged the gentlemen of the prosecution to introduce if they could any more testimony they might have pertaining to what they deemed to be the overt acts. Mr. Hay objected to this course of procedure. But, he agreed, if the gentlemen of the defense were determined to make their motion they might proceed.

That motion, proffered by Mr. Wickham, was that until an overt act had been proved all other evidence was collateral, and therefore irrelevant and inadmissible.

Since apparently the Government’s witnesses to the alleged overt acts on Blennerhassett Island on the night of December 10, 1806, had been exhausted, if the motion of the defense were sustained no more witnesses could be heard. The practical effect of this would be that, of some 140 witnesses assembled by the Government, only the handful who had already appeared on the witness stand would be permitted to give their testimony. If the Chief Justice were to rule in favor of the motion of the defense it was tantamount to his taking from the jury the privilege of deciding what testimony was relevant and arrogating it to himself.

Therefore if the motion were sustained and, subsequently, Colonel Burr acquitted, it took no exceptional prescience to foresee that the enemies of Judge Marshall could charge that Burr’s acquittal resulted from the fact that the Chief Justice had suppressed the Government’s evidence. In refusing to commit Burr for treason the Chief Justice had then declared that the Government had not produced sufficient evidence. So the Government had gone out into the highways and byways and come up with more than a hundred witnesses, which in all conscience should have been enough to convict Aaron Burr of anything. And now, if the Chief Justice granted the defense’s motion, he would put himself on record as refusing to admit the testimony of the witnesses that the Government had so zealously gathered together in Richmond.

No question about it—the Chief Justice found himself in a tight spot.