The Conspiracy And Trial Of Aaron Burr

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From hiding, Burr tries to send a last message to his men. It is a note stitched into the Colonel’s old overcoat worn by a slave boy. “If you are yet together keep together and I will join you tomorrow night—in the mean time put all your arms in perfect order. Ask the bearer no questions but tell him all you may think I wish to know.—He does not know this is from me, nor where I am.”

The boy is apprehended, the note discovered. Immediately Acting Governor Mead encircles Burr’s camp with militia and arrests every man he can lay hands on.

Burr, with Major Robert Ashley for a guide, is already riding desperately off through the forest toward the Spanish border—and to capture at Carson’s Ferry.

Attorney for the Defense

Theodosia had hurried back to South Carolina with her husband and little Gampillo as soon as it became clear that her father’s castle in the air had collapsed. On March 27 Burr wrote her from Richmond: “My military escort having arrived at Fredericksburg on our way to Washington, there met a special messenger, with orders to convey me to this place. … I am to be surrendered to the civil authority tomorrow, when the question of bail is to be determined. In the mean time I remain at the Eagle Tavern.”

While all Richmond buzzed with the excitement of his arrival, Burr was busy with a tailor rigging him more suitable apparel than the boatman’s trousers and floppy felt hat that were already notorious. The consummate actor was preparing to play his greatest role. He managed somehow to secure funds and to get in touch with well-wishers willing to stand bail. Around noon on March 30, in a private room of the Eagle Tavern, he was brought before Chief Justice John Marshall for pre-trial examination.∗

∗ Until 1891, Justices of the Supreme Court, including the Chief Justice, regularly heard cases in the federal circuit courts as well.

The government’s case was in the hands of an ardent Republican, George Hay, United States District Attorney for Virginia, since Blennerhassett’s island on the Ohio, the chief scene of the alleged crimes, was within the confines of that enormous commonwealth.

On behalf of Burr appeared two of the most esteemed members of the Richmond bar: portly Edmund Randolph, one-time governor of Virginia, and John Wickham, a Long Island man, accused by the Republicans of Tory antecedents.

George Hay presented a copy of the evidence on which the Attorney General had based his charges against Bollman and Swartwout when they appeared in Washington, shipped north under armed escort by General Wilkinson. Nicholas Perkins told a plain tale of Burr’s arrest. Hay moved forthwith that the prisoner be committed on the charge of high misdemeanor in preparing a military expedition against the dominions of the king of Spain. Further, he contended that the prisoner had committed acts of treason in gathering a force of armed men with the intention of seizing the city of New Orleans, fomenting a revolt in the Orleans Territory, and separating the western states from the Union. Hay referred to the interpretation of treason promulgated by the Supreme Court in the Chief Justice’s own words only a month before, when Bollman and Swartwout were freed on a writ of habeas corpus. This decision seemed to describe the assembling of armed men for a treasonable purpose as treason. Since argument by counsel would be necessary on this motion, all parties agreed to move the proceedings up the hill to the courtroom in the state’s new Ionic capitol, designed by Thomas Jefferson.

Next morning the Chief Justice appeared betimes on the bench. William Wirt, who was himself soon to join the prosecution, had described John Marshall a couple of years before as “in person tall, meagre and emaciated. His head and face are small in proportion to his height, his complexion swarthy, the muscles of his face relaxed … his countenance has a faithful expression of great good humor and hilarity; while his black eyes … possess an irradiating spirit which proclaims the imperial powers of his mind. … His voice is hard and dry; his attitude … often extremely awkward; as it was not unusual for him to stand with his left foot in advance, while all his gesture proceeded from his right arm. … His eloquence consists in the apparently deep selfconviction, and emphatic earnestness of his manner.”

Attorney General Rodney was waiting to address the court before leaving for Washington. Burr’s lawyers were eager to begin the defense. The crowded courtroom waited, breathless. Colonel Burr appeared half an hour late, announcing with a debonair smile that he had mistaken the hour.

Since the stairways and lobbies were packed with Richmonders trying to get in, proceedings were adjourned to the hall of the House of Delegates. Burr’s lawyers launched into their argument: intent was no basis for a charge of treason; according to the Constitution the crime of treason had to be an overt act, sworn to by two witnesses. Colonel Burr rose and in his most courtly manner pointed out that he had already been acquitted of all these charges in Kentucky and Mississippi; that in each case he himself had sought an investigation; that he had not forfeited his bond by fleeing the jurisdiction of any court, but had merely retired to avoid the illegal seizure of his person and property by a military force.