one who, for the moment, had been made the object of the country's execration.1

2

Jackson had recovered from his brief distrust of Burr, and the reaction had carried his tempestuous nature into extreme championship of his friend. "I am more convinced than ever," he wrote during the trial, "that treason was never intended by Burr." Throughout the extended and acrimonious contest, Jackson's conviction grew stronger that Burr was a wronged man, hounded by betrayers, and the victim of a political conspiracy to take his life and destroy his reputation. And Jackson firmly believed that the leader of this cabal was Thomas Jefferson. "I am sorry to say," he wrote, "that this thing [the Burr trial] has. . assumed the shape of a political persecution." 3

The Administration retaliated by branding Andrew Jackson a "malcontent"; and Madison, because of Jackson's attitude, prevented as long as possible the military advancement of the refractory Tennesseean during the War of 1812. On the other hand, Burr never ceased to be grateful to his frontiersman adherent, and years later was one of those who set in motion the forces which made Andrew Jackson President of the United States."

Nor was Jackson the only Republican who considered Jefferson as the contriving and energizing hand of the scheme to convict Burr. Almost riotous

1 Parton: Jackson, 1, 333.

2 Jackson to Anderson, June 16, 1807, ib. 334.

5 Parton: Burr, 606-08; see also Parton: Jackson, 11, 258-59, 35154; and Davis, II, 433–36.

were the efforts to get into the hall where the trial was held, though it was situated on a steep hill and "the ascent to the building was painfully laborious." 1 Old and eminent lawyers of Richmond could not reach the bar of the court, so dense was the throng.

One youthful attorney, tall and powerful, "the most magnificent youth in Virginia," determined to witness the proceedings, shouldered his way within and "stood on the massive lock of the great door" of the chamber. Thus Winfield Scott got his first view of that striking scene, and beheld the man whose plans to invade Mexico he himself, more than a generation afterward, was to carry out as Commander of the American Army. Scott, there and then, arrived at conclusions which a lifetime of thought and experiences confirmed. "It was President Jefferson who directed and animated the prosecution," he declares in his "Memoirs." Scott records the political alignment that resulted: "Hence every Republican clamored for execution. Of course, the Federalists. . compacted themselves on the other side." 3

Of all within the Hall of Delegates, and, indeed, among the thousands then in Richmond, only two persons appeared to be perfectly at ease. One of them was John Marshall, the other was Aaron Burr. Winfield Scott tells us of the manner of the imperiled man as he appeared in court on that sultry midday of May: "There he stood, in the hands of power, on the brink of danger, as composed, as immovable,

1 Address of John Tyler, "Richmond and its Memories," Tyler, 1, 219. 2 Parton: Burr, 459. Memoirs of Lieut.-General Scott, 1, 13.

as one of Canova's living marbles." But, says Scott, "Marshall was the master spirit of the scene." 1

Gathered about Burr were four of his counsel, the fifth and most powerful of his defenders, Luther Martin, not yet having arrived. The now elderly Edmund Randolph, bearing himself with "overawing dignity"; John Wickham, whose commanding presence corresponded well with his distinguished talents and extensive learning; Benjamin Botts, a very young lawyer, but of conceded ability and noted for a courage, physical and moral, that nothing could shake; and another young attorney, John Baker, a cripple, as well known for his wit as Botts for his fearlessness- this was the group of men that appeared for the defense.

For the prosecution came Jefferson's United States District Attorney, George Hay eager, nervous, and not supremely equipped either in mind or attainments; William Wirt - as handsome and attractive as he was eloquent and accomplished, his extreme dissipation 2 now abandoned, and who, by his brilliant gifts of intellect and character, was beginning to lay the solid foundations of his notable career; and Alexander MacRae, then LieutenantGovernor of Virginia - a sour-tempered, aggressive, well-informed, and alert old Scotchman, pitiless in his use of sarcasm, caring not the least whom he

1 Memoirs of Lieut.-General Scott, 1, 13, 16.

2 See Great American Lawyers: Lewis, 11, 268-75.

Kennedy says that the stories of Wirt's habits of intoxication were often exaggerated (Kennedy, 1, 68); but see his description of the bar of that period and his apologetic reference to Wirt's conviviality (ib. 66-67).

offended if he thought that his affronts might help the cause for which he fought. David Robertson, the stenographer who reported the trial, was a scholar speaking five or six languages.1

With all these men Marshall was intimately acquainted, and he was well assured that, in making up his mind in any question which arose, he would have that assistance upon which he so much relied

exhaustive argument and complete exposition of all the learning on the subject to be decided.

Marshall was liked and admired by the lawyers on both sides, except George Hay, who took Jefferson's view of the Chief Justice. Indeed, the ardent young Republican District Attorney passionately espoused any opinion the President expressed. The whole bar understood the strength and limitations of the Chief Justice, the power of his intellect no less than his unfamiliarity with precedents and the learning of the law. From these circumstances, and from Marshall's political wisdom in giving the lawyers a free hand, resulted a series of forensic encounters seldom witnessed or even tolerated in a court of justice.

The first step in the proceedings was the examination by the grand jury of the Government's witnesses, and its return, or refusal to return, bills of indictment against Burr. When the clerk had called the names of those summoned on the grand jury, Burr arose and addressed the court. Clad in black silk, hair powdered and queue tied in perfect fashion, the extreme pallor of his face in striking contrast to 1 Blennerhassett Papers: Safford, 426.

his large black eyes, he made a rare picture of elegance and distinction in the uncouth surroundings of that democratic assemblage.

The accused man spoke with a quiet dignity and an "impressive distinctness" which, throughout the trial, so wrought upon the minds of the auditors that, fifty years afterward, some of those who heard him could repeat sentences spoken by him.1 Burr now objected to the panel of the grand jury. The law, he said, required the marshal to summon twentyfour freeholders; if any of these had been struck off and others summoned, the act was illegal, and he demanded to know whether this had been done.2

For an hour or more the opposing counsel wrangled over this point. Randolph hints at the strategy of the defense: "There never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold." Marshall sustained Burr's exception: undoubtedly the marshal had acted "with the most scrupulous regard to what he believed to be the law," but, if he had changed the original panel, he had transcended his authority. It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed."

"With regret," Burr demanded the right to challenge the remainder of the grand jury "for favour." 5 Hay conceded the point, and Burr challenged Sena

1 Parton: Burr, 461. 2 Burr Trials, 1, 31-32. 3 Ib. 37. 4 Ib. 38. 5 Meaning the partiality of the persons challenged, such as animosity toward the accused, conduct showing bias against him, and the like. See Bouvier's Law Dictionary: Rawle, 3d revision, II, 1191.