Hay then related what Marshall and John Randolph had said, underscoring the statement that "the Gr: Jury did not want A. B. as a witness." Hay did full credit, however, to Burr's appearance of candor: "The attitude & tone assumed by Burr struck everybody. There was an appearance of honor and magnanimity which brightened the countenances of the phalanx who daily attend, for his encouragement & support." 1

Day after day was consumed in argument on points of evidence, while the grand jury were examining witnesses. Marshall delivered a long written opinion upon the question as to whether a witness could be forced to give testimony which he believed might criminate himself. The District Attorney read Jefferson's two letters upon the subject of the subpoena duces tecum. No pretext was too fragile to be seized by one side or the other, as the occasion for argument upon it demanded for instance, whether or not the District Attorney might send interrogatories to the grand jury. Always the lawyers spoke to the crowd as well as to the court, and their passages at arms became ever sharper.2

Wilkinson is "an honest man and a patriot' no! he is a liar and a thief; Louisiana is a "poor, unfortunate, enslaved country"; letters had been seized by "foulness and violence"; the arguments of Burr's attorneys are "mere declamations"; the Government's agents are striving to prevent Burr

1 Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong. 2 Burr Trials, 1, 197-357.

1

from having "a fair trial. . the newspapers and party writers are employed to cry and write him down; his counsel are denounced for daring to defend him; the passions of the grand jury are endeavored to be excited against him, at all events"; 1 Hay's mind is "harder than Ajax's seven fold shield of bull's hide"; Edmund Randolph came into court "with mysterious looks of awe and terror. . as if he had something to communicate which was too horrible to be told"; Hay is always "on his heroics"; he "hopped up like a parched pea"; the object of Burr's counsel is "to prejudice the surrounding multitude against General Wilkinson"; one newspaper tale is "as impudent a falsehood as ever malignity had uttered" - such was the language with which the arguments were adorned. They were, however, well sprinkled with citations of authority.2

1 This was one of Luther Martin's characteristic outbursts. Every word of it, however, was true.

2 Burr Trials, 1, 197–357.

CHAPTER IX

WHAT IS TREASON?

No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

(Constitution, Article I, Section 3.) Such are the jealous provisions of our laws in favor of the accused that I question if he can be convicted. (Jefferson.)

The scenes which have passed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (Aaron Burr.) That this court dares not usurp power is most true. That this court dares not shrink from its duty is no less true. (Marshall.)

WHILE the grand jury had been examining witnesses, interesting things had taken place in Richmond. Burr's friends increased in number and devotion. Many of them accompanied him to and from court each day.' Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city. Fashionable Richmond was rapidly becoming Burr-partisan. In society, as at the bar, the Government had been maneuvered into defense. Throughout the country, indeed, Burr's numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests - or would make greater

1 Blennerhassett Papers: Safford, 298.

Blennerhassett wrote this comment when the trial was nearly over. He said that two hundred men acted as a bodyguard to Burr on his way to court each day.

2 Parton: Burr, 481.

sacrifices to aid him than this man." 1 But this availed Burr nothing as against the opinion of the multitude, which Jefferson manipulated as he chose. Indeed, save in Richmond, this very fidelity of Burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his followers to aggressive action. On the streets, in the taverns and drinking-places, his adherents grew bolder. Young Swartwout chanced to meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On learning of the incident Jackson "was wild with delight." Burr's enemies were as furious with anger. To spirited Virginians, only treason itself was worse than the refusal of Wilkinson, thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public impression of Wilkinson's cowardice. He challenged the General to a duel; the hero refused - "he held no correspondence with traitors or conspirators," he loftily observed; 4 whereupon the young "conspirator and traitor' denounced, in the public press, the commander of the American armies as guilty of treachery, perjury, 1 April 1, 1807, "Register," Plumer MSS. Lib. Cong.

2 Swartwout was then twenty-four years old.

3 Parton: Jackson, 1, 335.

• Swartwout challenged Wilkinson after the trial was over.

forgery, and cowardice.1 The highest officer in the American military establishment "posted for cowardice" by a mere stripling! More than ever was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted, Wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward Burr; and he wrote to Jefferson in unctuous horror: "I had anticipated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour- . . To my Astonishment I found the Traitor vindicated & myself condemned by a Mass of Wealth Character-influence & Talentsmerciful God what a Spectacle did I behold- Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant." 2

Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. Accept I pray, my salutations and assurances of respect and esteem." 3

1 See brief account of this incident, including Swartwout's open letter to Wilkinson, in Blennerhassett Papers: Safford, footnote to 459–60. 2 Wilkinson to Jefferson, June 17, 1807, "Letters in Relation,” MSS. Lib. Cong.

Jefferson to Wilkinson, June 21, 1807, Wilkinson: Memoirs, II, Appendix xxx. Jefferson's letter also contains the following: "You have, indeed, had a fiery trial at New Orleans, but it was soon apparent that the clamorous were only the criminal, endeavouring to turn the public attention from themselves, and their leader, upon any other object... Your enemies have filled the public ear with slanders, and your mind with trouble, on that account. The establishment of their guilt, will.. place you on higher ground in the public estimate, and public confidence."