to the general. “The president has undertaken to prejudge my client by declaring ‘of his guilt there can be no doubt,’ ” Martin thundered in court. “He has let slip the dogs of war, the hellhounds of prosecution, to hunt down my friend. And would this president of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?” It was, on both sides, a political as well as a legal contest.
To Jefferson’s intense frustration, at every hearing, from the first application in February 1807 before the Supreme Court for a writ of habeas corpus for Swartwout and Bollman, the leading judge was the chief justice, John Marshall, an overt Federalist appointed to his position by John Adams in 1801. In releasing Burr’s two messengers, Marshall had laid out what was to be his unchanging opinion, that the constitution specified that “treason against the United States shall consist only in levying war against them,” and that “conspiracy is not treason . . . To conspire, and actually to levy war are distinct offences.” As a result, when Burr appeared before Marshall at a preliminary hearing on March 31 in Richmond, the capital of Burr’s home state, Marshall would indict him only on the grounds of levying war against a foreign power, a charge that amounted to a misdemeanor. It was left to the grand jury, whose hearings began on May 22, to decide whether to reinstate the charge of treason. Again in charge of the case, this time as judge of the circuit court in Virginia, Marshall did not challenge the president’s refusal to let his papers be subpoenaed, although he continued to make plain his opinion that the treason charge was unsound.
The appearance in court of General James Wilkinson on June 15 was consequently one of high drama, bringing onto the stage the prosecution’s chief witness and the defense’s primary target. For political connoisseurs, he would serve as a surrogate for the president; for conspiracy theorists, he was the one person who might be able to throw light on Burr’s real intentions; but for enthusiasts of crude emotional confrontation, nothing matched the electric moment when Wilkinson approached Burr in the handsome, white-paneled hall of Virginia’s House of Delegates.
“Wilkinson strutted into court and took his stand in a parallel line with Burr on his right hand,” wrote Washington Irving. “Here he stood for a moment, swelling like a turkey cock and bracing himself 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 the 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 cooly resumed his former position, and went on versing 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.”
Irving wrote from the point of view of a New York Federalist and someone who confessed to feeling “no sensation but compassion for [Burr].” From Wilkinson’s perspective, the scene played differently. “I was introduced to a position within the bar very near my adversary,” he wrote Jefferson two days later. “I saluted the bench and inspite 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.”
For the next four days Wilkinson gave evidence before the grand jury. Seeing himself as the nation’s savior confronting its betrayer must have left him ill- prepared for the hostility he faced, not just from Burr’s lawyers, but from the foreman of the jury, John Randolph. A disease in adolescence had left him with a childlike voice and no facial hair, condemning him to be an outsider in Virginia’s testosterone-fueled society. Politically, he exploited his position on the sidelines to become a coruscating, merciless critic of any frailty or compromise that he detected among the main players. “He is a very slight man but of the common stature,” his fellow congressman William Plumer noted. “At a little distance, he does not appear older than you are; but, upon a nearer approach, you perceive his wrinkles and grey hairs . . . [His opponents] ridicule and affect to despise him; but a despised foe often proves a dangerous enemy.”
Although nominally a Republican, he made a particular target of Jefferson’s extensive use of federal power, basing his criticism, to the president’s intense irritation, on the doctrine of state sovereignty put forward in 1798 by Jefferson himself. This stance ensured that Randolph was also adamantly opposed to a standing army—in 1800 he dismissed it in Congress as “a handful of Ragamuffins.” In Wilkinson himself, Randolph discerned a wickedness that had tempted Jefferson into compromising his former values, and he roundly declared that the general was “the only man I ever saw who was a villain from the bark to the core.” It became Randolph’s mission to persuade his fellow jurors to indict the general as a traitor, more vicious than Burr.
The hearings were secret, but both protagonists agreed, for their own purposes, that the general had become the main focus of the grand jury hearings. Wilkinson portrayed himself as victim, while Randolph declared, “There was scarcely a variance of opinion amongst us [in the grand jury] as to his guilt.” In fact, most jurors opposed Randolph’s move to arraign Wilkinson, but did vote to indict Burr on a charge of treason on the basis of the general’s testimony and the ciphered letter he produced. And at a later hearing, when Burr’s lawyers called three grand jurors to give evidence intended to demonstrate the general’s untrustworthiness, their accounts strengthened rather than undermined Wilkinson’s standing as a witness.
With Burr bailed out on ten thousand dollars and directed to appear for trial on August 3 on charges of treason, referring to the threat to New Orleans, and high misdemeanor, relating to the attack on Mexico, Wilkinson was released from his ordeal. “Your enemies have filled the public ear with slanders, & your mind with trouble on that account,” the president wrote consolingly from Washington. “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 knolege [
THE PROSECUTION BEGAN with William Eaton’s recollected conversations in the winter of 1805–6 with the accused: “Colonel Burr now laid open his project of revolutionizing the territory west of the Allegheny, establishing an independent empire there; New Orleans to be the capital, and he himself to be the chief; organizing a military force on the waters of the Mississippi, and carrying conquest to Mexico.” Eaton was partially supported by Commodore Truxton, who said nothing of secession, but remembered Burr declaring at that time that he “intended to attack Veracruz and Mexico, give liberty to an enslaved world, and establish an independent government in Mexico.”
Secession returned in an affidavit from Colonel George Morgan, founder of New Madrid, and a pioneer settler in the west from the 1780s, who told of Burr’s conversation when he came to stay in the summer of 1806. “After dinner I spoke of our fine country,” the old man testified. “I observed that when I first went there, there was not a single family between the Allegheny mountains and the Ohio; and that by and by we should have congress sitting in this neighborhood or at Pittsburg [
Marshall’s narrow interpretation of what constituted treason, however, pushed the focus of the trial to the events that took place on Blennerhassett’s island in the Ohio River, since it was there that men, arms, and transport were most obviously brought together to “levy war.” Blennerhassett’s gardener, Peter Taylor, offered a vivid account of a conversation with his normally fastidious employer: “He made a sudden pause and said, ‘I will tell you what, Peter, we are going to take Mexico, one of the finest and richest places in the whole world.’ He said that Colonel Burr would be the king of Mexico, and Mrs. Alston, daughter of Colonel Burr, was to be the queen of Mexico whenever Colonel Burr died. He said that Colonel Burr had made fortunes for many in his time, but none for himself; but now he was going to make something for himself.”
The evidence of other young men invited by Blennerhassett to join an undefined adventure in the west— the defense insisted it was merely to settle Burr’s 300,000- acre holding on the Ouachita River— was inconclusive, and in any event while they were on the island, Burr was demonstrably a hundred miles away with Andrew Jackson. On August 20, Burr moved to have the trial ended because the evidence “utterly failed to prove any overt act of war had been committed.” Marshall accepted that the Blennerhassett gathering was not treasonous and refused to hear any evidence relating to events subsequent to it. The prosecution case quickly lapsed, with many witnesses,
