"did any Government thirst more for the blood of a victim." The savagery of the prosecuting attorneys "would dishonor any beings but demons from Hell." That the Colonel was innocent of treason was positive; that a Bill had been found was due to "the jury not being well informed what facts constitute treason, and to gross perjury." That the Government "ardently desire to destroy Colonel Burr

I have not a doubt. And I am confident that Government does not believe him to have been guilty of a treasonable act." Under the circumstances, "it would be most pleasing, most consolatory to him, could you visit Richmond. He has many warm friends here . . . who. . have not been deterred from proving their attachment to him in the hour of adversity." As for Mr. Martin himself, Mr. Alston could tell his "amiable lady” that “if on this occasion I had not come forward and offered my aid . . I should have felt myself most deservedly liable to her eternal reproaches."

Mr. Alston could not help but read between the lines. And finally the Colonel sent for Theodosia, sick as she was at the time; but there must be "no agitations, no complaints, no fears or anxieties on the road, or I renounce thee." He wanted, he told her, "an independent and discerning witness to my conduct and that of the Government . . . I should never invite any one, much less those so dear to me, to witness my disgrace. I may be immured in dungeons, chained, murdered in legal form, but I cannot be humiliated or disgraced. If absent, you will suffer great solicitude. In my presence you will

feel none, whatever be the malice or the power of my enemies, and in both they abound."

The Alstons came at once, bringing "Gampy" with them, and spent their first night on arrival at the Penitentiary. And if Mr. Blennerhassett, who reported having heard it from Colonel Burr, is to be believed, there was a very lively scene between the father and son-in-law, as a result of which Mr. Alston offered to print a public reconciliation but was spared the humiliation out of regard for Theodosia. There followed some extremely awkward days for Mr. Alston-marked by the constant, if unsuccessful, attempts of Mr. Blennerhassett to collect his money from him-while Theodosia went everywhere making friends, accomplishing more for her father in her own smiling way than all his attorneys put together, and earning for herself the affection of all Richmond, to say nothing of the unconcealed infatuation of Mr. Martin.

So the days passed, with the thermometer at ninety-eight. . .

CHAPTER III

NOT GUILTY

I

ON August 3, when Mr. Marshall opened the court at noon, Richmond was again packed, the Hall jammed, the crowd, except for a larger group than before of Burr adherents, hostile and menacing. It was unbelievably hot. Colonel Burr appeared on the arm of his son-in-law-an exhibition of cordiality the publicity of which may or may not have appealed to the diffident Mr. Alston-having walked from the home of Luther Martin to which he had been removed on August 2, for safe keeping in a room padlocked and barred, and guarded with sentries.

The great trial was beginning. The trial which was to decide whether or not the old pernicious English doctrines of constructive treason should prevail in America. From the first, the prosecution sought to establish the theory that assemblage with hostile intent was equivalent to an act of war, and that the actual presence of the instigator was not essential for conviction. It was not necessary, Mr. Hay insisted, that the persons assembled should

proceed to hostilities, or that "they should be armed, or appear in military array." From the first, the defense maintained that under the Constitution only the proving by two witnesses of a definite overt act of hostility could constitute treason. The State, Colonel Burr himself proclaimed, held that "though there was no force used in reality, yet by construction there was force used; that though I was not personally present, yet that by construction I was present; that though there really was no military array, yet by construction there was military array." This was constructive treason, and "we totally deny all these things."

The conflict naturally involved a fundamental question concerning the admissibility of evidence, the State claiming the privilege of introducing testimony with regard to the previous general intentions and designs of the accused, the defense denying the validity of such collateral evidence. The Government must confine itself first to proving the overt act in question. An opinion on this decisive point was soon required of the Chief Justice-precipitated by the presence in the witness box of General Eaton with his affidavit, so much of which had nothing to do with the events on Blennerhassett's Island.

Mr. Marshall decided that "it is the most useful

and the natural order of testimony to show first the existence of the fact respecting which the inquiry is to be made." On the other hand, it was true "that the crime alleged consists of the

fact, and of the intention with which that fact was committed. The testimony disclosing both.