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CHAPTER I

ARRAIGNMENT

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THE news of Colonel Burr's arrival at Bayou. Pierre was known in Congress on February 19, 1807. On February 27, the Cabinet decided to discharge all the militia . . . from the mouth of the Cumberland upwards; to give up all boats and provisions seized, except Blennerhassett's to institute an enquiry into the proceedings of Burr and his adherents from New York to New Orleans; and particularly to appoint good men . . . to take affidavits-the Attorney General to prepare the interrogatories." In due course, it was announced that the traitor had been captured.

The great conspiracy had collapsed. "I congratulate you, sir," the priceless General Wilkinson was writing to the President, "with my whole soul on the issue which the nefarious project has taken." How inspiring, he thought, had been the patriotism of the West and of Louisiana-those regions which, a few months before, he had seen ripe for rebellion. But there was always danger of a survival of activ

ity against Spain-this subject, at least, could still be harped upon-and strong measures must be maintained. And "when the tempest has passed away," the General hoped that he would "not be left alone to buffet a combination of bar and bench." Mr. Jefferson must protect his General; and since the only way in which this could be done-in fact, since the only way in which Mr. Jefferson could save his own face after his loud proclamations of treason was to bring about the condemnation of Colonel Burr, the entire machinery of government was set in motion with that end in view; public funds were expended without appropriation; swarm of agents overran the country, gathering affidavits and answers to the Federal questionnaires; the President himself devoted his unremitting personal attention, the greater part of his time and the most brilliant ingenuities of his inventive mind to the consolidation of the case of the United States against Aaron Burr.

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From the very first, it was inevitable that this trial should resolve itself into a political contest between Federalists and Republicans; into an arraignment of General Wilkinson and his protector. The prisoner at the bar of justice was Aaron Burr; the reputation at stake before the bar of public opinion that of Thomas Jefferson. Aaron Burr must be convicted or the President must emerge discredited and utterly ridiculous. The issue was never for a moment ignored at Washington; Mr. Jefferson's personal prosecution of Colonel Burr never at any

time to be denied. Other gentlemen were indicted -Jonathan Dayton, Senator Smith, Comfort Tyler, Davis Floyd, Israel Smith and Harman Blennerhassett—and all but the first two arrested, but it was against Aaron Burr that the Government's utmost effort was put forward, propelled by the tireless persistence of the presidential hands.

It was the irony of circumstance, therefore, that the case should have come before John Marshall, within the jurisdiction of whose Virginia circuit the act of war alleged by the Government had taken place. John Marshall, the Federalist Chief Justice whom Mr. Jefferson so feared and hated, and who himself so despised the President. It was, on the other hand—if the protection of the individual against governmental persecution is of any import to the community-a matter of public good fortune that the cause was tried before so impartial, so wise and so fearless a judge; one whose sole concern was the preservation of the Constitution, the maintenance of Law, the recording of evidence and truth as opposed to rumor and perjury, and the solemn dispensing of Justice.

Colonel Burr was charged with misdemeanor in preparing an expedition against Mexico; and with "traitorous compassings, imaginations and intentions," in that, on December 10, 1806, at Blennerhassett's Island, he had "falsely and traitorously" joined and assembled "with a great multitude of persons . . . to the number of thirty . . and upwards, armed and arrayed in a warlike manner,' and "most wickedly, maliciously and traitorously" ordained, prepared and levied war against the

VOL. II-12

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United States. And in the presence of this document, as one stands at the door of the Eagle Tavern at Richmond, in March, 1807-and in the presence of whatever other documents it may have seemed profitable to Mr. Jefferson from time to time to compose one must never lose sight of his letter of April 2, 1807, to Mr. Bowdoin at Madrid, in which he explained that "no better proof of the good faith of the United States [towards Spain] could have been given than the vigor with which we acted. in suppressing the enterprise meditated lately by Burr against Mexico, although"-the italics are not his "at first he proposed a separation of the western country. yet he very early saw"how long had Mr. Jefferson known that "that the fidelity of the western country was not to be shaken and turned himself wholly toward Mexico. .

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How regrettable it is that this astonishing confession could not have been produced in court, during the trial of Aaron Burr for accomplished treason. How shameful it is, that such a trial should ever have taken place.

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It is not intended, in these pages, to reproduce in any detail the legal proceedings of the trial. The endless arguments of counsel, the granting and denying of motions, the examination of witnesses and all the intricacies of law involved are available in the published records, and have been examined and set forth in a number of volumes, not the least important of which is Mr. Beveridge's Life of John Marshall. It is sufficient to remember that, having

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