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 .

must be relevant." But this intention was "the intention. with which the overt act itself was committed-not a general evil disposition." This would be merely corroborative testimony, and it was "essentially repugnant to the usages of courts that corroborative or confirmatory testimony should precede that which it is to corroborate or confirm." That part of General Eaton's testimony, for instance, dealing with alleged designs upon the city of Washington was "not relevant to the present indictment." However, Mr. Hay was "at liberty to proceed according to his own judgment, and the Court feels itself bound to exclude such testimony only as at the time of its being offered does not appear to be relevant."

The prosecution was to have every latitude, every opportunity of producing its evidence, but the Chief Justice had clearly set forth the limits beyond which it might not presume to pass. That his opinion was of vital comfort to the defense was undeniable; that it was founded on the most irreproachable principles of law, in harmony with the most solemn provisions of the Constitution in the matter of treason, was equally incontestable. "Marshall faced a problem of uncommon difficulty," Mr. Beveridge points out. "It was no small matter to come between the populace and its prey-no light adventure to brave the vengeance of Thomas Jefferson. Not only his public repute perhaps even his personal safety and his official life-but also the now increas ing influence and prestige of the National Judiciary were in peril. However, he must do justice no mat ter what befell-he must, at all hazards, pronounce

the law truly and enforce it bravely, but with elastic method. He must be not only a just, but also an understanding judge."

2

When the court convened, the Government was not ready, necessitating a series of adjournments, and it was only on August 10, after Mr. Blennerhassett had been arraigned, that Colonel Burr was given access to the jury. For four days, scattered through a week of further adjournments, the examination of talesmen continued; in the midst of a brilliant running debate concerning the nature of opinions formed which might exclude individuals from service, during the course of which Mr. Martin accused the prosecution of wishing to "deprive Colonel Burr's counsel of an opportunity of defending him, that they might hang him up as soon as possible, to gratify themselves and the Government;" to which characteristic outburst Mr. Hay replied that he wished "argument to proceed without hearing [the Government attorneys] grossly insulted."

Meanwhile, juror after juror had formed an opinion of the prisoner's guilt, juror after juror had openly expressed the hope that he might be hanged. Of the first venire of forty-eight, only four were retained. Out of the second venire, none were really qualified to serve, but Colonel Burr remarked that "either . . . I am under the necessity of taking men in some degree prejudiced against me, or of having another venire. I am unwilling to submit to