United States v. Burr

25 F. Cas. 2 | U.S. Circuit Court for the District of Virginia | 1807

MARSHALL, Chief Justice.

I am required on the part of the attorney for the United States to commit the accused on two charges: (1) For setting on foot and providing the means for an expedition against the territories of a nation at peace with the United States. (2) For committing high treason against the United States.

On an application of this kind I certainly should not require that proof which would be necessary to convict the person to be committed, on a trial in chief; nor should I even require that which should absolutely convince my own mind of the guilt of the accused: but I ought to require, and I should require, that probable cause be shown; and I understand probable cause to be a case made out by proof furnishing good reason to believe that the crime alleged has been committed by the person charged with having committed it. I think this opinion entirely reconcilable with that quoted from Judge Blackstone. When that learned and accurate commentator says, that “if upon an inquiry it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him, otherwise he must be committed to prison or give bail,” 1 do not understand him as meaning to say that the hand of malignity may grasp any individual against whom its hate may be directed, or whom it may capriciously seize, charge him with some secret crime, and put him on the proof of his innocence. But I understand that the foundation of the proceeding must be a probable , cause to believe there is guilt; which probable cause is only to be done away in the manner stated by Blackstone. The total failure of proof on the part of the accuser would be considered by that writer as being in itself a legal manifestation of the innocence of the accused. In inquiring, therefore, into the charges exhibited against Aaron Burr, I hold -myself bound to consider how far those charges are supported by probable cause.

The first charge stands upon the testimony of General Eaton and General Wilkinson. The witness first named proves that among other projects which were more criminal, Colonel Burr meditated an expedition against the Mexican dominions of Spain. This deposition may be considered as introductory to the affidavit of General Wilkinson, and as explanatory of the objects of any military preparations which may have been made. I proceed, then, to that affidavit. To make the testimony of General Wilkinson bear on Colonel Burr, it is necessary to consider as genuine the letter stated by the former to be. as nearly as he can make it, an interpretation of one received in cypher from the latter. Exclude this letter, and nothing remains in the testimony which can in the most remote degree affect Colonel Burr. That there are to the admissibility of this part of the affidavit great and obvious objections need not be stated to those who know with how much caution proceedings in criminal cases ought to be instituted, and ‘ who know that the highest tribunal of the United States has been divided on them. When this question came before the supreme court, I felt the full force of these objections, although I did not yield to them. On weighing in my own mind the reasons for and against acting, in this stage of the business, on that part of the affidavit those in favor of doing so appeared to me to preponderate, and, as this opinion was not overruled, I hold myself still at liberty to conform to it. That the original letter, or a true copy of it accompanied by the cypher, would have been much more satisfactory, is not to be denied; but I thought, and I still think, that, upon a mere question whether the accused shall be brought to trial or not, upon an inquiry not into guilt but into probable cause, the omission of a circumstance which 4s indeed important, but which does not disprove the positive allegations of an affidavit, ought not to induce its rejection or its absolute disbelief, when the maker of the affidavit is at too great a distance to repair the fault. I could not in this stage of the prosecution absolutely discredit the affidavit, because the material facts alleged may very well be within the knowledge of the witness, although he has failed to state explicitly all the means by which this knowledge is obtained. Thus, General Wilkinson states that this letter was received from Colonel Burr, but does not say that it was in his hand-writing, nor does he state the evidence which supports this affirmation. But, in addition to the circumstance that the positive assertion of the fact ought not perhaps, in this stage of the inquiry, to be disregarded, the nature of the ease furnishes that evidence. The letter was in cypher. General Wilkinson, it is true, does not say that a cypher had been previously settled between Colonel Burr and himself, in which they might correspond on subjects whichr though innocent, neither' of them might wish to subject to the casualties of a transportation from the Atlantic to the Mississippi; but when we perceive that Colonel Burr has written in cypher, and that General Wilkinson is able to decypher the letter, we must either presume that the bearer of the letter was also the bearer of its key, or that the key was previously in possession of the person to whom the letter was addressed. In stating particularly the circumstances attending the delivery of this letter, General Wilkinson does not say that it was accompanied by the key, or that he felt any surprise at its being in cypher. For this reason, as well as because there is not much more security in sending a letter in cypher, accompanied by its key, than there is in sending a letter not in cypher, I think it more reasonable to suppose that the key was previously in possession of Wilkinson. If this was the fact, the letter being written in a cypher previously settled between himself and Colonel Burr, is, in this stage of the inquiry at least, a circumstance which sufficiently supports the assertion that the letter was written by Colonel Burr. The enterprise described in this letter is obviously a military enterprise, and must have been intended either against the United States, or against the territories of some other power on the continent, with all of whom the United States were at peace. The expressions of this letter must be admitted to furnish at least probable cause for believing that the means for the expedition were provided. In every part of it we find declarations indicating that he was providing the means for the expedition; and as these means might be provided in secret, I do not think that further testimony ought to be required to satisfy me that there is probable cause for committing the prisoner on this charge. . Since it will be entirely in the power of the attorney general to prefer an indictment against the prisoner, for any other offence which he shall think himself possessed of testimony to support, it is, in fact, immaterial whether the second charge be expressed in the warrant of commitment or not; but as I hold it to be my duty to insert every charge alleged on the part of the United States, in support of which probable cause is shown, and to insert none in support of which probable cause is not shown, I am bound to proceed in the inquiry.

The second charge exhibited against the prisoner is high treason against the United States in levying war against them. As this is the most artocious offence which can be committed against the political body, so is it the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power. It is that of which the people of America have been most jealous, and therefore, while other crimes are unnoticed, they have refused to trust the national legislature with the definition of this, but have themselves declared in their constitution that “it shall consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort.” This high crime consists of overt acts, which must be proved by two witnesses, or by the confession of the party in open court. Under the control of this constitutional regulation, I am to inquire whether the testimony laid before me furnishes probable cause in support of this charge. The charge is, that the fact itself has been committed, and the testimony to support it must furnish probable cause for believing that it has been actually committed, or it is insufficient for the puipose for which it is adduced. Upon this point, too, the testimony of General Eaton is first to be considered. That part of his deposition which bears upon this charge is the plan disclosed by the prisoner for seizing upon New Orleans,- and revolutionizing the Western states. That this plan, if consummated by over acts, would amount to treason, no man will controvert. But it is equally clear that an intention to commit treason is an offence entirely distinct from the actual commission of that crime. War can only be levied by the employment of actual force. Troops must be embodied, men must be assembled, in order to levy war. if Colonel Burr had been apprehended on making these communications to General Eaton, could it have been alleged that he had gone further than to meditate the crime? Could it have been j said that he had actually collected forces j and had actually levied war? Most certainly it could not The crime really complete ¡ was a conspiracy to commit treason, not an ' actual commission of treason. If these com- : munications were not treason at the instant they were made, no lapse of time can make . them so. They are not in- themselves acts. They may serve to explain the intention with which acts were committed, but they cannot supply those acts if they be not i proved. The next testimony Is the deposi- i tion of General Wilkinson, which consists of j the letter already noticed, and of the com- i munications made by the bearer of that let- j ter. This letter has already been consider- I ed ■ by the supreme court of the United ] States, and has been declared to import, ¡ taken by itself or in connection with Eaton's ¡ deposition, rather an expedition against Mexico than the territories of the United States. By that decision I am bound, whether I concurred in it or not. But I did concur in it. On this point the court was unanimous. It is, however, urged that the declarations of Swartwout may be connected with the letter and used against Colonel Burr. Although the confession of one man cannot criminate another, yet I am inclined to think that, on a mere inquiry into probable cause, the declaration of Swartwout made on this particular occasion may be used against' Colonel Burr. My reason for thinking so is, that Colonel Burr’s letter authorizes Mr. Swart-wout to speak in his name. He empowers Mr. Swartwout to make to General Wilkinson verbal communications explanatory of the plans and designs of Burr, which Burr adopts as his own explanations. However - inadmissible, therefore, this testimony may be on a trial in chief, I am inclined to admit it on this inquiry. If it be admitted, what is its amount? Upon this point, too, it appears that the supreme court was divided. I therefore hold myself at liberty to pursue my own opinion, which was, that the Words, •‘this territory must be revolutionized,” did not so clearly apply to a foreign territory as to reject that sense which would make them . applicable to a territory of the United States, at least so far as to admit of further inquiry into their meaning. And if a terri--tory of the United States was to be revolutionized, though only as a means for an expedition against a foreign power, the act would be treason. This reasoning leads to the conclusion that there is probable cause for the allegation that treasonable designs were entertained by the prisoner so late as July last, when this letter was written.

It remains to inquire whether there is also probable cause to believe that these designs have been ripened into the crime itself, by actually levying war against the United States. It has been already observed that, to constitute this crime, troops must be embodied, men must be actually assembled; and these are facts which cannot remain invisible. Treason may be machinated in secret, but it can be perpetrated only in open day, and In the eye of the world. Testimony of a fact which in its own nature is so notorious ought to be unequivocal. The testimony now offered has been laid before the supreme court of the United States and has been determined in the Gases of Bollman and Swartwout. [4 Cranch (8 U. S.) 75], not to furnish probable cause for the opinion that war had been actually levied. Whatever might have been the inclination of my own mind in that case, I should feel much difficulty in departing from the decision then made, unless this ease could be clearly distinguished from it. I will, however, briefly review the arguments which have been urged, and the facts now before me, in order to show more clearly the particular operation they have on my own judgment. The fact to be established is. that in pursuance of these designs, previously entertained, men have been actually assembled for the purpose of making war against the United States; and on the showing of probable cause that this fact has been committed, depends the issue of- the present inquiry. The first piece of testimony relied on to render this fact probable is the declaration of Mr. Swartwout, that ‘'Colonel Burr was levying an armed body of 7,000 men from the state of New York, and the Western states and territories, with a view to carry an expedition against the Mexican provinces." The term "levying” has been said, according to the explanation of the lexicons, to mean the embodying of troops, and therefore to prove what is required. A! though I do not suppose that Mr. Swart-wout had consulted a dictionary, I have looked into Johnson- for the term, and find its first signification to be "to raise;” its second, "to bring together.” In common parlance, it may signify the one or the other. But its sense is certainly decided by the fact. If when Mr. Swartwout left Colonel Burr, which must be supposed to have been in July, he was actually embodying men from New York to the Western states, what could veil his troops from human sight? An invisible army is not the instrument of war, and had these troops been visible, some testimony relative to them could have been adduced. I take the real sense, then, in which this term was used to be, that Colonel Burr tvas raising, or in other words engaging or enlisting, men through the country described, for the enterprise he meditated. The utmost point to which this testimony can be extended is, that it denotes a future embodying of men, which is more particularly mentioned in the letter itself, and that it affords probable cause to believe that the troops did actually embody at the period desIgnated for their assembling, which is sufficient to induce the'justice to whom the application is made to commit for trial. I shall readily avow my opinion, that the strength of the presumption arising from this testimony ought to depend greatly on the time at which the application is made. If soon after the period at which the troops were to assemble, when full time had not elapsed to ascertain the fact, these circumstances had been urged as the ground for a commitment on the charge of treason, I should have thought them entitled to great consideration. I will not deny that, in the Cases of Bollman and Swartwout. I was not perfectly satisfied that they did not warrant an inquiry into the fact. But I think every person must admit that the weight of these circumstances daily diminishes. Suspicion may deserve great attention when the means of ascertaining its real grounds are not yet possessed; but when those means are, or may have been acquired, if facts to support suspicion be not shown, every person, I think, must admit that the ministers of justice at least ought not officially to entertain it. This, I think, must be coheeded by all; but whether it be conceded by others or not, it is the dictate of my own judgment, and in the performance of my duty I can know no other guide.

The fact to be proved in this case is an act of public notoriety. It must exist in the view of the world, or it cannot exist at ail. The assembling of forces to levy war is a visible transaction, and numbers must witness it. It is therefore capable of proof; and when time to collect this proof has been given, it ought to be adduced, or suspicion becomes ground too weak to stand upon. Several months have elapsed since this fact did occur, if it ever occurred. • More than five weeks have elapsed since the opinion of the supreme court has declared the necessity of proving the fact, if it exists. Why is it not proved? To the executive government is intrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety. It would be easy, in much less time than has intervened since Colonel Burr has been alleged to have assembled his troops, to procure affidavits ■establishing the fact. If, in November or December last, a body of troops had been assembled on the Ohio, it is impossible to suppose that affidavits establishing the fact could not have been obtained by the last of March. I ought not to believe that there has been any remissness on the part of those, who prosecute on this important and interesting subject; and consequently, when at this late period no evidence that troops have been actually embodied is given. I must say that the suspicion which in the first instance might have been created ought not to be continued, unless this want of proof can be in some manner accounted for.

It is stated by the attorney for the United States that, as affidavits can only be voluntary, the difficulty of obtaining them accounts for the absence of proof. I cannot admit this position.. On the evidence furnished by .this very transaction of the attachment felt by our western for their eastern brethren, we justly felicitate ourselves. How inconsistent with this fact is the idea that no man could be found who would voluntarily depose that a body of troops had actually assembled, whose object must be understood to be hostile to the Union, and whose object was detested and defeated by the very people who could give the requisite information! I cannot doubt that means to obtain information have been taken on the part of the prosecution; if it existed, I cannot doubt the practicability of obtaining it; and its uon-produetion at this late hour does not, in my opinion, leave me at liberty to give to those suspicions which grow out of other circumstances that weight to which at an earlier day they might have been entitled. I shall not therefore insert in the commitment the charge of high treason. I repeat, that this is the less important, because it detracts nothing from the right of the attorney to prefer an indictment for high treason, should he be furnished with the necessary testimony.

The CHIEF JUSTICE having delivered his opinion, observed, that as Colonel Burr would be put on his trial for carrying on a military expedition against a nation with whom the United States were at peace, his case was of course bailable. Some discussion then arose as to the amount f bail to be required. The sum was finally fixed at ten thousand dollars; and after a brief adjournment, Colonel Burr, with five sureties entered into a recognizance in that sum, for his appearance at the next circuit court for the district of Virginia, to commence on the 22d day .of May following

NOTE.

Historical Sketch of Burr’s Western Expedition in the Year 1806.

After his-fatal duel with Hamilton, in July, 1804, Colonel Burr became a fugitive and an exile from his home, until the meeting of congress in December following. Ten days after the duel, he left New York at night, by water, landed the next morning at the residence of Commodore Truxton, in New Jersey, and thence made his way, incog., by back roads, to Philadelphia. He remained in that city until a coroner’s inquest had pronounced him guiityof murder and a warrant had been issued for his arrest. Pearing that a requisition would be made upon the govern- or of Pennsylvania by the governor of New York, for his surrendei, he secretly left Philadelphia about the middle of August, by sea, sailing for the island of St. Simons, off the coast of Georgia, where a few wealthy planters resided, among whom he had some personal friends. There he was hospitably received, and entertained for about a month. He then visited his daughter, at her home in South Carolina, where he remained until he started on his journey to Washington, to preside ovei the senate of the United States during the last session of his term as vice president. On reaching Washington, he learned that indictments for murder were pend-tag against him in two states—New York, where Hamilton died, and New Jersey, where the mortal wound wasi inflicted. No attempt was made, however, to bring him to trial on either. He was received at Washington with the consideration due to his distinguished political position: and he presided over the deliberations of the senate with a dignity, ability, and impartiality which increased his fame as an unrivalled presiding officer. It was during this session that Judge Chase, of the supreme court, was tried on articles of impeachment preferred by the house of representatives. “The impeachment created an intense interest, and the trial attracted a concourse of people to Washington.. Under the direction of the vice president, the senate chamber was fitted up in superb style, with seats and subdivisions for all the dignitaries of the nation, as well as for foreign embassadors and spectators. The senators, as judges of this high court, were placed in a grand semicircle on each side of the vice president—an awful array of judicial authority. Temporary galleries were erected and draped with blue cloth, part of which the vice president, with his usual gallantry, appropriated to the ladies. The scene presented while the trial was in progress, as described minutely in the papers of the d»y, must have been extremely striking. The trial began on the 4th of February. and ended, in a verdict of acquittal, on the 1st of March. The dignity, the grace, the fairness. the prompt, intelligent decision with which the vice president presided over the august court, extorted praise even from his enemies. ‘He conducted the trial,’ said a newspaper of the day, ‘with the dignity and impartiality of an angel, but with the rigor of a devil.’ There was a rising tide of reaction in his favor during the closing days of his public life, which, taken at the flood, might have led, if not to fortune, yet to an endurable existence among his countrymen.” Parton’s Life of Burr. On Saturday, the 2d of March, the vice president took leave of the senate in a speech which produced a profound sensation. This speech was delivered when the senate, being engaged in executive business, was sitting with closed doors, and no authentic report of it has been preserved. In an account of it published at the time in the Washington Federalist, and prepared at the editor’s request, by an unknown hand, it is said to have be.en pronounced by those who heard it. “the most dignified, sublime, and impressive that ever was uttered.” “The whole senate.” says the same writer, “were in tears, and so unmanned that it was half an hour before they could recover themselves sufficiently to come to order and choose a vice president pro tern.” Yet on retiring from the vice presidency. Colonel Burr was a bankrupt, both in political influence and pecuniary resources. If he returned to his home, it would be to encounter-indictments for murder and executions against his body for debt. He therefore determined to> seek his fortune in a new country.

During his winter’s residence in Washington, many of Colonel Burr’s friends and admirers had manifested a deep interest in his future, and had been busy devising schemes for retrieving his fortunes, and for bringing him again into political life as a representative from some new state or territory. Conspicuous among these was General Wilkinson, commander in chief of the army, and appointed, about the close of that session of congress, governor of the territory of Louisiana. Between Wilkinson and Burr a friendship of long .-tanding had subsisted. They had been fellow-soldiers in the war of the Revolution—had shared together the weary march to Quebec in the winter of 1775-76. and the perils of the unsuccessful attack on that city, in which their commander, the gallant Montgomery, fell. Though seldom meeting after the war. they had occasionally corresponded, confidentially, in cipher, of which Wilkinson was the inventor. In 1787. Wilkinson, then a citizen of that portion of Virginia which is now the state of Kentucky, having laden a boat with tobacco and flour, had descended the Ohio and Mississippi rivers to New Orleans, with the ostensible purpose of making arrangements with the Spanish authorities-by which to secure to the inhabitants of the upper country the free navigation of the Mississippi and a market for their products. Although, on landing, his cargo was seized by the authorities, he had the address to obtain its release, and such further privileges of trading in that city as induced him to establish himself in business there, carrying on a trade, principally in tobacco, from the upper country, for several years. In the year 1791, however, he resumed his military career, obtaining an appointment in the army of the United States, and being placed in the command of the western posts. He was now about to return to the Louisiana country, as governor of all that portion of it not included in the territory of Orleans, now comprising the state of Louisiana. In that direction it was natural that Colonel Burr should turn his eyes. Wilkinson was an arch intriguer, and some years before had been at the head of a party in the West who favored the separation of the Western territories from the Atlantic states. While carrying on trade in New Orleans he had been deeply implicated in an intrigue with the Spanish authorities, having for its object the separation of the district of Kentucky from the United States, and its annexation to the Spanish territory of Louisiana. Whether he really desired the accomplishment of this object, or was merely playing a game with the Spanish authorities for the advancement of.his own selfish interests, may be doubted; but the evidence that he was deeply engaged in such an intrigue is now overwhelming. If Burr at this time contemplated any illicit enterprise, looking either to a separation of the Western states and territories from the Union, or an invasion of the Spanish dominions, or both. Wilkinson was the man, of all others, to whom he would have been most likely to disclose his views, and whose co-operation he would be most likely to seek. He was ambitious, exceedingly fond of pomp and show, extravagant in his habits, poor, and addicted to intrigue. On leaving Washington, at the end of his official term. Colonel Burr went to Philadelphia, and there remained about a month. On the 10th of April he started tor Pittsburg, performing the journey on horseback in nineteen days. The next day after reachtag Pittsburg, he, with a companion, acting as his secretary, embarked for the lower country in a boat which he had previously ordered to be in readiness for that purpose. “This boat was a rude floating house, or ark, sixty feet long and fourteen wide, containing four apartments; a dining room, a kitchen, with fire-place, and two bed-rooms, all lighted by glass windows, and the whole covered by a roof, which served as a promenade deck. The cost of this commodious structure, he found to his astonishment, was only one hundred and thirty-three dollars. Of propelling power it had none, but merely floated down the swift and winding stream, aided occasionally, and kept clear of snags and sand-banks, by a dexterous use of the pole.” Parton’s Life of Burr. The Ohio river then wound its way through a wilderness just beginning to be marked by the footprints of approaching civilization. Marietta was the most considerable town on its northwestern bank, above Cincinnati, and its vicinity was the longest settled and best improved portion of the new state of Ohio. Colonel Burr landed at Marietta on the 5th of May, where he saw houses “that would be called handsome anywhere.”

Fourteen miles below Marietta is the celebrated island on which Harman Blennerhassett, an Irish gentleman of education and refinement, with his accomplished wife and two young children. then lived in a style which was regarded by the denizens of that new country as a true type of princely magnificence. This island is nearly three miles in length, and less than one-fourth of a mile in width, containing between three and four hundred acres' of very fertile land. At this time it had been the residence of Blennerhassett abo at seven years. At a cost of some fifty thousand dollars, he had subdued the wilderness, and erected on the summit of the island, near its upper end, a mansion house of commodious proportions. He had laid out and improved a capacious lawn, planted choice fruits, and embellished nis grounds with flowers and shrubbery of rare beauty. The highly-colored picture of this “Eden,’’ drawn by Mr. Wirt in his celebrated speech on the trial of Burr, does not much surpass a description given by the Hon. Charles Fenton Mercer, in a deposition which was read during the pendency of the subsequent motion to commit Burr, Blennerhassett. and Smith for trial in another district. He had visit,ed Blennerhassett m his ‘‘island home,” and spent a night and a day under his roof, shortly before he left it to follow the fortunes of Burr in his disastrous expedition. “That evening and the following day,” he says in his deposition, ,“I spent at the most elegant seat in Virginia, in the society of Mr. Blennerhassett and his lovely and accomplished lady.” Blennerhassett “was the youngest son of a distinguished family which could trace its lineage from the time of King John. His grandfather. Robert, having emigrated from Cumberland, in the time of Elizabeth, became the head of three highly respectable branches of Irish gentry.” His wife was “a Miss Agnew, daughter of the lieutenant governor of the Isle of Man,- and grand-daughter of the celebrated general of that name who fell at the battle of Germantown.” Salford’s “Blennerhas-sett Papers.” He was educated for the bar, but shortly after having attained the degree of barrister, by the death of his elder brother he succeeded to the family estates, and abandoned the pursuit of his profession. In 1796 Blenner-hassett emigrated to the United States, and two years later established himself on the island where Colonel Burr found him. He was a man of literary tastes, exceedingly fond of music and chemistry, in both of which he was quite a proficient. Supplied with an ample library, an extensive chemical apparatus, and musical instruments, and owning a few negro slaves, he was here enjoying a life of elegant ease, and dispensing a generous hospitality to all who visited his “enchanted isle.” He had. however, invested too large a proportion of his fortune (originally about $100,000) in unproductive property, which could minister only to refined tastes and luxurious habits; and he could hardly have maintained his style of living many years longer, even if he had abstained from embarking in the disastrous enterprise which precipitated his ruin. On his voyage down the river. Colonel Burr and his secretary landed on the island, with no other motive, probably, than that of strolling over the grounds. Mrs. Blennerhassett, observing them, sent a servant to invite the strangers to the house. Burr declined the invitation, sending his card. On learning the name of the distinguished visiter, the lady, in the temporary absence of her husband, came out herself to nress the invitation. Burr yielded, dined with the family, remained with them til! eleven o’clock in the evening, and then proceeded on his voyage. The host and hostess were equally captivated by their visiter. At Cincinnati, ther a town of about fifteen hundred inhabitants. Colonel Burr spent a day at the house of John Smith, a senator of the United States for the state of Ohio, and there met his friend Jonathan Dayton, an ex-senator from the state of New Jersey, both of whom were subsequently connected with his Western expedition, and were indicted with him for treason. At Louisville, Colonel Burr left his boat and proceeded on horseback to Nashville. There he was greeted with the utmost enthusiasm, public dinners, balls, and parties being given in honor of his visit.

Before leaving Washington, one of the schemes suggested for bringing Colonel Burr into public life again was the following, proposed by Matthew Lyon, a member of congress from Kentucky, which is here given in his own words: “Let Colonel Burr mount his horse on the 4th of March, and ride through Virginia to Tennessee, giving out that he intends settling in Nashville, in the practice of the law. Let him commence the practice, and fix himself a home there. His rencontre with General Hamilton will not injure him. Let him attend the courts in that district. Let him in July next intimate to some of the numerous friends his preeminent talents and suavity of manners will have made for him, that he would willingly serve the district in congress. They will set the thing on foot, and he is sure to be elected: there is no constitutional bar in the way.” This scheme, Mr. Lyon says, was suggested by him to General Wilkinson, who appeared to bo highly pleased with it. It was subsequently suggested to Burr himself: but he does not appear to have very earnestly entered into it. Colonel Burr remained four days at Nashville, and vas the guest of General Jackson, with whom he had contracted a warm friendship at Washington. On the 3d of June. he. with his secretary, embarked in an open boat to descend the Cumberland river, at the mouth of which they found their “ark,” and resumed their voyage down the Ohio. At Fort Massac, sixteen miles below the mouth of the Cumberland. he met General Wilkinson, who was on his way to the theatre of his new official duties. According to General Wilkinson’s account of this interview, the subjects of their conversations were perfectly legitimate: relating to a project for making a canal around the falls of the Ohio, to land speculatic ns, and to a scheme for getting Burr into congress. Wilkinson fitted Burr out with “an elegant barge, sails, colors, and ten oars, with a sergeant and ten able, faithful hands,” to pursue his voyage to New Orleans; and gave him letters of introduction to his friends in that city. June 25th. sixty-seven days after leaving Ph’ladelphia, the voyager landed on the levee of New Orleans. He was strongly prepossessed in favor of the place. “ ‘I hear so many pleasant things of Orleans,’he wrote to his daughter, ‘that I should certainly (if one half of them are verified on inspection) settle down there were it not for Theodosia and her boy: but these will control my fatp.’ The city then contained about nine thousand inhabitants. Three hundred seagoing vessels and six hundred river fiatboats arrived annually at its levees. Four forts, one at each anglemf the city, half a mile apart, defended the city. Two of these were regularly constructed fortresses, with fosse, glacis, and drawbridge. The two behind the city were stockades. Since the departure of the Spaniards these fortifications had been partly dismantled, but were capable, in a few weeks, of being restored to their original strength. In tSoJ the chief defence of the place was a volunteer corps of Americans and creoles, commanded by Daniel Clark, the great merchant of the city, the founder of that prodigious fortune for which his daughter, Mrs. Gaines, has so long contended in the courts. Daniel Clark had emigrated from England in 1786. and had grown in wealth with the ever-growing prosperity of the city. He had been ardent for the transfer of the province to the United States, was now the leader of the American party in New Orleans, and seemed to be a zealous friend of the Union. To him Colonel Burr presented the following letter of introduction from General Wilkinson:

“ ‘My Dear Sir: This will be delivered to yon by Colonel Burr, whose worth you know well how to estimate. If the persecutions of a great and honorable man can give title to generous attentions, he has claims to all your civilities and all your services. You cannot oblige me more than by such conduct, and I pledge my life to you it will not bt misapplied. To him I refer you for many things improper to letter, and which he will not say to any other I shall be at St. Louis in two weeks, and if you were there we could open a mine, a commercial one at least. Let me hear from you. Farewell, do well, and believe me always your friend.’

“This epistle produced the effect desired. Burr became intimate with Clark, as with all the important persons of the place. He was received everywhere as the great man! Governor Clai-born (governor of Orleans territory) gave him a grand dinner, which was attended by as distinguished a company as New Orleans could assemble. Banquet followed banquet; fste succeeded fete' ball followed ball. The French air that surrounded everything, the French manner and tone of society, were as pleasing as they were novel to the traveller. The_ days flew swiftly by. Burr staid three weeks in New Orleans. Wilkinson said in his letter of introduction, that Burr would make communications to Clark which were ‘improper to letter.’ What were they? Burr was not a person to waste three weeks in mere feasting and playing the great man Wherever he was, whatever he was, he was busy. He had the quickest, most active mind that ever animated five feet six inches, of mortality. Tt is certain that. he did something at New Orleans during those three weeks. What? The question has been answered, first, by Wilkinson in his ponderous memoirs; secondly, by Daniel Clark in his angry octavo, entitled. ‘Proofs of the Corruption of General James Wilkinson, and of his Connection with Aaron Burr1; thirdly, by Matthew L. Davis, speaking for Burr himself. Wilkinson says the reference in his letter of introduction was simply an election scheme. Clark declares that Burr confided nothing to him whatsoever. He says he liked Burr exceedingly, invited him to dinner, showed him every possible civility, but had not a syllable of confidential conversation with him. In the most positive and circumstantial manner he denies that he had then, or ever had,, any participation in or knowledge of Burr’s designs. Davis, on the contrary, asserts that Clark and Wilkinson were both ardently engaged with Burr; and that Clark agreed to advance fifty thousand dollars in furtherance of the great project. Other friends of Burr say that Clark made two voyages to Yera Cruz, to spy out the enemy’s country. Clark admits having made the voyages, (one in September, 1S05, the other in February. 1806:) admits having collected information in Mexico respecting the strength of the fortresses, the number of the garrisons, and the disposition of the people; but asserts that his voyages had none byt commercial objects, and that his inquiries were only prompted by curiosity. A witness deposed to having heard Clark say that he would willingly join in a private scheme for the conquest of Mexico, provided the adventurers could turn their backs forever on the United States. ‘You. for example, might be a duke,’ was one expression which the witness swore he had heard Clark use in the course of the same conversation. The difficulty of arriving at certainty on this subject, arises from the fact that most of the existing evidence was given after the explosion. It was amusing, says Burnet (in his ‘Notes’), to see men who before the president’s proclamation appeared had been loudest in Burr’s praises, and deepest in his schemes, making haste after that bolt had shivered the project to atoms to denounce the traitor at every corner, and running to offer their services to the governor in defence of a distracted and imperilled country.” Par-ton’s Life of Burr.

In the latter part of July Colonel Burr left New Orleans cn horseback, to return to Nashville, travelling a great portion of the way (under the direction of a guide) through an unbroken wilderness, with no better roads than mere Indian trails. He arrived at Nashville on the 6th of August, where he was again received with distinguished attention. He remained there a week, the guest of General Jackson, as on his former visit. He then made a two weeks’ tour in Kentucky, visiting Louisville, Frankfort, and Lexington, at all of which he was received and entertained with great distinction. At this time the Spaniards still claimed and held possession of the country on the eastern bank of the lower Mississippi, and about the time of Burr’s visit the ill feeling which had long prevailed towards them, among the American citizens of the Mississippi valley, had been greatly inflamed by some outrages committed by the Spanish troops on the American side. A war with Spain was confidently expected, and the impression got abroad in the West that Burr’s presence had some reference to approaching hostilities against some portion of the Spanish dominions. A military expedition against the hated "Dons” would at that time have met great favor among the Western people. From Kentucky Burr proceeded to St. Louis, where he again met General Wilkinson. It was here, according to Wilkinson’s own account, that he first began to suspect Burr “to be revolving some great project, the nature of which he did not disclose.” He represents Burr as speaking contemptuously of “the imbecility of the government,” and saying “it would moulder to pieces, die a natural death.” or words to that effect; adding “that the people of the Western country were ready for revolt.” To this Wilkinson says he recollects replying, “that if he had not profited more by his journey he had better remained at Washington or Philadelphia. For surely, said I. my friend, no person was ever more mistaken! The Western people disaffected to the government? They are bigoted to Jefferson and democracy! and the conversation dropped.” From this and other similar conversations, Wilkinson says he began to fear that Burr had .onceived some dangerous and desperate enterprise. Nevertheless, he strove to promote his election to congress, writing a letter to General Harrison, then governor of the territory of Indiana, urgently soliciting his influence to secure his return to congress from that territory. Wilkinson alleges, however, that his great anxiety to secure the election of Burr to congress arose from his fea., that he was about to embark in some dangerous enterprise, which his election to congress might induce him to abandon. In the month of October Burr left the West to return ⅛ the Eastern states. On his way he called at Blennerhassett’s island, but found neither the master nor the mistress at home. He proceeded to Washington, where he was received by the principal officials with due courtesy. He dined with the president, and conversed freely with members of the cabinet, from whom he learned that there would be no war with Spain. From Washington he went South to meet his son-in-law, Mr. Alston, and his daughter. Theo-dosia, returning in December to Philadelphia. He made this city his headquarters until he started West the following summer, living, it is said, in a style and situation more obscure than was formerly his custom. “He sought the society of men who had cause to be dissatisfied with the government, such as Commodore Truxton, who had been struck from the navy list, and General Eaton, who could not get his claim against the government paid. To these men, as to others. he spoke in contemptuous terms of the administration: he said a separation of the Western states must come sooner or later; he unfolded his plans and urged them to unite their.fortunes with his. Parton’s Life of Burr.

From Philadelphia, in the month of December, Burr wrote his first letter to Blennerhassett. If, as has been said, it was “a very innocent communication,” it was nevertheless a very artful one. After expressing his regret that the absence of Blennerhassett from home had deprived him of the pleasure of improving his personal acquaintance when visiting the island, he flatteringly alluded to his talents, as suited to a higher sphere than that in which they were then employed. He alluded to his gradually diminishing fortune, and the duty he owed to his children, who might be left destitute if he did not make-some effort to add to his present estate. This letter produced the desired effect. Blennerhassett answered it, saying that he felt that the interests of a growing family would summon him again into active life, to the resumption of his former to Burr only—Wilkinson shall dictate the rank and promotion of his officers. Burr will proceed westward 1st August, never to return: with him go his daughter—the husband will follow in October with a corps of worthies. Send forthwith an intelligent and confidential friend with whom Burr may confer. He shall return immediately with further interesting details—this is essential to concert and harmony of movement. Send a list of all persons known to Wilkinson west of the mountains, who could be useful, with a note delineating their characters. By your messenger send me four or five of the commissions of your officers, which you can borrow under any pretence you please. They shall be r⅛ turned faithfully. Already are orders to the contractor given m forward six months’ provisions to points Wilkinson may name—this shall not be used until the last moment, and then under proper injunctions: the project is brought to the point so long desired: Burr guarantees the result with his life and honor—the lives, the hon- or and fortunes of hundreds, the best blood of our country. Burr’s plan of operations is to move down rapidly from the falls on the 15th of November, with the first five hundred or one thousand men. in light boats now constructing for that purpose—to be at Natchez *between the 5th and 15th of December—then to meet Wilkinson—then to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge. On receipt of this send Burr an answer—draw on Burr for all expenses, &c. The people of the country to which we are going are prepared to receive us—their agents now with Burr say that if we will protect their religion, and will not subject them to a foreign power, that in three weeks all will be settled. The gods invite to glory and fortune—it remains to be seen whether we deserve the boon. The bearer of this goes express to you—he will hand a formal letter of introduction to you from Burr, a copy of which is hereunto subjoined. He is a man of inviolable honor and perfect discretion— formed to execute rather than project—capable of relating facts with fidelity, and incapable of relating them otherwise. He is thoroughly informed of the plans and intentions of Burr, and will disclose to yon as far as you inquire, and no further—he has imbibed a reverence for your character, and may be embarrassed in your presence—put him at ease and he will satisfy you—’29th July.”

Burr had entrusted to Dr. Bollman another copy of the same letter, in cipher, to be delivered to Wilkinson in New Orleans. After a journey of nine weeks Swartwout reached the headquarters of General Wilkinson, at Nachito-ches, his companion having previously separated from him and pursued his journey to New Orleans. Swartwout inquired for Colonel Cushing, who was second in command, and was at Wilkinson’s headquarters. To Colonel Cushing he presented a letter from Jonathan Dayton, introducing Ogden to his acquaintance, but mentioning Swartwout as Ogden’s traveling companion. Colonel Cushing introduced Swartwout to Wilkinson as the friend of Dayton. Swartwout observed that Mr. Ogden and himself, being on their way to New Orleans, had learned at Port Adams that our troops and some militia were assembling at Nachitoches, whence they were to march against the Spanish army, then in the neighborhood, and that the object of his visit was to act with them as a volunteer. While Colonel Cushing was temporarily absent from the room. Swartwout delivered to Wilkinson the packet of which he was the bearer, containing the ciphered letter hereinbefore mentioned, and a letter from Jonathan Dayton, (also in cipher,) of which the following is a copy: “Dear Sir: It is now well ascertained that you are to be displaced next session. Jefferson will affect to yield reluctantly to public sentiment, but yield he will. Prepare yonrself, therefore, for it. You know the rest. You are not a man to despair, or even despond, especially when such prospects offer in another quarter. Are you ready? Are your numerous associates ready? Wealth and glory, Louisiana and Mexico! I shall have time to receive a letter from you before I set out for Ohio. Ohio. Address me here, and another in Cincinnati. Receive and treat my nephew (Ogden) affectionately, as you would receive your friend, Dayton.”

Wilkinson, according to his own account, on reading these letters, immediately determined to draw from Swartwout all the information hw could in relation to Burr’s plans. Swartwout remained ten days at headquarters, in the course of which time Wilkinson testifies that he obtained from him the following statements: That he had been despatched by Col. Burr from Philadelphia; that he had passed through the states of Ohio and Kentucky, had proceeded from Louisville to St. Louis, where he expected to find him, (Wilkinson.) but learning that he had descended the river, had procured a skiff, hired hands, and followed him down to Fort Adams, and thence to Nachitoches, under a pretence of a disposition ⅛ take part in the campaign against the Spaniards, then depending. “That Colonel Burr, with the support of a powerful association extending from New York to New Orleans, was levying an armed body of seven thousand men, with a view to carry an expedition against the. Mexican provinces, and five hundred men under Colonel Swartwout and a Colonel or Major Tyler were to descend the Alleghany, for whose accommodation light boats had been built and were ready.” In answer to an inquiry by General Wilkinson, he said: “This territory would be revolutionized, where the people were ready to join them, and there would be some seizing, he supposed, at New Orleans—that they expected to be ready to march about the first of February, and intended to land at Vera Cruz, and- march from thence to Mexico.” Wilkinson remarked that there were several millions of dollars in bank in New Orleans, to which Swartwout replied, “We know it full well.” Wilkinson then observed, they certainly did not mean to violate private property: to which S. replied, “They merely meant to borrow, and would return it; that they must equip themselves in New Orleans; that they expected naval protection from Great Britain—that Captain - and the officers of our navy wrere so disgusted with our government that they were ready to join—that similar disgust prevailed throughout the Western country, where the people were zealous in favor of the enterprise, and that pilot-built schooners were contracted for along our Southern coast—that he had been accompanied from the falls of the Ohio to Kaskaskias. and from thence to Fort Adams, by a Mr. Ogden, who had proceeded to New Orleans, with letters from Col. Burr to his friends there.”

Whether Wilkinson, up to this time, had been as ignorant of Burr's plans as he subsequently professed to have been, and was moved by patriotic motives only to oppose them, or whether he had made up his mind that it would be more profitable to himself to betray his confederate than to betray his conntry, is a question about which those who examine the evidence on the subject will, perhaps, always differ in opinion. It is difficult to believe, however, that Burr could have been so fatally stupid as to send such a communication to a man whom he had not the strongest reason to regard as fully committed to his projects. However this may be, Wilkinson soon determined to take active measures for opposing and breaking up the expedition. Having taken this resolution, he hastened to make such terms with the Spanish commander on the Sabine as would obviate the hostilities which had been expected, and justify him in transferring the principal portion of his troops to the Mississippi. He sent forward an officer to put the city of New Orleans in the best possible condition for de-fence. and he sent a special messenger to Washington with despatches for the president. The messenger reached Washington on the 25th of November, and on the 27th President Jefferson issued a proclamation, setting forth that.uniawful enterprises »fe on foot in the Western states, having for their object a military expedition against the dominions of Spain; that for this purpose sundry citizens of the United States were fitting out and arming vessels in the Western waters, collecting provisions, arms, and military stores, and seducing honest and well meaning citizens, under various pretences, to participate in- said criminal enterprises; warning all persons engaged therein to “withdraw from the same without delay,” “as they will answer the same at their peril, and incur prosecution with all the rigors of the law;” and commanding ail officers, civil and military, to use their utmost exertions to bring the offending persons to punishment. The name of Burr was not mentioned in the proclamation.

On the 25th of November Gen. Wilkinson arrived in New Orleans. Doctor Bollman (who had previously forwarded to him, at Nachitoches, the ciphered letter entrusted to his care) called upon him the next day after his arrival. They had some conversation about Burr’s plans, Wilkinson permitting Bollman to remain under the impression that ne was connected with them. On the 5th of January. 1807, Wilkinson called on Bollman, and (the mail having arrived the day before) inquired whether he had received any intelligence from Burr. Bollman replied that he had received a letter from him of the 30th of October. in which he gave assurances that he should be in Natchez with 2.000 men on the 20th of December, where he should wait until he heard from New Orleans; that he would be followed by 4,000 men more, and if he had chosen could have raised 12,000 as easily as 6.000. but did not think that number necessary. Wilkinson then threw off his disguise, and told Bollman he should certainly oppose Burr, if he came that way. On receiving this information, Wilkinson appears to have becjme greatly alarmed. At all events, he succeeded in getting up a prodigious excitement in New Orleans. Martial law was proclaimed; public meetings were held, and harangued by Wilkinson and by Governor Clai-born. Volunteer troops offered their services, new defences were erected, and a detachment of troops was stationed above the city, with orders to stop and overhaul every descending boat. A secret session of the legislature was held; Governor Claiborn issued a proclamation: the alarm spread, and proclamations were issued by the governors of neighboring territories. The Spanish authorities became equally alarmed, and began to strengthen the defences of Mexico. On affidavits made by Gen. Wilkinson. Swartwout, Bollman, Ogden, and General Adair were arrested and immediately shipped to Baltimore. Bollman and Swartwout, on reaching Baltimore, were, by orders of the president, brought to Washington. They were taken before the circuit court of the district of Columbia, and upon the affidavits of General Wilkinson and General Eaton, and a few other unimportant affidavits forwarded by Wilkinson from New Orleans, were committed for treason. The supreme court of the United States being then in session, an application was made to it for a writ of habeas corpus. After full argument of the question whether that court had the power to issue the writ of habeas corpus ad subjiciendum, in case of a commitment by a circuit court, the writ was granted. On the return of the writ by the marshal of the district, showing that he detained the prisoners bv virtue of a commitment issued by said circuit court. Mr. Lee, counsel for the prisoners, moved their discharge. As all the evidence before the circuit court was in the form of affidavits, the record brought up all the facts. The case was elaborately argued for three days, by Caesar Rodney, attorney general of the United States, and Walter Jones, United States attorney for the District of Columbia, on behalf of the United States, and by Charles Lee. P. S. Key, and Harper, for the prisoners. Chief Justice Marshall then delivered the opinion of the court which was so often referred to on the trial of Col. Burr, and which is appended hereto. The prisoners were discharged.

To go back with our narrative: In the latter part of October, 1806, the president sent a confidential agent, named Graham, to the West, “with instructions to investigate the plots going on. to enter into conferences with the governors, and ail other officers, civil and military, and with their aid to do on the spot whatever should be necessary to discover the designs of the conspirators, arrest their means, bring their persons to punishment, and to call out the force of the country to suppress any unlawful enterprise in which it should be found they were engaged.” Graham arrived at Marietta about the middle of November. He was at this time chief clerk of the state department, but had previously been secretary of the territory of Orleans. Blenner-hnssett had received the. impression from Burr that Graham was one of the friends in New Orleans upon whom he relied, and when he met him at Marietta, believing him to be a confederate, disclosed to him important facts touching Burr’s plans and proceedings. Graham finally undeceived him as to his own relations to Burr, and believing him to be the victim of a cruel deception, endeavored to dissuade him from further connection with the enterprise, but all to no effect. The situation of things at Marietta and the island having been asertained by Graham, he proceeded to Chillicothe, where the legislature of Ohio was then sitting, and had an interview with the governor (Tiffin). The govern- or communicated with the legislature, and that body, sitting with closed doors, promptly passed an act to suppress the expedition. Under the authority of this act. the governor ordered out the militia of the vicinity, under the command of the major general of the district, to whom he gave instructions to seize the boats which had been built on the Muskingum, the stores which had been collected at Marietta, and all boats of a suspicions character descending the river.

Comfort Tyler and Ireal Smith, with four boats and about thirty men, arrived at the island, from Beaver, Pennsylvania, on the evening of the 7th of December. Of the fifteen boats contracted for on the Muskingum, eleven had been completed, and were to be delivered on the Ohio on the 10th of December. On the 9th, however, they were seized by the militia, with the provisions which had been purchased and stored at Marietta. Nearly ail the recruits who had been engaged in that vicinity had abandoned the expedition. They had agreed to join it under the belief that there was nothing unlawful, or at least nothing criminal in it. Although they had been given vaguely to understand that they might be required to fight the Spaniards, either in Mexico or neaier home, they had been led to believe that this would only be required of them in case of a war with Spam, then confidently anticipated by them. The impression had been made upon their minds that the expedition, if not having the express sanction of the general government, was at least connived at by the administration. The visit of Graham, the objects of which soon began to leak out. rumors of the secret proceedings of the Ohio legislature, and of the president’s proclamation, in advance of its arrival, had opened, their eyes. They had no idea of adhering to a cause thus denounced as unlawful and criminal. Pubh? excitement against the adventurers began to run high on both sides of the river, and Blennerhassett. finding himself abandoned by nearly all of those whom he had enlisted in the enterprise, began to despond and to waver, and would probably have abandoned it himself, but for the influence of his wife, who was a woman of superior energy. She met all the difficulties of the situation with a spirit that never quailed, and a resolution that never relaxed.

About the time of Tyler’s arrival, the Wood county (Virginia) militia were being assembled to oppose the expedition. On the same day that the boats on the Muskingum were seized, the party on the island received information that the Wood county militia was to make a descent upon them the following day. Hurried preparations were therefore made for leaving that night. It was arranged that Mrs. Blennerhassett. with her children, should remain on the island until she could obtain from Marietta a boat which had been fitted up for the special accommodation of the family. She was then to follow, with the personal effects which had been left in her care. Accordingly, a few trunks and boxes were carried on board the boats, and about midnight the little flotilla, consisting of the four boats brought down by Tyler, and one small boat added by Blennerhas-sett, cut loose from the shore and floated off. The next morning the militia arrived on the island, to find that the game had flown. The colonel left a small party in charge, and marched across the great “bend” of the river between the island and the mouth of the Great Kanawha, to intercept the boats, at that point. The distance across, by land, being but little more than half the distance round by the river, this was an easy task. He stationed a company on the bank of the river, with strict injunctions to watch all night; bur King Alcohol got the better of duty and discipline, the watchers all got gloriously drunk, and the flotilla glided by them in the darkness of the night, and pursued its voyage unchallenged. With like impunity it passed safely all the towns and villages below, although orders had been sent to all of them to arrest its progress. During the absence of the colonel on this expedition. a boat from Pittsburg touched at the mouth of the Little Kanawha, ¿bout two miles above the island, having on board fourteen young gentlemen, on their way to join the expedition among whom were Morgan Neville and William Robinson, Jr., names which have since become widely and honorably known. They were all arrested by the militia, as accomplices of Burr, and taken to the island. Three Wood county justices were sent for, and an examination was had before them, in which the prisoners, all young gentlemen of education, outwitted their accusers and the country justices, and were discharged. WThile this examination was going on, (Mrs. Blennerhassett being absent, at Marietta, in a fruitless endeavor to get possession of the “family boat,”) a wild spirit of license and riot broke out among the militiamen at the mansion house. “First of all, the men broke into the wine-cellar, and there drank themselves into vandals. Then they ranged the house, destroying or dis- ■ figuring wherever they went; firing rifle balls through pointed ceilings, tearing down costly drapery, and dashing to pieces mirrors and vases. (In 1811, the house, being built of wood, was entirely consumed by an accidental fire.) Then they rushed, like so many savages, about' the grounds, destroying the shrubbery, and breaking down trellises and arbors. The ornamental fences were torn away, piecemeal, to make fires for the sentinels at night.” Parton. In the midst of this riot and destruction. Mrs Blenner-hassett returned, without her “family boat.” the same having been denied her by the authorities. In this dilemma, the party of young men who had just been released, and were preparing to resume their journey, offered her an apartment in their boat, which she accepted, and. on the 17th of December, left her island home in possession of the rioters who had laid it desolate.

On the acquittal of Burr by the grand jury, at Frankfort, he hastened to Nashville. Graham also hastened to the same place, after rousing Ohio and Kentucky, and learning that boats for the expedition were being fitted out on the Cumberland. “An express with the president’s proclamation reached the governor of Tennessee on the 19th, and preparations were immediately made for the seizure of the boats and the arrest of the men. But timely information was conveyed to Burr, and on the 22d. with two boats and a few men. armed only according to the custom of the country, he dropped down the Cumberland. The next day Graham arrived at Nashville, to find the ‘conspirators’ beyond his reach.” At the falls of the Ohio, the party under Tyler was joined by Floyd, with three boats, and a number of men. At the mouth of the Cumberland all the different detachments met— eleven boats, with about sixty men. Here the men were drawn up in a circle on the bank of the river, and Colonel Burr addressed them briefly. He told them he had intended here to explain his designs, or his plans, but circumstances had rendered it necessary to defer doing so for the present. Here, also, Burr purchased a trading boat of one Filis, with its cargo, consisting of “bar-iron, hoes, mattocks, and a few barrels of apples.”

The principal incidents of the expedition from this point until it was broken up are thus briefly sketched by Parton: “Ignorant of Wilkinson s treachery, away went Burr with his flotilla down the Ohio, down the Mississippi, stopping boldly at forts.on the banks, asking and receiving favors. and occasionally picking up a recruit or two. He wore a smiling face, and reassured every one by the cheerful serenity of his bearing. It was not until he reached Bayou Pierre, about thirty miles above Natchez, that he hoard, of the course which had been pursued by Wilkinson, and of the prodigious excitement which his measures had created in the lower country. There, too, he read the proclamation of the governor of Mis- . sissippi, charging him and his followers with being conspirators against their country, and- calling on the officers of the government to renew their oath of fidelity to the United States, and give their best efforts towards crushing the nefarious plot. Whatever his feelings may have been at the discovery. Col. Burr never' for one moment lost his self-possession, but proceeded on the very instant to grapple with this new complication of difficulties. He wrote a public letter denying the truth of the governor’s allegations, and asserting that he had no objects but such as were lawful and honorable. ‘If.’ said he, ‘the alarm which has been excited should not be appeased by this declaration, I invite my fellow citizens to visit me at this place, and to receive from me, in person, such further explanations as may be necessary to their satisfaction, presuming that when my views are understood, they will receive the countenance of all good men.’ This letter he requested might lie rend to the militia, who were assembled for his arrest. But the excitement had risen to a height which could not be allayed by fine words. The news of Burr’s arrival at Bayou Pierre reached Nat--chez on the 14th of January, when the whole militia force of the neighborhood, who had been for weeks expecting the summons, seized their arms and hurried to the rendezvous. In a few hours two hundred and seventy-five men were ready to embark. All one cold and dismal night they worked their way up the river to a point near where the dread flotilla was moored. There disembarking, they were joined by a troop of cavalry, and were soon in readiness to march against the foe. It was thought best, however, first to ascertain if Col. Burr was disposed to resist their formidable array, or would surrender peacefully to the lawful authorities. For this purpose, George Poindexter, the attorney general of the territory, and Major Shields, of the militia, visited the flotilla, and had an interview with its commander. A letter from the acting governor was handed to Burr, who read it. and spoke with some contempt of the public alarm to which it alluded ‘As to any projects,’ said he, ‘which may have been formed between General Wilkinson and myself, heretofore, they are now completely frustrated by the perfidious conduct of Wilkinson, and the world must pronounce him a perfidious villain. If I am sacrificed, my portfolio will prove him to be such.’ He declared that so far was he from having any design hostile to the United States, he had intended to meet the governor at the general muster at Bayou Pierre. Upon the attorney general's urging him to surrender, he demanded an interview with the governor. Atter some further colloquy, the parties separated. Burr agreeing to meet Governor Mead on the following day at a designated house near by. The governor came at the time appointed. and, after meeting Burr, demanded his unconditional surrender, and that of his whole party, to the civil authorities, and gave him fifteen minutes to decide. Resistance being out of the question. Burr only requested that if Wilkinson should attempt to get possession of his person by a military force, it might be resisted. He then surrendered, and was conducted to the neighboring town of Washington, where two citizens became sureties for his appearance at court on the following day. in the sum of ten thousand dollars. His men remained in the vicinity of the flotilla. A court of justice was to Aaron Burr what his native heath was to MacGregor. On that field he was invincible. It was only after warm discussions that it was concluded that he could be lawfully tried in the territory. The next step was to get him indicted for some of-fence. A grand jury was impanneled. and witnesses sent to them. Imagine the feelings of the attorney general when he read the result of all bis toils in the following presentments:

“ 'The grand jury of the Mississippi territory, on a due investigation of the evidence brought before them, are of opinion that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this territory, or given any just cause of alarm or inquietude to the good people of the same. The grand jurors present, as a grievance, the late military expedition, unnecessarily, as they conceive, fitted out against the person and property of the said Aaron Burr, when no resistance had been made to the civil authorities. The grnnd jurors also present, as a grievance destructive of personal liberty, the late military arrests, made without warrant, and. as they conceive, without other lawful authority: and they do sincerely regret that sc much cause has been given to the enemies of our -glorious constitution to rejoice at such measures being adopted, in a neighboring territory, as, if sanctioned by the executive of our country, must sap the vitals of our political existence, and crumble this glorious fabric in the dust.’

‘‘It was of no avail for the attorney general to declare that such presentments were a disgrace and an outrage, nor for the judge to pronounce them impertinent and useless. The people were with the prisoner. Nothing approaching or re'sembling a breach of the law had been committed by him: and. in short, the grand jury had made up its mind, and would not recede from its position. His companions were at perfect liberty. A Natchez newspaper-of the time, commenting on this attempt to indict, says that ‘Burr and his men were caressed by a number of the wealthy merchants and planters of Adams county: several balls were given to them as marks of respect and confidence.’ Also, ‘that the proceedings against the accused were more like a mock trial than a criminal prosecution, and that, dnring the trial. Judge Bruin appeared more like his advocate than his impartial judge.’ All of which is extremely probable. Having, as he thought, fully complied with his recognizances. Colonel Burr demanded a legal release from the court. This was refused. Learning that farther and more arbitrary proceedings were intended against him by the government officials, and perceiving the utter hopelessness of attempting to proceed, and that his presence must embarrass, but could not assist his band, he resolved to fly. Disguising himself in the dress of a boatman, he crossed to the eastern side of the Mississippi, and disappeared in the wilderness. At the meeting of the court on the following morning, he, of course, did not present himself, and there was a great show of surprise. The governor, who, it was said, had connived at his escape, promptly offered two thousand dollars for his arrest. Two or three days passed without any tidings of the fugitive, though the surrounding country was scoured by parties in search. At length, a colored boy was seen, riding one of Burr’s horses, and wearing an overcoat that had been his. He was seized forthwith, and thoroughly searched. Sewed in the cape of the coat was found a note addressed to ‘C. T. and D. F.,’ (Comfort Tyler and Davis Floyd,) which read as follows: ‘If you are yet together, keep so, and I will join you tomorrow night. In the mean while, put all your arms in perfect order. Ask no questions of the bearer, but tell him all you may think I wish to know. He does not know that this is from' me, nor where I am.’ In consequence of this discovery. Burr's men were arrested and placed under guard, and kept as prisoners until the alarm was over. But no further trace of the chief was seen in the neighborhood. He had left the vicinity, and was making his way through a dismal wilderness, towards the port of Pensacola, where lay a British man-of-war, in which he hoped to find a temporary refuge.”

Blennerbassett. after his discharge from custody, located his family in Natchez, and. in June following, left that place on horseback' to return to his island, and look after his affairs in that vicinity. When he reached Lexington. Kentucky, he was there arrested for treason, and conveyed thence, under a guard, to Richmond. “Others of Burr’s confederates, who had the means, returned to the Eastern states, and forgot the dream of glory in the pursuit of civil life. A large number of the band remained in the territory, supplying it, as the attorney general afterwards remarked, with a superfluity of school-masters, music-masters and dancing-masters, for many years. The narrative of these events, published in all the newspapers of the land, drew public attention to the southwestern territories of the Union, and attracted (says Dr. Monette, the historian of the Valley of the Mississippi) thousands of emigrants thither from the Atlantic and Western states.”

The Counsel Engaged in the Trial of Colonel Burr.

Seldom has such an array of eminent counsel appeared together in any one case as participated in the great trial which constitutes the subject-matter of this volume.

The leader of the prosecution was George Hay, attorney of the United States for the district of Virginia; a man of fair ability, but hardly equal to the task imposed upon him. He was the son-in-law of Colonel Monroe (afterwards' president of the United States), and a zealous Democrat of the Jefferson school. He prosecuted the case with zeal, it is true, but the charge that he displayed t.n “intemperate zeal” (sometimes plainly intimated by counsel on the other side) does not appear to be justified by the reports of the trial.

Mr. Hay was ably assisted by William Wirt, then thirty-five years of age. and just rising into eminence. No other lawyer in the case, on either side, so commanded the attention and won the admiration of the throng of spectators .who attended the trial, as he. While his handsome person. graceful manners, pleasing wit. and brilliant declamation invariably captivated the bystanders, there was always solid matter enough in his arguments to attract the heaviest guns of his adversaries. It is said that he engaged in the prosecution at the personal request of President Jefferson.

The prosecution was also assisted by Alexander MacRae, “the son of a Scotch parson, who was distinguished in the Revolutionary war, first, for being himself a hot Tory, and, secondly, for being the father of seven sons, all of whom were ardent Whigs.” He is described by Par-ton as “a lawyer of respectable ability and a sharp tongue—shap> from ill-nature more than wit.” He was neither pleasing nor powerful in argument. At the time of the trial he was lieutenant governor of Virginia.

On the part of the defence, the real leader and principal tactitian was Burr himself. “No step was taken” (says Partera), “not a point conceded, without his express permission. He appeared in court attired with scrupulous neatness, in black, with powdered hair and queue. His manner was dignity itself—composed, polite, confident, impressive. He had the air of a man at perfect peace with himself, and simply intent on the business of the scene. It was observed that he never laughed at the jokes of counsel, which, at some stages cf the trial, were numerous and good.” He never lost his temper, and never, under any provocation, was betrayed into an ■offensive personal retort. He brought forward nearly every motion made on his side, and stated the grounds of it with remarkable brevity and clearness. He was equally happy in briefly summing up, at the close of a debate, and presenting in- perspicuous order the strong points brought forward in the more elaborate arguments of his counsel. He never, in the whole course of. the trial, indulged in an argument of any considerable length. ' Deep, abstruse, metaphysical reasoning was not his fort. He left all that to more competent hands.

Edmund Randolph, in point of age. experience, and position, deserves to be mentioned first, of the counsel who assisted in the defense. He was a dignified Virginia gentleman of the old school. He had been a member of the continental congress during the Revolution, attorney general and secretary of state under Washington, and governor and attorney general of his own state. He was a man of much learning and fair ability; but his powers were then rather on the wane.

Second among Burr’s counsel should be ranked John Wickham, of Richmond, in whom was combined. more than in any one else engaged in this trial, on either side, all the elements which constitute the able and accomplished barrister. He was an Englishman by birth, and “had learning, logic, wit, sarcasm, eloquence, a fine presence, and persuasive manner.”

Next should be mentioned Luther Martin, of Maryland, “who (says Parton), in the single particular of legal learning, was the-first lawyer of his day. His memory was as wonderful as his reading, so that his acquirements were at instantaneous command. Burr had become acquainted with him at Washington three years before, during the trial of Judge Chase, in whose defence he greatly distinguished himself.” ' He was coarse in his manners, ungrammatical in his language, verbose and addicted to repetitions in his style, and utterly regardless of order in the arrangement of his arguments. These defects were aggravated by an unfortunate impediment in his speech, arising from an excessive flow of saliva. Withal, he was “a mighty drinker,” and though able to carry an incredible cargo of brandy, often exhibited unmistakable signs of being over-laden. Blennerhassett says of him, in his journal: “Fancy has been as much denied to his mind as grace to his person or habits. These are gross and incapable of restraint, even on the most solemn public occasions. Hence his invectives are rather coarse than pointed, his eu-logiums moie fulsome than pathetic.” Nevertheless, he was a great and powerful man. possessing many excellent qualities of the heart as well as of the head. He entered upon the de-fence of Colonel Burr with all the zeal that the warmest personal friendship for his client, and intense political enmity to Jefferson and his administration. could inspire in his ardent and passionate nature.

Benjamin Botts, father of John Minor Botts, of the present generation, was another distinguished lawyer who took a prominent part in conducting the defence. He was the youngest of Burr’s counsel; a ready, bold, dashing man. who always charged his adversary on the “double quick,” and generally dealt effective blows.- He had great power of caricaturing the arguments of his opponent, and exposing them in a ludicrous light.

Charles Lee appeared, also, as counsel for Burr at ar, advanced stage of the trial. He was one of the most distinguished lawyers of Virginia, had at one time been attorney general of the United States, and had been counsel for Bollman and Swartwout, before the supreme court. He did not take a very active part in the trial, but the few brief addresses he made to the court were models of terse, vigorous, and compact argument.

Last, and least, was “a certain Jack Baker," who has been described as “a lame man, with a crutch; a merry fellow with plenty of ‘horse wit’ and an infectious laugh; no speaker and no lawyer. but the best of good fellows.” He just took part enough in the trial to get his name once or twice in the reports, and thereby save it from oblivion.

It is stated in Blennerhassett’s journal that all these distinguished lawyers tendered their services gratuitously to Colonel Burr. Mr. Wick-ham and Mr. Botts made a similar tender of their services to Blennerhassett.