Samuel Swartwout, the courier who had delivered Burr's ill-fated letter, "most positively denied" that he had made the revelations which Wilkinson claimed to have drawn from him.[1142] The youthful Swartwout as deeply impressed the grand jury with his honesty and truthfulness as Wilkinson impressed that body with his untrustworthiness and duplicity.[1143]
Peter Taylor and Jacob Allbright then recounted their experiences.[1144] And the Morgans told of Burr's visit and of their inferences from his mysterious tones of voice, glances of eye, and cryptic expressions. So it was, that in spite of overwhelming testimony of other witnesses,[1145] who swore that Burr's purposes were to settle the Washita lands and in the event of war with Spain, and only in that event, to invade Mexico, with never an intimation of any project hostile to the United States—so it was that bills of indictment for treason and for misdemeanor were, on June 24, found against Aaron Burr of New York and Harman Blennerhassett of Virginia. The indictment for treason charged that on December 13, 1806, at Blennerhassett's island in Virginia, they had levied war on the United States; and the one for misdemeanor alleged that, at the same time and place, they had set on foot an armed expedition against territory belonging to His Catholic Majesty, Charles IV of Spain.[1146]
This result of the grand jury's investigations was reached because of that body's misunderstanding of Marshall's charge and of his opinion in the Bollmann and Swartwout case.[1147]
John Randolph, as foreman of the grand jury, his nose close to the ground on the scent of the principal culprit, came into court the day after the indictment of Burr and Blennerhassett and asked for the letter from Wilkinson to Burr, referred to in Burr's cipher dispatch to Wilkinson, and now in the possession of the accused. Randolph said that, of course, the grand jury could not ask Burr to appear before them as a witness, but that they did want the letter.
Marshall declared "that the grand jury were perfectly right in the opinion." Burr said that he could not reveal a confidential communication, unless "the extremity of circumstances might impel him to such a conduct." He could not, for the moment, decide; but that "unless it were extorted from him by law" he could not even "deliberate on the proposition to deliver up any thing which had been confided to his honour."
Marshall announced that there was no "objection to the grand jury calling before them and examining any man ... who laid under an indictment." Martin agreed "there could be no objection."
The grand jury did not want Burr as a witness, said John Randolph. They asked only for the letter. If they should wish Burr's presence at all, it would be only for the purpose of identifying it. So the grand jury withdrew.[1148]
Hay was swift to tell his superior all about it, although he trembled between gratification and alarm. "If every trial were to be like that, I am doubtful whether my patience will sustain me while I am wading thro' this abyss of human depravity."
Dutifully he informed the President that he feared that "the Gr: Jury had not dismissed all their suspicions of Wilkinson," for John Randolph had asked for his cipher letter to Burr. Then he described to Jefferson the intolerable prisoner's conduct: "Burr rose immediately, & declared that no consideration, no calamity, no desperation, should induce him to betray a letter confidentially written. He could not even allow himself to deliberate on a point, where his conduct was prescribed by the clearest principles of honor &c. &c. &c."
Hay then related what Marshall and John Randolph had said, underscoring the statement that "the Gr: Jury did not want A. B. as a witness." Hay did full credit, however, to Burr's appearance of candor: "The attitude & tone assumed by Burr struck everybody. There was an appearance of honor and magnanimity which brightened the countenances of the phalanx who daily attend, for his encouragement & support."[1149]