Instantly the argument over the attachment of Wilkinson was suspended. Burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.[1168] Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ... had been impeached for perjury," or new testimony had been presented to the court.[1169] For once in his life, Martin could not answer immediately and offhand. So that night Aaron Burr slept in the common jail at Richmond.
"The cup of bitterness has been administered to him with unsparing hand," wrote Washington Irving.[1170] But he did not quail. He was released next morning upon a writ of habeas corpus;[1171] the argument on the request for the attachment of Wilkinson was resumed, and for three days counsel attacked and counter-attacked.[1172] On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the house occupied by Luther Martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men. Burr pleaded not guilty to the indictments against him, and orders were given for summoning the jury to try him.[1173]
Finally, Marshall delivered his written opinion upon the motion to attach Wilkinson. It was unimportant, and held that Wilkinson had not been shown to have influenced the judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on August 3 from Wood County, in which Blennerhassett's island was located, and where the indictment charged that the crime had been committed.[1174]
Five days before Marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of Burr, how unshakable the tenacity with which Jefferson pursued him.
On June 22, 1807, the British warship, the Leopard, halted the American frigate, the Chesapeake, as the latter was putting out to sea from Norfolk. The British officers demanded of Commodore James Barron to search the American ship for British deserters and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. The Chesapeake had not been fitted out, was unable to reply, and finally was forced to strike her colors. The British officers then came on board and seized the men they claimed as deserters, all but one of whom were American-born citizens.[1175]
The whole country, except New England, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. Quickly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,[1176] committed by a foreign power in American waters, weaken for a moment the President's determination to punish the native disturber of our domestic felicity.
The news of the Chesapeake outrage arrived at Richmond on June 25, and John Randolph supposed that, of course, Jefferson would immediately call Congress in special session.[1177] The President did nothing of the kind. Wilkinson, as Commander of the Army, advised him against armed retaliation. The "late outrage by the British," wrote the General, "has produced ... a degree of Emotion bordering on rage—I revere the Honourable impulse but fear its Effects—... The present is no moment for precipitancy or a stretch of power—on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage—... The efforts made here [Richmond] by a band of depraved Citizens, in conjunction with an audacious phalanx of insolent exotics, to save Burr, will have an ultimate good Effect, for the national Character of the Ancient dominion is in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within."
Wilkinson tells Jefferson that he is coming to Washington forthwith to pay his "respects," and concludes: "You are doubtless well advised of proceedings here in the case of Burr—to me they are incomprehensible as I am no Jurist—The Grand Jury actually made an attempt to present me for Misprision of Treason—... I feel myself between 'Scylla and Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr & his Conspirators for performing it—"[1178]
Not until five weeks after the Chesapeake affair did the President call Congress to convene in special session on October 26—more than four months after the occurrence of the crisis it was summoned to consider.[1179] But in the meantime Jefferson had sent a messenger to advise the American Minister in London to tell the British Government what had happened, and to demand a disavowal and an apology.
Meanwhile, the Administration vigorously pushed the prosecution of the imprisoned "traitor" at Richmond.[1180] Hay was dissatisfied that Burr should remain in Martin's house, even under guard and with windows barred and door locked; and he obtained from the Executive Council of Virginia a tender to the court of "apartments on the third floor" of the State Penitentiary for the incarceration of the prisoner. Burr's counsel strenuously objected, but Marshall ordered that he be confined there until August 2, at which time he should be returned to the barred and padlocked room in Martin's house.[1181]