Shout treason

by Francis F. Beirne

At the outbreak of the Revolution, leaving William and Mary College, where he had been an apt student of the law, Randolph through his breeding and ability gravitated to the staff of General Washington. His military service was brief. It soon was apparent that, like Jefferson, his talents were better suited to matters of state than to the battlefield. From the age of 20 he was not out of office during the succeeding 32 years. He served as mayor of Williamsburg, Attorney General of Virginia, member of the Continental Congress, Governor of his state, member of the Constitutional Convention, and Attorney General of the United States in Washington’s Cabinet. Now in the twilight of his career, he was present to add dignity to the defense. As a staunch Federalist he considered it no more than his duty to lend his talents to thwarting the Jeffersonians in their determination to convict Burr.

Ten years junior to Edmund Randolph was his colleague John Wickham. Wickham was something of an outsider to Virginia. Born on Long Island in the colony of New York, the son of Tories, he was educated in France for a military career. He returned home at the outbreak of the Revolution just in time to be arrested by the American patriots, but he was released in the care of a Virginia uncle. At the close of that conflict he gave up the idea of a military career and read law. Now, at the age of 44 years, he was the recognized leader of the Virginia bar.

Hay had measured swords with Wickham in the Richmond courts enough times to recognize that he lacked Wickham’s skill and dexterity. Wickham’s years abroad had endowed him with a sophistication unknown to the average Virginia squire or merchant who traveled little beyond the local frontiers. Tom Moore, the supercilious young Irish poet who paid this country a critical visit at the turn of the century and abused almost everybody from the President down, made an exception of Wickham. He said he was the only gentleman he had discovered during his American travels and that he would grace any court.

Yet in this galaxy of talent the Chief Justice was as usual the dominating figure. His commanding height marked him out. His ruddy, weather-beaten complexion setting off his fine dark eyes, his genial expression suggesting a quiet sense of humor, his obvious indifference to dress, and his loose-jointed awkwardness, all these combined to make a pleasing impression of naturalness and sincerity. He and Colonel Burr were not strangers. They had known each other in Washington when Burr was in the Senate and Marshall in the House. Marshall, too, when Chief Justice, had appeared both as spectator and witness at the Chase trial.

The proceedings at the tavern were brief. Hay had objected to the locale in the first place—it was the strategy of the prosecution to keep popular emotion high by putting on a public spectacle. He consented to the meeting in the tavern only on condition that, if arguments were needed, they would be heard at the Courthouse behind the Capitol.

It was the not unwelcome task of Nicholas Perkins to give a dramatic account of the detection of Colonel Burr under his disguise, his arrest, and the long and tedious journey from Alabama to Richmond. He spoke his piece with evident relish. When he had finished Hay submitted a motion in writing that the prisoner be committed on the charges both of treason and high misdemeanor. Counsel agreed that argument would be necessary. Hay then moved adjournment to the Courthouse and the motion was granted. The Chief Justice released Colonel Burr on bail at $2,500 for his appearance there at 10 A.M. on the morrow. Until then he was free to go about the town as he pleased.

When, next day, at the appointed hour the Chief Justice took his seat on the bench, the courtroom was filled to overflowing while a large crowd outside clamored for admission. It was a half hour after the time set for the hearing when Colonel Burr at last arrived. He apologized for keeping the Court waiting, explaining that he had misapprehended the hour.

Rather than disappoint those who could not find a place in the courtroom, the Chief Justice consented to move the hearing to the great hall of the House of Delegates in the Capitol nearby. This was a shabby chamber, unimpressive except for its size; it could accommodate a large crowd and, before the trial was over, all its space was going to be needed.

It may be imagined that Colonel Burr observed with a critical eye the drabness of the setting. Had he been in charge of the arrangements, as in the trial of Justice Chase, surely he would have ordered things differently. Colored hangings would have cheered up the premises no end and perhaps even some artistic embellishment could have been thought up for the plain sand boxes distributed around the hall at intervals for the convenience of the tobacco chewers. In this austere atmosphere all the proceedings of the trial thereafter were to take place. It was notorious that counsel on both sides, like actors in a play, addressed their remarks to the audience as much as they did to the bench.

Virginia was a big state with a variety of people. Since the crimes with which Colonel Burr was charged were alleged to have taken place on the western frontier, that territory was well represented both with respect to witnesses and spectators. So it was that in the trial room dignified gentlemen with hair powdered in the old style, and dressed in fine ruffled linen, black silk and knee breeches, rubbed shoulders with long-haired frontiersmen in leather hunting shirts and pantaloons.