Eaton said Burr had given him nothing on paper, nor did he know of anybody to whom Burr had made similar advances. It was, therefore, his word against Burr’s. He did not dare place his testimony in the balance against the weight of Burr’s character, fearing that Burr would turn the tables on him. He was therefore uncertain which way to proceed. He at last decided that the best way to save the country was to get Burr out of it. That was why he approached President Jefferson with a suggestion that Burr be sent abroad as an ambassador. He mentioned Paris, London, or Madrid. The President, according to Eaton, signified that the trust was too important and expressed something like doubt about the integrity of Burr.
Perceiving that the subject was distasteful to the President, said Eaton, and to impress him with the danger, he told him there would be insurrection in the Mississippi area within eighteen months. He quoted the President as replying that he had too much confidence in the integrity and attachment to the Union of the citizens of that country to admit any apprehension of that kind. Such, in substance, was Eaton’s affidavit.
Mr. Wickham was the first lawyer of the defense to open the attack on it. There was, he declared, no evidence of treason in it. As for an attack on the Spanish settlement, if Burr had such an intention it was not only innocent but meritorious. He reminded the court that at that time there were strong circumstances pointing to a war with Spain and he cited the President’s message at the opening of the Ninth Congress in December, 1805, in which the provocations were mentioned.
Wickham was followed by his colleague Randolph who, in a reminiscent mood, stated that though he had long been conversant with criminal jurisprudence, never before had he heard of anybody attempting to prove an overt act of treason from a supposed intention.
Colonel Burr now made clear his intention to act as his own counsel in the trial. Addressing the court he ventured the opinion that there was no cause for all this concern. He charged that Wilkinson had alarmed the President and that the President had alarmed the people. When he, Burr, heard that charges were being preferred against him while he was in the West, had he not voluntarily hastened to meet investigation both in Kentucky and Tennessee? Yes, he had fled later, but only after he had learned that military orders had been issued to seize his person and his property. He protested that there was no proof of his guilt other than the affidavits of Wilkinson and Eaton. As for these they were “abounding in crudities and absurdities.”
Attorney General Rodney next addressed the court. He had, he said, looked upon Colonel Burr as his friend and, in fact, had received him in his house. But now the chain of circumstances showed without doubt that he was guilty. He thought that the evidence presented was sufficient for commitment. It was his contention that for a mere commitment no such complete testimony was needed as in an actual trial. This brief comment from the Attorney General proved to be the last words he was to utter in the case. In a day’s time illness in his family—or such was the excuse given—took him from Richmond and the trial and he did not return. Whatever part he played in it was performed in Washington.
Thereafter the burden of the prosecution fell on the conscientious and hard-working Hay. The District Attorney, too, had had family sorrow. A week before Burr’s arrival in Richmond he lost his wife, Rebecca, a young woman of 25 years. But the bereaved husband had little time for mourning. Nor did he allow his grief to interfere with the performance of his official task with all the effectiveness his limited talents could command.
When the arguments were over Judge Marshall introduced a procedure he was to follow steadfastly throughout the trial. He adjourned court and promised that he would deliver his opinion the following day. He was as good as his word. The opinion was in writing. He had had the evening before in which to review the arguments and from them arrive at his own conclusions. Like all his opinions, this one was closely reasoned and carefully drawn. Nobody was going to be given grounds for charging him with such arbitrary and high-handed behavior on the bench as had brought about the impeachment of Justice Chase. Again a numerous audience was on hand to hear what the Chief Justice had to say.
Judge Marshall quoted Blackstone to the effect that only if it was manifest that no crime had been committed or that the suspicion was wholly groundless would it be lawful to discharge a prisoner. Otherwise he must be committed to prison or released on bail. By that, he continued, he did not mean to say that the “hand of malignity may grasp any individual against whom its hate may be directed.” His audience pricked up their ears, especially those who were anxious to catch the Chief Justice in a false step. Was not the hand of malignity to which he referred that of President Jefferson? It sounded suspiciously like it. One man who put that interpretation on it informed the Chief Justice who, immediately after adjournment, called to the bench those who were reporting the trial and stated explicitly that the observation had no allusion to the Government’s conduct in the case before him.
The Chief Justice’s conclusion was that enough evidence had been presented to warrant a commitment for a high misdemeanor. But a commitment for treason was a different matter. He pointed out that the assembling of forces to levy war was a visible transaction. Numbers must witness it. If, therefore, in November or December last a body of troops had been assembled in Ohio, it was impossible to suppose that affidavits establishing the fact could not have been obtained by the last of March. The evidence that had been given proved the loyalty of the western people to their eastern brethren. How strange then that no man could be found who would voluntarily depose that a body of troops had actually assembled for an object which had been detested by these people. He concluded: “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 non-production, at this late hour, does not, in my opinion, leave me at liberty to give to those suspicions which grow out of other circumstances, the 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.”