At that point Editor Ritchie brought his torment to a close. As for the Chief Justice, he no doubt thought much, but he said not a word.
Professor George Tucker, Jefferson’s biographer, was present at the dinner and an eyewitness to what went on there. He made a report on what he saw, and what he did not see he said he got “from an authentic source.” According to Professor Tucker’s version, a few days after Colonel Burr had been released on bail Mr. Wickham invited him to dine with a large party, among whom was the Chief Justice, a neighbor and personal friend. But, on the morning of the dinner, realizing that there might be some impropriety in the situation, Mr. Wickham informed Judge Marshall that Colonel Burr would be among the guests.
Judge Marshall, however, being a man of delicate feeling, was afraid that if he were to withdraw at that late hour, after having accepted the invitation, he might be regarded as being unduly fastidious, and that such action might be interpreted as a censure on his friend. So he went to the dinner. “But,” testified Professor Tucker, “he had no communication whatever with Burr, sat at the opposite end of the table, and withdrew at an early hour after dinner.”
One version of the incident had it that the Chief Justice asked the opinion of his beloved wife Molly and that she advised against his going. But it was not like the judge to act contrary to her judgment. At any rate, concludes Professor Tucker, no one was more sensible of the indecorum than the Chief Justice, “but it was not an act of deliberation, but merely inconsiderate.”
As to the effect of the incident on the subject of his biography Professor Tucker remarks: “... it no doubt contributed to increase the alarm and apprehension of Mr. Jefferson, always sufficiently disposed to judge the Federal party with the same harshness that they judged him.” And well he might. Contemporary comments make it clear that then, as today, a judge dining in company with the man he is about to try and at the home of the chief lawyer for the defense is, to say the least, an inexcusable act of impropriety. As Editor Ritchie declared at the time, it is not the sort of thing that would be expected of a man of “excellent judgment, most consummate prudence, and of a deportment highly decorous and dignified.”
Chapter VI
On May 22 the Circuit Court of Appeals for the District of Virginia, before which Aaron Burr was to face the charges of treason and high misdemeanor, convened at 12:30 o’clock. But first a grand jury would have to be picked and pass on the charges. Far ahead of the hour a throng moved on the hall of the House of Delegates where the session was to be held. It was a throng composed solely of men, for a court of law in Virginia in those days was no place for a lady. Save in Virginia’s great debate on the ratification of the Constitution in the convention of 1788 Richmond had never before seen such a colorful and distinguished assemblage.
For days strangers had been descending on the city from all sides until the taverns and inns were filled to capacity. The hardier stock from the western outposts of the Commonwealth did not even try to find accommodations: they brought tents with them and camped on the low ground beside the river. Some came out of curiosity, others were there on court business. The administration’s offensive to counter the Chief Justice’s demand for witnesses to Colonel Burr’s alleged criminalities, directed by the Federal officials in the western country and spurred on by the tireless efforts of the patriotic Wilkinson, had borne results. It was estimated that persons concerned in the trial as counsel, witnesses, and in other official capacities reached a grand total of 200.
So large was the crowd in the hall that lawyers of long service at the local bar were forced out of their rightful places by officious interlopers. This was no commonplace gathering. Here and there could be distinguished men who had already made their names in history and others who later were to become famous.