General Wilkinson’s protracted absence left a void that somehow had to be filled. Mr. Hay of the prosecution was the first to try to fill it. When court met on the morning of Monday, May 25, he offered a motion that Colonel Burr be committed for treason. His contention was that new evidence had appeared since the Chief Justice refused commitment for treason earlier in the proceedings.
The defense immediately protested, Mr. Botts acting as spokesman. The motion, he declared, took them completely by surprise. It was their understanding that no such action was to be taken by either side without previous consultation. And here was the prosecution breaking the agreement. What was more, if Mr. Hay’s motion were granted it would mean taking away from the Grand Jury a task obviously its responsibility and giving it to the Chief Justice.
Here Mr. Randolph, the elder statesman, intervened to reinforce young Botts. Never, he asserted, in his thirty years of practice at the bar had he heard such an astounding proposal.
Mr. Hay explained that his purpose for making the motion was merely to get the prisoner’s bail raised. Borrowing the explanation of Burr’s friends for Wilkinson’s absence, he said that with the bail as low as it was Burr, knowing he would soon have to face Wilkinson, might be tempted to run away. He intimated that he would not put it beyond Burr to make his exit in that craven manner.
Mr. Wickham scoffed at this. Afraid that Burr would run away, indeed! What the prosecution was actually trying to do was to introduce evidence in order to ruin the character of his client before the trial had even begun.
To Wickham’s conjecture Wirt retorted: “Evidence, Sir, is the greatest corrector of prejudice. Why, then, does Aaron Burr shrink from it?”
Mr. Randolph charged that the Government had issued an order “to treat Col. Burr as an outlaw, and to ruin and destroy him and his property.” Then the Colonel himself took up the argument opposing the introduction of affidavits at this point. He called attention to the great disadvantage he, as an individual, suffered in contrast to the Government of the United States which could exercise a compulsory process to obtain them.
The strategy of the defense was making itself clear. Burr was to be portrayed as the victim of a ruthless government which denied him his civil rights and employed the military to seize his property and threaten his life. It was to charge the Jefferson Administration with brutal disregard of the dignity of the humblest citizen, whose equality before the law was Jefferson’s proudest boast.
Next day the Chief Justice presented his opinion, and it was a victory for the prosecution. The Court, he declared, had the right to commit even after the Grand Jury had been chosen. Mr. Hay’s motion was sustained and now he could proceed to present the new evidence he claimed to have on Burr’s alleged treason.
On hearing the opinion, however, Hay stated that he did not wish to present evidence at this time, provided the prisoner’s bail were raised. He proposed that counsel for both sides meet to see if an agreement could be reached. The proposal was accepted and the meeting was held, but it ended in a deadlock. Hay then proceeded to present his evidence while the defense challenged each affidavit and witness. Its objection to the Wilkinson affidavit was sustained. Peter Taylor, Blennerhassett’s gardener, and Jacob Allbright, a laborer on the island, were permitted to testify. But when the affidavit of one Sergeant Dunbaugh was offered the defense again protested.