Burr, according to those present, on hearing the indictment read, displayed no emotion. He accepted the action of the Grand Jury as calmly as he had accepted all his misfortunes. There seems to have been no justification for the statement in one of the local papers next day that the prisoner was thrown into a state of consternation and dismay. Such behavior would have been so out of keeping with the man’s character that the report can be safely attributed to Republican propaganda.
After the Grand Jury had withdrawn, Judge Marshall announced that he was now under the necessity of committing Burr. So, late in the afternoon, the former Vice-President of the United States had to undergo the humiliation of being conducted by the marshal through a concourse of hundreds of curious people to the city jail, notorious for its filth and vermin. There for the night he shared a room with a man and woman and was in close proximity to the other prisoners.
Next day the Grand Jury indicted for treason and misdemeanor ex-Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler, Israel Smith, and Davis Floyd.
Dayton went out of office on the same day Burr ceased to be Vice-President. After that they were known to be closely associated. Some people believed that the treasonable projects on which they were supposed to be engaged were as much the handiwork of Dayton as of Burr. It was Dayton’s nephew, Peter Ogden, who carried a letter to Wilkinson along with Samuel Swartwout who carried the letter from Burr.
Senator Smith had been suspected of being engaged in the plot from the time Burr stopped with him at Cincinnati in the summer of 1805. When invited by the Kentucky Grand Jury to testify to the charges brought by Daveiss he had discreetly disappeared.
Comfort Tyler, Israel Smith, and Davis Floyd were minor leaders of the expedition. Tyler, who came from Onandaga, New York, had served with Burr in the New York Assembly and there fell under his spell. Israel Smith also was a New Yorker and Davis Floyd was from Indiana Territory. They were no doubt indicted because they were present on Blennerhassett Island and took part in any overt act which might have taken place there and on the proof of which the charge of treason depended.
Burr’s first thought was for his daughter Theodosia. She must be spared anxiety and mortification. From his cell in jail he penned her a hurried letter in which he gave no inkling of his disgusting surroundings. The indictment for treason, he explained, was founded on the allegation that Col. Comfort Tyler, with 20 or 30 men, had stopped at Blennerhassett Island on the way down the Ohio and “... that though these men were not armed, and had no military array or organization, and though they did neither use force nor threaten it, yet having set out with a view of taking temporary possession of New Orleans on their way to Mexico, that such intent was treasonable, and therefore a war was levied on Blennerhassett Island by construction.”
The Colonel went on to say that though he was at that time in Frankfort, Kentucky, on his way to Tennessee, nevertheless, having advised the measure, he was by construction of law present at the island and levied war there. “In fact the indictment charges that Aaron Burr was on that day present at the island, though not a man of the jury supposed this to be true.”
Of the 50 witnesses who were examined by the Grand Jury, said Burr, “it may be safely alleged that 30 at least have been perjured.” He closed his letter with a characteristically stoical injunction: “I beg and expect it of you that you will conduct yourself as becomes my daughter, and that you manifest no signs of weakness or alarm.” Was he thinking of that long line of Puritan ancestors stretching back through New England to the old England? He need have no concern on the score of Theodosia’s behavior. A word from her father was the equivalent of a command. She had never failed him yet.
After Burr had spent two uncomfortable nights in the city jail his counsel complained bitterly to the Chief Justice. They warned that the unsanitary conditions in the jail would break down his health. The lack of privacy, they claimed, would interfere seriously with the consultations with his lawyers and impair his defense. Moved by these appeals, Judge Marshall consented that the prisoner should occupy a room in a house which had been rented by Luther Martin across the street from the Swan Tavern. Consent was given on condition that suitable shutters and door fastenings be installed to insure the security of the prisoner and that a guard of seven men be kept constantly on duty.