The impossibility of returning to the island was but one warning; another came from Senator Smith, who dreaded exposure. The letter he sent by Peter Taylor, dated October 23, affected ignorance of Burr’s schemes, and demanded an explanation of them. October 26 Burr sent the required disavowal:—
“I was greatly surprised and really hurt,” said Burr,[189] “by the unusual tenor of your letter of the 23d, and I hasten to reply to it, as well for your satisfaction as my own. If there exists any design to separate the Western from the Eastern States, I am totally ignorant of it. I never harbored or expressed any such intention to any one, nor did any person ever intimate such design to me.”
From that moment to the last day of his life Burr persisted in this assertion, coupling it always in his own mind with a peculiar reservation. What he so solemnly denied was the intention to separate the Western States “by force” from the Eastern; what he never denied was the plan of establishing a Western empire by consent.
Of disunion Burr never again dared to speak. On that subject he was conscious of having already said so much as to make his stay in Kentucky a matter of some risk. The leading Republicans would have rejoiced at his departure; but to desert him was more than their tempers would allow. Daveiss saw another opportunity to compromise his enemies, and used it. A week after Blennerhassett and Peter Taylor left Lexington, carrying with them Burr’s letter in reply to Senator Smith, on the same day when Andrew Jackson at Nashville received Burr’s order, with Kentucky bank-notes for the sum of three thousand dollars, the United States District Court opened its session at Frankfort. Within eight and forty hours, November 5, District-Attorney Daveiss rose in court and made complaint against Burr for violating the laws of the United States by setting on foot a military expedition against Mexico. Besides an affidavit to this effect, the district-attorney asserted in court that Burr’s scheme extended to a revolution of all the Western States and Territories.
In the nervous condition of Kentucky society, this attack on Burr roused great attention and hot criticism. The judge who presided over the court was the same Harry Innis who had been privy to the Spanish conspiracy, and was harassed by the charges of the “Western World.” Daveiss could count with certainty upon the course which a man so placed would follow. The judge took three days to reflect, and then denied the motion; but Burr could not afford to rest silent. November 8, when Judge Innis overruled the motion and denied the process, Burr appeared in court and challenged inquiry. The following Wednesday, November 12, was fixed for the investigation. A grand-jury was summoned. Burr appeared, surrounded by friends, with Henry Clay for counsel, and with strong popular sympathy in his favor. Daveiss too appeared, with a list of witnesses summoned; but the chief witness was absent in Indiana, and Daveiss asked a postponement. The jury was discharged; and after a dignified and grave harangue from the accused, Burr left the court in triumph.[190] On the strength of this acquittal he ventured again to appear in Cincinnati, November 23, in confidential relations with Senator Smith; but the term of his long impunity was soon to end.
October 22, while Burr was at Lexington, President Jefferson held a Cabinet council at Washington. The Spaniards were then threatening an attack upon Louisiana, while Wilkinson’s force in the Mississippi and Orleans Territories amounted only to ten hundred and eighty-one men, with two gunboats. Memoranda, written at the time by Jefferson, detailed the situation as it was understood by the Government:[191]—
“During the last session of Congress, Colonel Burr who was here, finding no hope of being employed in any department of the government, opened himself confidentially to some persons on whom he thought he could rely, on a scheme of separating the Western from the Atlantic States, and erecting the former into an independent confederacy. He had before made a tour of those States, which had excited suspicions, as every motion does of such a Catilinarian character. Of his having made this proposition here we have information from General Eaton through Mr. Ely and Mr. Granger. He went off this spring to the Western country. Of his movements on his way, information has come to the Secretary of State and myself from John Nicholson and Mr. Williams of the State of New York, respecting a Mr. Tyler; Colonel Morgan, Nevill, and Roberts, near Pittsburg; and to other citizens through other channels and the newspapers. We are of opinion unanimously that confidential letters be written to the Governors of Ohio, Indiana, Mississippi, and New Orleans; to the district-attorney of Kentucky, of Tennessee, of Louisiana, to have him strictly watched, and on his committing any overt act, to have him arrested and tried for treason, misdemeanor, or whatever other offence the act may amount to; and in like manner to arrest and try any of his followers committing acts against the laws. We think it proper also to order some of the gunboats up to Fort Adams to stop by force any passage of suspicious persons going down in force. General Wilkinson being expressly declared by Burr to Eaton to be engaged with him in this design as his lieutenant, or first in command, and suspicions of infidelity in Wilkinson being now become very general, a question is proposed what is proper to be done as to him on this account, as well as for his disobedience of orders received by him June 11 at St. Louis to descend with all practical despatch to New Orleans to mark out the site of certain defensive works there, and then repair to take command at Natchitoches, on which business he did not leave St. Louis till September. Consideration adjourned.
“October 24. It is agreed unanimously to call for Captain Preble and Decatur to repair to New Orleans, by land or by sea as they please, there to take command of the force on the water, and that the ‘Argus’ and two gunboats from New York, three from Norfolk, and two from Charleston shall be ordered there, if on a consultation between Mr. Gallatin and Mr. Smith the appropriations shall be found to enable us; that Preble shall, on consultation with Governor Claiborne, have great discretionary powers; that Graham shall be sent through Kentucky on Burr’s trail, with discretionary powers to consult confidentially with the Governors to arrest Burr if he has made himself liable. He is to have a commission of Governor of [Upper] Louisiana, and Dr. Browne is to be removed. Letters are to be written by post to Governor Claiborne, the Governor of Mississippi, and Colonel Freeman to be on their guard against any surprise of our posts or vessels by him. The question as to General Wilkinson postponed till Preble’s departure, for future information.”
Although these measures provided no protection against the chance of Wilkinson’s misconduct, they could not fail to put an instant stop to Burr’s activity. All that remained was to carry them out. Unfortunately Gallatin found that his hands and those of Robert Smith were tied by Acts of Congress. The next day the Cabinet met again.
“October 25. A mail arrived yesterday from the westward, and not one word is heard from that quarter of any movements by Colonel Burr. This total silence of the officers of the government, of the members of Congress, of the newspapers, proves he is committing no overt act against law. We therefore rescind the determination to send Preble, Decatur, the ‘Argus,’ or the gunboats, and instead of them to send off the marines which are here to reinforce, or take place of, the garrison at New Orleans, with a view to Spanish operations; and instead of writing to the Governors, etc., we send Graham on that route, with confidential authority to inquire into Burr’s movements, put the Governors, etc., on their guard, to provide for his arrest if necessary, and to take on himself the government of [Upper] Louisiana. Letters are still to be written to Claiborne, Freeman, and the Governor of Mississippi to be on their guard.”