Volume III Part 49 (2/2)
His suspicions had been ”very much excited” when Burr made his Western journey, and he had openly stated his ”uncommon anxiety” concerning ”not only the prosperity, but the union of the states.” Therefore, he had not desired to serve on the grand jury and had asked the marshal to excuse him. He had finally consented solely from his delicate sense of public duty. Also, said Nicholas, he had been threatened with the publication of one of the ”most severe pieces” against him if he served on the grand jury; and this inclined him to ”defy [his] enemies [rather] than to ask their mercy or forbearance.”
His friends had advised him not to make mention of this incident in court; but, although he was ”not scrupulous of acquiring, in this way, a reputation of scrupulous delicacy,” and had determined to heed the counsel of his friends, still, he now found himself so confused that he did not know just what he ought to do. On the whole, however, he thought he would follow the example of Senator Giles and withdraw.[1049]
At that very moment, Nicholas was a Republican candidate for Congress and, next to Giles, Jefferson's princ.i.p.al political agent in Virginia.
Four days after Burr had been brought to Richmond, Jefferson had written Nicholas a letter of fulsome flattery ”beseeching” him to return to the National House in the place of the President's son-in-law, Thomas Mann Randolph, who had determined to retire, and a.s.suring him of the Republican leaders.h.i.+p if he would do so.[1050]
Thus, for a moment, was revealed a thread of that web of intrigue and indirect influence which, throughout the trial, was woven to enmesh judge, jury, and public. Burr was instantly upon his feet denouncing in his quiet but authoritative manner the ”attempt to intimidate” Nicholas as ”a contrivance of some of [his] enemies for the purpose of irritating” the hot-blooded Republican politician ”and increasing the public prejudice against [Burr]; since it was calculated to throw suspicion on [his] cause.” Neither he nor his friends had ever ”sanctioned” such an act; they were wholly ignorant of it, and viewed it ”with indignation.”[1051]
Mr. Joseph Eggleston, another of the grand jurors, now asked to be excused because he had declared his belief of Burr's guilt; but he admitted, in answer to Marshall's questions, that he could act justly in the impending investigation. Burr said that he would not object to Eggleston: ”the industry which has been used through this country [Virginia] to prejudice my cause, leaves me very little chance, indeed, of an impartial jury.” Eggleston's ”candour ... in excepting to himself”
caused Burr to hope that he would ”endeavour to be impartial.” But let Marshall decide--Burr would be ”perfectly pa.s.sive.”[1052] The scrupulous grand juror was retained.
John Randolph and Dr. William Foushee were then added to the grand jury panel and Marshall appointed Randolph foreman.[1053] He promptly asked to be excused because of his ”strong prepossession.” ”Really,” observed Burr, ”I am afraid we shall not be able to find any man without this prepossession.” Marshall again stated ”that a man must not only have formed but declared an opinion in order to excuse him from serving on the jury.” So Randolph was sworn as foreman, the oath administered to all, and at last the grand jury was formed.[1054]
Marshall then instructed the jury, the substance of his charge being to the same effect as his opinion in the case of Bollmann and Swartwout.
Burr asked the Chief Justice also to advise the men who were to decide the question of his indictment ”as to the admissability of certain evidence” which he supposed Hay would lay before them. The District Attorney objected to any favor being shown Burr, ”who,” he declared, ”stood on the same footing with every other man charged with crime.”
For once Burr unleashed his deep but sternly repressed feeling: ”Would to G.o.d,” he cried, his voice vibrant with emotion, ”that I did stand on the same ground with every other man. This is the first time [since the military seizure] that I have been permitted to enjoy the rights of a citizen. How have I been brought hither?” Marshall checked this pa.s.sionate outburst: it was not proper, he admonished both Hay and Burr, to ”go into these digressions.”
His composure restored, Burr insisted that he should be accorded ”the same privileges and rights which belonged to every other citizen.” He would not now urge his objections to Marshall's opinion in the Bollmann-Swartwout case;[1055] but he pointed out ”the best informed juryman might be ignorant of many points ... relating to testimony, ...
for instance, as to the article of papers,” and he wished Marshall to inform the jury on these matters of law.
A brief, sharp debate sprang up, during which Burr's counsel spoke of the ”host of prejudices raised against [their] client,” taunted Hay with his admission ”that there was no man who had not formed an opinion,” and denounced ”the activity of the Government.”[1056] Upon Hay's pledging himself that he would submit no testimony to the grand jury ”without notice being first given to Colonel Burr and his counsel,” Marshall adjourned the court that the attorneys might prepare for ”further discussion.” The Government was not ready to present any testimony on either the following day or on Monday because its princ.i.p.al witness, General Wilkinson, had not arrived.
Hay now sent Jefferson his first report of the progress of the case.
Burr had steadily been making friends, and this irritated the District Attorney more than the legal difficulties before him. ”I am surprised, and afflicted, when I see how much, and by how many, this man has been patronised and supported.” Hay a.s.sured Jefferson, however, that he would ”this day move to commit him for treason.”[1057] Accordingly, he announced in the presence of the grand jury that he would again ask the court to imprison Burr on that accusation. In order, he said, that the impropriety of mentioning the subject in their presence might be made plain, Burr moved that the grand jury be withdrawn. Marshall sustained the motion; and after the grand jury had retired, Hay formally moved the court to order Burr's incarceration upon the charge of treason.[1058]
Burr's counsel, surprised and angered, loudly complained that no notice had been given them. With a great show of generosity, Hay offered to delay his motion until the next day. ”Not a moment's postponement,”
shouted Botts, his fighting nature thoroughly aroused. Hay's ”extraordinary application,” he said, was to place upon the court the functions of the grand jury. Burr wanted no delay. His dearest wish was to ”satisfy his country ... and even his prosecutors, that he is innocent.” Was ever a man so pursued? He had been made the victim of unparalleled military despotism; his legal rights had been ignored; his person and papers unlawfully seized. The public had been excited to anger. Through newspaper threats and ”popular clamor” attempts had been made to intimidate every officer of the court. Consider ”the mult.i.tude around us”--they must not be further infected ”with the poison already too plentifully infused.”
Did Hay mean to ”open the case more fully?” inquired Marshall. No, answered Hay; but Wilkinson's arrival in Virginia might be announced before he reached Richmond. Who could tell the effect on Burr of such dread tidings? The culprit might escape; he must be safely held.[1059]
”The bets were against Burr that he would abscond, should W. come to Richmond.”[1060]
If Wilkinson is so important a witness, ”why is he not here?” demanded Wickham. Everybody knew that ”a set of busy people ... are laboring to ruin” Burr. ”The press, from one end of the continent to the other, has been enlisted ... to excite prejudices” against him. Let the case be decided upon ”the evidence of sworn witnesses” instead of ”the floating rumours of the day.”
Did the Government's counsel wish that ”the mult.i.tude around us should be prejudiced by garbled evidences?” Wickham avowed that he could not understand Hay's motives, but of this he was sure--that if, thereafter, the Government wished to oppress any citizen, drag him by military force over the country, prejudice the people against him, it would ”pursue the very same course which has now been taken against colonel Burr.” The prosecution admitted that it had not enough evidence to lay before the grand jury, yet they asked to parade what they had before the court.
Why?--”to nourish and keep alive” the old prejudices now growing stale.[1061]
Wirt answered at great length. He understood Wickham's purpose, he said.
It was to ”divert the public attention from Aaron Burr,” and ”s.h.i.+ft the popular displeasure ... to another quarter.” Wickham's speech was not meant for the court, exclaimed Wirt, but for ”the people who surround us,” and so, of course, Marshall would not heed it. Burr's counsel ”would convert this judicial inquiry into a political question ...
between Thomas Jefferson and Aaron Burr.”
Not to be outdone by his gifted a.s.sociate, Hay poured forth a stream of words: ”Why does he [Burr] turn from defending himself to attack the administration?” he asked. He did not answer his own question, but Edmund Randolph did: ”An order has been given to treat colonel Burr as an outlaw, and to burn and destroy him and his property.” Jefferson, when requested, had furnished the House information;--”would to G.o.d he had stopped here, as an executive officer ought to have done!” But instead he had also p.r.o.nounced Burr guilty--an opinion calculated to affect courts, juries, the people. Wickham detailed the treatment of Burr, ”the only man in the nation whose rights are not secure from violation.”[1062]
Burr himself closed this unexpected debate, so suddenly thrust upon his counsel and himself. His speech is a model of that simple, perspicuous, and condensed statement of which he was so perfectly the master. He presented the law, and then, turning to Hay, said that two months previous the District Attorney had declared that he had enough evidence to justify the commitment, and surely he must have it now. Nearly half a year had elapsed since Jefferson had ”declared that there was a crime,”
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