could be most effectually done. It is very possible that Mr. Burr, who is yet living, may leave some account of these transactions.

Among the witnesses called by the government against the accused was a very extraordinary man, well known and much esteemed for his exploits on the northern coast of Africa. His testimony is interesting, because it discloses his views of Colonel Burr; and because it gives some account of himself. It should be remarked, that the counsel of the accused insisted that the government's counsel ought to be required to prove, in the first instance, some overt act of levying war against the United States, according to the charge in the indictment, viz., at Blannerhasset's Island, in the Ohio river, in the month of December, 1806. This, like other suggestions, was fully argued, and it was decided to be proper first to offer such proof. The gentleman above alluded to, General William Eaton, was then called as a witness, and it was asked whether he was called to prove the overt act. It was answered that he was not, but to prove the previous intention of Burr. He was objected to, and another argument ensued; but the court decided, that evidence might be given of the intentions entertained by Burr, as these might show the character of the acts done at the island. General Eaton was thereupon sworn and examined. Commodore Truxton was also sworn and examined. The testimony of these two witnesses furnishes the best materials for judging of the real designs of Burr; but these have no longer such interest as to make it worth while to transcribe this evidence.

LETTER XLVIII.

SEPTEMBER 25, 1833.

SEVERAL other witnesses were examined to prove the acts done at Blannerhasset's Island by Colonel Burr's order, or suggestion. The sum of this evidence was, that he had directed the building

of boats and the purchase of provisions; and that three or four boats and some men with arms were at the Island about the 10th of December; that under fear of being taken by the militia, this party left the Island in their boats in the night, and went down the Ohio. It appeared that Burr had been at the Island, though not there at any time while this party were there, but was at a distance of hundreds of miles, and in another state, (Kentucky.) The counsel for the accused then moved the court, that the further examination should be arrested, inasmuch as it was proved, that Burr was not present when the overt act, (if such it was,) alleged in the indictment, took place.

This

This motion produced one of the most learned and able arguments to be found in the whole course of judicial proceedings. As much of it as is reported spreads over more than 450 pages. The Chief Justice pronounced his opinion on the 31st of August. At the commencement he says: "A degree of eloquence, seldom displayed on any occasion, has embellished a solidity of argument and a depth of research, by which the court has been greatly aided in forming the opinion which it is about to deliver." carefully prepared and elaborate opinion resulted in this: that as the counsel for the government were not understood to deny, that if the overt act be not proved by two witnesses, so as to be submitted to the jury, all other testimony must be irrelevant; because no other testimony, (as to subsequent acts,) could prove the overt act. That an assembly on Blannerhasset's Island was proved by the requisite number of witnesses, and the court might submit to the jury, whether that assemblage amounted to a "levying of war;" but the presence of the accused at that assemblage being nowhere alleged, except in the indictment, the overt act was not proved by a single witness; and, of consequence, all other testimony must be irrelevant.

After this opinion had been delivered, Mr. Hay asked time to consider what his duty further required. When the court met at a late hour in the afternoon, Mr. Hay said, he had examined the opinion (which had been handed to him in writing), and that he

must leave the case with the jury. The verdict was, "We of the jury say, that Aaron Burr is not proved to be guilty under this indictment, by any evidence submitted to us. We, therefore, find him not guilty." Burr was tried at the same court on the indictment for misdemeanor, and acquitted. At the conclusion, Colonel Burr was ordered to be committed to answer in the state of Ohio to the charge of setting on foot, and providing the means for a military expedition in that state against the territories of a foreign prince, with whom the United States were at peace. He gave bail for his appearance, and was set at liberty. Whether any prosecution in this respect occurred, it has not seemed worth while to inquire. None is remembered. In 1808, Colonel Burr was in England. He returned in 1812. He came home to dwell in a humble seclusion, and was known only as a practitioner at the bar.

Mr. Jefferson did not lose sight of Burr. In a letter to Dr. James Brown, October 27, 1808, (vol. iv. p. 115,) he says: "Burr is in London, and is giving out to his friends, that government (English) offers him two millions of dollars, the moment he can raise an ensign of rebellion, as big as a pocket handkerchief. Some of his partisans believe this, because they wish it."

The trial being over, and the law having had its fair operation on the case, it might be supposed that a Chief Magistrate of the Union would be contented with having done his duty; and that decorum towards a co-ordinate branch of the government would have prevented him from dipping his pen anew. Most extraordinary is it, that one of his own family should have given to the world the following picture of the true character of the man. (See vol. iv. p. 102.)

To George Hay.

"DEAR SIR,

"MONTICELLO, September 4, 1807.

"Yours of the 1st came to hand yesterday. The event has been," (here a number of stars are introduced, showing that something was written, which even Mr. Jefferson's editor did not

venture to disclose,) "that is to say, not only to clear Burr, but to prevent the evidence from ever going before the world. It is now, therefore, more than ever indispensable, that not a single witness be paid, or permitted to depart, until his testimony has been committed to writing, either as delivered in court, or as taken by yourself in the presence of any of Burr's counsel, who may choose to cross-examine. These whole proceedings will be laid before Congress, that they may decide, whether the defect has been in the evidence of guilt, or in the law, or in the application of the law; and that they may provide the proper remedy for the past and for the future.

"I must pray you, also, to have an authentic copy of the record made out, (without saying for what,) and to send it to me. If the judge's opinions make not a part of it, then I must ask a copy of them, either under his hand, if he delivers one signed, or duly proved by affidavit.

"This criminal is preserved to become the rallying point of all the disaffected and worthless in the United States; and to be the pivot, on which all the intrigues and conspiracies, which foreign governments may wish to disturb us with, are to turn. If he is convicted of the misdemeanor, the judge must, in decency, give us respite by some short confinement of him; but we must expect it to be very short. Be assured yourself, and communicate the same assurances to your colleagues, that your and their zeal and abilities have been displayed in this affair, to my entire satisfaction, and to your own honor."

Such is the letter which Thomas Jefferson wrote concerning the official conduct of John Marshall, Chief Justice of the United States! Is it or not the outpouring of a peculiarly organized mind, at having lost its expected victim? Is it or not a search after means to dishonor a judicial officer, perhaps to impeach and remove him, because he did not convict, on solemn public trial, with the guard of a jury, one whom Mr. Jefferson had condemned in his closet, unheard, on the testimony of his own parasites? Is such a man a fit person to conceive of the solemnity and purity

of the administration of justice, where human life is involved, and where the law declares every man to be presumed innocent until found guilty? If Mr. Jefferson could have placed Tallmadges and Halls on the bench, at his pleasure, and could have packed his juries, what would have been the fate of the "disaffected and the worthless," in this land of liberty! Whatever may be thought of Burr, and however desperately wicked any one may please to think him, it is the principle of action, disclosed in this letter, which terrifies and astonishes, considering what station he held, who wrote it. Here is one more proof that those who talk and boast most loudly of republican liberty, are the men least qualified to be trusted with power.

This trial requires some remarks. In the course of the argument, some suggestions were made, (and very possibly in consequence of the letters written to Mr. Hay by Mr. Jefferson, during the trial,) that the court might be under some bias favorable to Colonel Burr. These called for some notice on the part of the Chief Justice. He did notice them with calmness, self-respect and dignity, which deserves to be remembered forever, not only to his due honor, but as an example of judicial independence and propriety, on which, no doubt, the liberties of this country depend, Mr. Jefferson's doctrines notwithstanding.

"Much," says the Chief Justice, "has been said in the course. of the argument, on which the court feels no inclination to comment particularly, but which may, perhaps, not improperly receive some notice. That this court dares not usurp authority is most true. That this court dares not shrink from its duty is not less true. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he have no choice in the case; if there be no alternative prescribed to him, but a dereliction of duty, or the opprobrium of those denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace.

"That gentlemen, in a case the most interesting, in the zeal