Richmond. May 31. 1807.
Your letter of the 26th. inst: is before me. My reply to it would have been of an earlier date, if my time had not been completely occupied.
The trial of Burr has indeed commenced under inauspicious circumstances, and I have no doubt that its progress will be as unfavorable as its Commencement. What the issue may be, it is impossible to foretell. The delay on the part of Wilkinson, is matter of great triumph to the numerous partizans of Burr, who are Strenuous and persevering in their efforts to produce a belief, that he will never dare to attend.
Wearied and exhausted as I am, by incessant labor and application, in a State of mind unfit for either, I will not undertake to give you a detail of all the very extraordinary occurrences in this very extraordinary examination. The papers have already furnished you with Some idea of the Course that has been pursued. Burr’s conduct shews that he believes his Situation to be desperate. He takes every advantage, denies every position advanced in the prosecution, acquiesces in no decision, however Solemnly made, or frequently repeated, and while he boldly asserts his innocence, adopts every measure within his power to bar the door to an inquiry. My associates in the prosecution, and myself have determined not to present the bills until Wilkinsons arrival. If he does not come by tomorrow (two oclock) the G. jury will probably be discharged, a special Court will be called, and a day fixed, before which the General may be confidently expected.
If the whole truth comes out Burr must be convicted of treason. But how is this to be expected? Bollman has refused to accept the pardon, or rather he has said that he neither takes it nor rejects it. His object is to refuse answers to important questions, on the ground of his not being obliged to implicate himself. His evidence, if he will give it, I deem conclusive as to the treasonable design, and perfectly coincident with Eaton’s: but I am inclined to believe that he is as unprincipled as his leader.
There is one decision of the Judges (or rather of the Judge) in this Case, which will evince to Congress the propriety of making some general and effectual provision for the arrest and examination of offenders, in cases similar to that of Aaron Burr.
The affidavit of Dunbaugh has been rejected. Its materiality was ascertained in spite of every effort to prevent it. The Counsel wished to See the form of the Authentication and under that pretext run thro’ the Statement. Their Knowledge of its contents excited the most ardent opposition, and they finally prevailed. The exceptions were, first, that “B. Cenas” who is certified by the Governor of N.O. to be a justice of the Peace, does not appear to be the Same “B. Cenas” by whom the affidavit is Certified: Secondly, that “B. Cenas” does not Certify that he performed this official act within the territory of Orleans. The arguments in Support of this affidavit founded on common Sense, public good, the admission in the Supreme Court of Wilkinson’s affidavit authenticated in the Same way, a principle laid down by that Court in the Case of Bollman and Swartwout, and the decision of our Court of appeals (2 Wash 160) tho urged with great force and perspicuity, were totally unavailing. This decision is a Specimen of the doctrine against which we must fight every inch of our way. I do not say, because I do not believe that the C. Justice does wrong with his eyes open, but that his eyes are almost closed, is a position of which no man can doubt who has observed his conduct before and since this examination. I do not despair however of bringing A. Burr to justice. Every possible difficulty will be thrown in our way, but I trust that neither Energy nor patience to encounter and to Surmount them will be wanted.
Your direction as to taking down the evidence will be duly attended to.—
I am, with the highest respect yr. mo: ob. Sv.
DLC: Papers of Thomas Jefferson.