Bibliography 286
Index 289
[Illustration: AARON BURR
_From an original drawing from nature, by Saint-Mémin_]
SHOUT
TREASON
_The Trial of
Aaron Burr_
by Francis F. Beirne
HASTINGS HOUSE · PUBLISHERS
_NEW YORK_
COPYRIGHT © 1959 by HASTINGS HOUSE, PUBLISHERS, INC.
All rights reserved. No part of this book
may be reproduced without
written permission of the publisher.
Published simultaneously in Canada by
S. J. Reginald Saunders, Publishers, Toronto 2B.
Library of Congress Catalog Card Number: 59-13552
_Printed in the United States of America_
_Acknowledgments_
The story of Aaron Burr has been treated exhaustively by many writers
in many ways. Oddly enough, aside from the stenographic report of the
proceedings and a small volume which appeared nearly a century ago,
there seems to have been no work dealing alone with the subject of
Burr’s trial in Richmond, Virginia, in the spring and summer of 1807,
on charges of treason against the United States and high misdemeanor.
Yet this marked the climax of Burr’s public career and the presence of
a former Vice-President of the United States as the accused, charged
with such serious crimes, of the Chief Justice of the United States on
the bench, and of distinguished leaders of the bar represented both in
the prosecution and defense made this the most dramatic case in the
history of American jurisprudence.
It is true there is likely to be no better account of the trial than
that of Albert J. Beveridge, on whom this author has leaned heavily
in feeling his way through legal technicalities and to whom he makes
grateful acknowledgment. This scholarly treatment, however, is buried
in the middle of Senator Beveridge’s life of John Marshall where
it cannot attract the attention it deserves from a larger audience
both because of the trial’s historical importance and its human and
spectacular qualities. It was with the idea of reaching the general
reader that this work, striving for historical accuracy but relieved of
confusing technicalities, was undertaken.
For valuable assistance in its preparation thanks are due the staffs of
the Virginia Historical Society and the Valentine Museum, of Richmond;
of the Enoch Pratt Free Library, the Peabody Library and the Maryland
Historical Society, of Baltimore; and of the manuscript room of the
Library of Congress. I am indebted to my wife, Rosamond Randall Beirne,
for her patience and encouragement over the years the work was in
progress and for the many hours of research she devoted to it; and
to my sister, Lisa Beirne Leake, who made available her library rich
in material on old Richmond. Mention should be made of the courtesy
of Mr. John S. Stanley, former president of the Maryland State Bar
Association, and of Mr. Douglas H. Gordon, also of that Association, in
providing copies of their papers respectively on Luther Martin and John
Marshall; and of Mr. Henry G. Alsberg, chief editor of Hastings House,
for revealing notes on General Wilkinson.
For answering specific questions thanks are due Judge Brockenbrough
Lamb, of the Chancery Court of Richmond, Mr. Arthur W. Machen Jr.,
of the Maryland Bar, and Mr. Walkley E. Johnson, Clerk of the United
States Court for the Eastern District of Virginia. The last named
gentlemen, however, did not see the manuscript and are not responsible
for any technical errors that may appear in it.
FRANCIS F. BEIRNE
SHOUT TREASON
_The Trial of Aaron Burr_
_Prologue_
In his _Critical and Historical Essays_ Lord Macaulay has left to
posterity a vivid account of the opening of the impeachment proceedings
against Warren Hastings, late Governor-General of India, before the
House of Lords, for high crimes and misdemeanors allegedly committed
during his incumbency.
The event took place on February 13, 1788. The scene was Westminster
Hall, London, where thirty kings had been crowned and where Charles I
faced his accusers. Macaulay tells us that the avenues were lined with
grenadiers and kept clear by cavalry, for a great throng had assembled
to view the spectacle.
Some 170 Lords, robed in gold and ermine, and marshaled by heralds
under Garter King-at-Arms, marched in solemn order from their House
to the tribunal. In the procession also were the judges in their
vestments of state. Bringing up the rear were the Duke of Norfolk, the
Earl Marshal, the brothers and sons of King George III, and, last of
all, the Prince of Wales, “conspicuous for his fine person and noble
bearing.”
The gray walls of the ancient building, says Macaulay, were hung
with scarlet. Benches draped in red were provided for the Peers, and
benches draped in green for the Commons. Seated in the galleries were
the Queen, surrounded by the “fair-haired daughters of Brunswick,” the
ambassadors and ministers of great countries, and such distinguished
personages as Mrs. Siddons, the actress and beauty, Sir Joshua
Reynolds, the artist, Georgiana Duchess of Devonshire, and other women
of brilliance and fashion.
There, too, were the Managers, the great orators of the day--Edmund
Burke, Charles James Fox, Richard Brinsley Sheridan, William Windham,
and Charles Earl Grey. They were to conduct the prosecution.
There, too, in all his injured dignity was the man who was responsible
for this glamorous exhibition of justice. Nearly eight years were to
pass before the tedious performance came to a close and Warren Hastings
went forth a free and vindicated man.
Meanwhile the world looked on at the drama. Not the least interested
spectators were members of the bench and bar of the new nation across
the sea. It had lately won its independence, but none the less,
especially where the law was concerned, it clung to the tradition of
its mother country.
Our ancestors brought English law with them when they founded the
American colonies. During the colonial period those young men who could
afford it journeyed to London to study the law at the Inns of Court.
No revolution of a few years’ duration could sever this stout line of
descent. No greater compliment could be paid an American lawyer than
to remark that he was capable of holding his own with the best in the
spirited forensic encounters in Westminster.
It was only natural that our American bar, reveling in the Hastings
episode, should yearn to put on a similar show. It was inevitable that
an opportunity would arrive.
It first presented itself in the case of Samuel Chase, a justice of
the Supreme Court of the United States and an ardent and outspoken
Federalist who did not hesitate to express his low opinion of Thomas
Jefferson’s Republican administration even from the bench. The
Republican leaders in Congress took up the challenge. In eight articles
members of the House compressed all the complaints of his conduct that
had been made since his appointment eight years before and laid the
charges before the Senate of the United States.
On February 4, 1805, the Senate, sitting as a Court of Impeachments,
convened to hear the case. Mark the influence of the trial of Warren
Hastings. The Senate Chamber was remodeled for the occasion. In the
center of the scene was the chair of the President of the Court--in
this case the Vice-President of the United States. To his right and
left were two rows of benches with desks, the whole covered with
crimson cloth, like those of the Lords in the trial of Warren Hastings.
These were for the thirty-four senators who were to sit in judgment.
Facing them were three rows of benches arranged in tiers and covered
with green cloth, as had been those of the Commons. These were for
members of the House of Representatives. On either side of the chair
of the presiding officer were inclosures covered with blue cloth;
respectively for the Managers, who were to prosecute the case, and for
the lawyers of the defense. Present, too, were the Chief Justice and
the associate justices of the Supreme Court.
The young Republic, alas, could produce no peers in gold and ermine.
There were no brothers and sons of a ruling monarch, nor an heir
apparent conspicuous for his fine person and noble bearing. Nor could
the raw and straggling community that then went under the name of
Washington present the same array of genius and fashion as London. But
it did the best it could with the raw material it had. In the Senate
Chamber a temporary gallery had been erected. Here were boxes provided
with comfortable seats from which ladies dressed in the height of
fashion followed the proceedings.
Who was responsible for this elaborate and colorful setting,
so obviously imitating the spectacle of a few years earlier at
Westminster? Senator Plumer, of New Hampshire, records that all the
arrangements were in the hands of the Vice-President who also presided
over the trial. And that Vice-President was Aaron Burr. One might have
guessed that no other American statesman boasted the same dramatic
instinct. Nor was the stage set without his awareness that he was to
play a leading part on it. And he played it well. From at least one
none-too-friendly critic he provoked the comment that: “He conducted
with the dignity and impartiality of an angel, but with the rigor of a
devil.” Burr was greatly pleased with that remark and quoted it in a
letter to his daughter, Theodosia.
Through February the arguments were heard. Then on March 1 the Senate
voted on the charges. The Republicans could not muster enough votes
to convict and Vice-President Burr closed the proceedings with the
pronouncement that Samuel Chase, Esquire, stood acquitted of all the
articles exhibited by the House of Representatives against him.
The impeachment of Chase was the prelude to another legal spectacle
soon to follow. Once more the leaders of the American bar were to have
an opportunity to emulate their English brethren. As Burr, half-angel
and half-devil, presided while Samuel Chase awaited his fate at the
hands of the United States Senate, did he have an inkling that in the
next cause célèbre he would appear not as presiding officer, but in the
role of the accused?
This time the leaders at the bar were to have as the subject of their
contention not a mere associate justice of the Supreme Court but a
former Vice-President of the United States. The charge against him was
to be not just incompetence in office, but the high crime of treason.
An effort was to be made to show that Burr, who had been honored by his
countrymen with the second highest elective office in the land, had
responded to that generosity by doing his best to split the nation in
half while it was still struggling for survival.
The trial was to provide another battleground for the two new political
parties--the Federalists, representing wealth and aristocracy and
conservatism, and the Jeffersonian Republicans, recruited from the
masses and led by a man of no small fortune who was regarded by the
Federalists as a dangerous radical and a traitor to his class. It was
to be the scene, too, of a fight for power between the executive and
the judiciary reflected in the personalities of Thomas Jefferson and
John Marshall--a fight not only of immediate moment but one whose
outcome was to determine the relative positions of the two branches of
government for years to come.
Finally, if the accused was found guilty he faced not simply dismissal
from office, but death on the gallows. Even the colorful impeachment of
Warren Hastings fell short of that.
_Chapter_ I
At dusk on the evening of the twenty-sixth of March, in the year 1807,
there arrived in Richmond, Virginia, over the road from Fredericksburg,
a stagecoach bearing a party of seven men. It pulled up on Main
Street before the Eagle Tavern, one of the leading hostelries of the
town, where in the growing darkness the passengers descended without
attracting great attention.
One of them was a tall, thickset man with a weather-beaten face whose
air of authority marked him as leader of the group. His companion, of
less than average height, lightly built and erect, wore a rough suit
of homespun with pantaloons and a hat with a wide brim which drooped
disconsolately over his refined features. Those unmistakable evidences
of gentility were in striking contrast to the uncouth dress of a
backwoodsman.
The large man bore the name of Nicholas Perkins. He was registrar of
the land office of Washington County in faraway Alabama. The second man
was Aaron Burr, lately Vice-President of the United States, and now a
prisoner of the United States Army. The other five men were his guards,
especially picked to assure the safe delivery of the prisoner wherever
the authorities might direct. Theirs had not been an arduous task. With
one minor exception the prisoner could not have been more co-operative
and amenable.
The trip from Alabama had taken 21 days, but the journey which brought
Aaron Burr to his present situation might be said to have begun when
he first saw the light of day more than 51 years before. For nature
had endowed him at birth with a fatal combination of brilliance and
deviousness that in the end was to be his undoing.
No man could have been blessed with worthier forebears than was Aaron
Burr. The first of the line to arrive in this country was one John
Burr, a Puritan, who came to the Massachusetts colony with Governor
John Winthrop in 1630. Aaron, born on February 6, 1756, in Newark,
New Jersey, represented the fourth generation in descent from the
immigrant. His father, whose name he bore, was president of the College
of New Jersey, shortly to become Princeton. Aaron’s mother was Esther
Edwards Burr, daughter of the Rev. Jonathan Edwards, theologian,
metaphysician and scholar. Because of his many descendants who achieved
distinction, Jonathan Edwards was destined to go down in history as one
of the greatest of New England progenitors. Following the death of his
son-in-law, Edwards also held the office of President of Princeton.
When Aaron was still a child his father and mother died, and he and his
older sister Sally were sent to live with an uncle, Timothy Edwards, of
Elizabethtown. Uncle Timothy met his responsibility with Puritan zeal.
Aaron’s childhood was marked by strict discipline. Distasteful though
it may have been it bore practical results. A precocious youngster to
begin with, he progressed so rapidly in his studies that he was ready
to enter the sophomore class at Princeton at the age of 13 years. In
1772, aged 16, he was graduated at the head of his class.
Already he was beginning to exercise an irresistible charm. The hazel
eyes, which seemed to cast a hypnotic spell on whomsoever they fell,
the regular handsome features, and an ingratiating manner made him a
favorite among his fellows and aroused lively interest in those of the
other sex.
Sister Sally by now had married Tapping Reeve, another person of
outstanding intellect, who conducted a law school at Litchfield,
Connecticut. To Litchfield Aaron repaired, to begin professional
studies under his brother-in-law. Tradition has it that at Litchfield
commenced the series of love affairs that were to earn Aaron the
reputation of a philanderer. There he was when the Revolution broke out.
Fired with patriotism, Burr volunteered his services in time to join
the expedition against Quebec which was led by Benedict Arnold. In that
arduous and ill-fated campaign he conducted himself with courage and
fortitude and was rewarded by being made a captain on the headquarters
staff. He displayed signal gallantry in the heat of the battle and
General Montgomery, Arnold’s lieutenant, died in his arms.
Arriving in Albany flushed by his exploits in the Quebec campaign,
Burr received word that General Washington would find it agreeable to
see him in New York City where the Commander-in-Chief then had his
headquarters. On Burr’s appearance there the General invited him to
join his official family and Burr accepted. The prospect was indeed a
pleasing one.
On this occasion, however, the usually irresistible charm failed to
work. Burr, young and impetuous and fired with enthusiasm, apparently
expected to be taken into General Washington’s confidence and to share
in planning the grand strategy. On the contrary he was treated with
no particular deference and saw himself nothing more than a clerk.
Disappointed and discouraged he appealed to John Hancock, President
of the Continental Congress, who arranged to have him transferred to
General Putnam’s staff. His stay at general headquarters lasted only
about six weeks.
Other later contacts between General Washington and Burr proved to be
equally unsatisfactory. In the retreat of the army after the Battle of
Long Island Burr saved a brigade from capture and was annoyed when the
incident passed unnoticed by the General. When, a year later, a letter
came from the General notifying Burr of his promotion to lieutenant
colonel, instead of expressing gratitude Burr wrote a petulant reply
complaining of others who had been promoted ahead of him and asking
whether the late date of the commission was due to any misconduct on
his part.
In the winter of Valley Forge Burr proposed a raid on Staten Island
which Washington turned down. When in the same winter Generals Conway,
Lee, and Gates plotted to relieve Washington of command, Burr was
counted in the camp of the conspirators. At the Battle of Monmouth just
as Burr was about to attack, General Washington appeared on the scene
and countermanded the order. Yet when soon thereafter Burr suffered
a sunstroke which ended his military career, Washington accepted his
resignation “with regret.”
The most authoritative account of the relationship between Washington
and Burr is found in the memoir of Matthew L. Davis, Burr’s friend
of many years and his literary legatee. Davis states that Burr’s
prejudices against Washington became so fixed and unchangeable that
up to his dying day he referred to the retreat from Long Island with
acrimonious feelings for the commander. It is equally certain, adds
Davis, that for some reason Washington placed no confidence in Burr and
was exceedingly hostile to him.
Following his retirement from military service Burr was admitted to
the bar and opened a law office in Albany. He soon thereafter married
Theodosia Prevost, a widow ten years his senior and already the mother
of five children. She bore him two daughters. Little is known about one
of them who appears to have died in early childhood. The other, bearing
her mother’s name, lived on, as we shall see, to play a major role in
the life of her father.
Letters of the elder Theodosia to her husband reveal an almost pathetic
adulation. On at least one occasion Burr reacted with an impatience
such as he seldom showed to anybody. Still, the marriage appears to
have been on the whole a happy one, and it lasted twelve years until
the death of Mrs. Burr in 1794.
Burr’s intellect, his political instinct, and his charm combined to
speed him on his career. Casting his lot with the Jeffersonians, he
was elected to the New York Assembly. He moved to New York City and
soon was recognized as a leader at the bar. There he found Alexander
Hamilton already firmly established both in law and politics, and soon
to apply his power and genius to blocking Burr’s further progress.
Hamilton, like Burr, was a veteran of the Revolution and had served
on Washington’s staff; but, unlike Burr, Hamilton was highly esteemed
by the Commander-in-Chief. The friendship and mutual confidence there
cemented were carried on into civilian life and Hamilton, who shared
Washington’s conservative views, entered the first President’s cabinet
as Secretary of the Treasury. When Burr arrived in New York Hamilton
was leader of the local Federalists and the Federalists controlled the
town.
After the Revolution there was established in New York and other cities
in the East an organization bearing the name of the Tammany Society.
Its membership was composed of mechanics and like humble citizens and
it was dedicated to social, patriotic, and charitable activities.
Burr was the first man in public life to realize its potentialities
as a political force and to use the New York organization for the
advancement of his own political fortunes. Meanwhile he had been
appointed Attorney General of the state and from that vantage point was
elected to the United States Senate over General Schuyler, Hamilton’s
father-in-law. The victory, naturally enough, served to aggravate
Hamilton’s jealousy and increase his concern over this rising political
rival.
So far had Burr progressed in popular esteem that, in the Presidential
election of 1796, he received 30 electoral votes as against 71 for John
Adams, the victor, and 68 for Thomas Jefferson. His term in the Senate
having expired, he returned to the practice of law and also to the New
York Assembly.
In the Presidential election of 1800 Burr’s meteoric political career
reached its peak. He and Jefferson, running as Republicans, received
an equal number of electoral votes and the election was thrown into
the House of Representatives. For the first and last time Burr was
within one vote of winning the nation’s highest honor. But, on the
thirty-sixth ballot, Jefferson was elected. As was the rule in that
day Burr, who had received the next highest number of votes, became
Vice-President.
In the election Burr had put his political machine to such effective
use that the Federalist monopoly in New York was broken and enough
Republicans from the city won seats in the Assembly to give their party
control. Since the Assembly chose New York’s electors, and since in the
election of 1800 New York was the pivotal state, Burr could reasonably
claim credit for swinging the election which threw the Federalists out
of the government in Washington and put the Republicans in.
Hamilton was far from being a silent witness to these events. By now
he was thoroughly alarmed not only for himself but for the safety of
the nation whose future he saw in jeopardy if the Presidency were to
go to a man of the caliber he judged Burr to be. With all the vigor
at his command he threw himself into the contest to prevent Burr from
winning the necessary votes. “As unprincipled and dangerous a man as
any country can boast,” “as true a Cataline as ever met in conclave,”
a man whose “private character is not defended by his most partial
friends,” “bankrupt beyond redemption except by the plunder of his
country,” his “public principles have no other spring or aim than his
own aggrandizement”--these were among the extravagant epithets Hamilton
applied to Burr in letters to friends. As much as he disliked Jefferson
there was no question in Hamilton’s mind that the rangy Virginian
doctrinaire was the lesser of the two evils. Burr could lay his failure
to attain the Presidency to the violent animosity of Hamilton.
Burr’s political success in New York was disturbing not only to the
Federalists but equally so to certain members of his own party. The New
York Republicans were then divided into three factions made up of the
followers of the Livingston and Clinton families and of Burr. All three
groups were steeped in intrigue and so bankrupt of moral principle that
there was little choice between them. Albert Gallatin, Jefferson’s
Secretary of the Treasury and political mentor, was inclined to give a
preference to Burr. Not so Jefferson.
The presidential election over, Burr showed his pique by kicking over
the traces. In January 1802 a bill to repeal the hated judiciary act,
passed in the previous year by the Federalists, reached the Senate.
A motion to recommit led to a tie vote and left the decision to the
Vice-President. Burr voted with the Federalists. Then a few weeks
later, to add insult to injury, he appeared as guest at a dinner given
by the Federalists and there proposed a toast to “the union of all
honest men.” It was abundantly clear to those present that in the
select company of honest men Burr emphatically did not mean to include
Mr. Jefferson and the rest of the “Virginia dynasty.”
Such disloyalty to his party could not be overlooked. Within a few
days the Republican press, led by DeWitt Clinton’s New York _American
Citizen_ and William Duane’s Philadelphia _Aurora_, was in full cry.
There was no longer any doubt that Jefferson, the Clintons, and the
Livingstons were determined to strip Burr of his power and drive him
from the party.
Considering the conflicting temperaments of Burr and Jefferson the
split between the two men was inevitable. Though Jefferson professed
to believe that Burr had declined the blandishments of the Federalists
to have himself elected President in 1801, a truer opinion of Burr is
revealed in a letter written some years later to Senator William B.
Giles. Jefferson denied having ever had any hostile sentiment toward
Burr yet confessed that he had not thought him an honest, frank-dealing
man but rather “a crooked gun, or other perverted machine, whose aim or
shot you could never be sure of.”
An election for Governor of New York was scheduled for the spring of
1804 and though Burr’s term as Vice-President would not be up until
March of the following year he announced himself as a candidate.
But the Clintons and the Livingstons controlled the party machine.
While the rank and file were for Burr the leaders saw to it that the
nomination went to one Morgan Lewis. Since the Federalists had no
candidate of their own and Burr was well liked by many of them, he
decided to run as an independent candidate, counting on both Federalist
and Republican votes. Here he met with violent opposition from
Alexander Hamilton, who had no intention being of humiliated by Burr,
whom he disliked and distrusted, winning the election with the aid of
Federalist votes. In the bitter campaign which followed Lewis, with
the support of the regular Republicans and a minority of Federalists,
was swept into office. Burr’s defeat, attributed largely to Hamilton’s
intervention, spelled the end of his political career.
In the course of the campaign Hamilton attended a dinner at the home of
a friend in Albany. It was an assembly of intimates and Hamilton freely
expressed his opinion of Burr. The matter might have ended there had
not the remarks he was supposed to have made found their way into an
Albany newspaper, from which they were picked up by other newspapers
throughout the state and used extensively in the campaign. One remark
was to the effect that Hamilton had said Burr was a “dangerous man
and ought not to be trusted.” The other credited Hamilton with having
applied to Burr the term “despicable.”
Burr waited until the campaign was over. Then he wrote Hamilton a
letter stating that the remarks had been brought to his attention and
demanding an explanation. Hamilton’s reply was evasive. After further
exchanges failed to give satisfaction, Burr’s friend William P. Van
Ness presented himself before Hamilton with a challenge to a duel.
Hamilton accepted. The date set was July 11 and the place the heights
of Weehawken in New Jersey across the Hudson River from New York City.
On July 4, according to its custom, the Society of the Cincinnati,
composed of former officers of the American army in the Revolution,
held a convivial celebration in honor of the Declaration of
Independence. Both Hamilton and Burr were members and both attended.
Those present recalled later that Hamilton was unusually gay, leading
the others in song, while Burr was more serious than was his usual
custom at these parties. Their conduct toward each other was so correct
that nobody suspected that the two men shortly were to meet in a duel.
Early on the morning of the 11th Hamilton, accompanied by Nathaniel
Pendleton, his second, and Dr. Davis Hosack, his surgeon, crossed
the river and arrived at the rendezvous. They found Burr and Van
Ness already on the ground, busy clearing away the underbrush and
overhanging boughs. The formal greetings required by the “Code” were
exchanged. The seconds loaded, inspected and approved the pistols, and
agreed on the procedure.
The principals took their positions. In appearance they were evenly
matched. Both men were short of stature, trim in figure, alert but
calm. Whatever their shortcomings neither lacked physical courage. With
pistols gripped they awaited instructions which were not long in coming.
The order “Fire!” was given by Pendleton in a loud voice, and two
shots followed. Burr stood unmoved; Hamilton fell forward on his face.
Pendleton and Hosack rushed to the wounded man’s side. Burr made a
motion as if to do likewise but was restrained by Van Ness, and after
removing their hats in respect for their opponent they left the scene.
Hamilton managed to tell Dr. Hosack he believed the wound was fatal
before he lost consciousness. The ball had passed through his liver and
lodged in his spine. He was rowed back across the river to New York
and, suffering great pain, lingered through the day and night and died
the following afternoon.
An incident which occurred on Burr’s return to Richmond Hill, his
handsome country home outside the city, affords a momentary glimpse
into the strange character of the man. A young relative, unaware of
what had happened, dropped by and found Burr engrossed in ordinary
household matters. He accepted an invitation to breakfast where the
conversation was confined to general topics. After breakfast the young
man said goodby and went down to Wall Street where a friend inquired
if he had heard that Burr had killed Hamilton in a duel. “Impossible,”
exclaimed the relative, “I have just had breakfast with the Colonel and
he said nothing about it.”
Those who knew him well say that Burr would have expected no mourning
had he, and not Hamilton, been killed.
But if Burr’s conscience was clear, not so that of the local community.
Before this meeting public opinion had turned strongly against dueling
as a means of settling personal differences. Anger reached fever heat
when the victim was so distinguished and popular a man as Hamilton. The
public cried out for punishment. Burr was indicted for murder in New
Jersey and for a misdemeanor in New York. To escape the action of the
courts he had to leave home and, as he expressed it, “give a little
time for passions to subside.”
When men faced the possibility of death in a duel it was customary
for them, on the eve of the meeting, to set down parting messages.
Burr’s on this occasion was a touching farewell to his daughter
Theodosia. Hamilton’s contained an apology for his attacks on Burr.
Confessing that in some particulars he might have been influenced
“by misconstruction of misinformation,” he concluded: “It is also my
ardent wish that I may have been more mistaken than I think I have
been, and that he, by his future conduct, may show himself worthy of
all confidence and esteem, and prove an ornament and a blessing to the
country.” Later events were to give a prophetic quality to the doubt
expressed.
The situation in which he found himself did little to disturb Burr’s
natural buoyancy. He allowed himself to be involved in a romantic
episode with a lady named Celeste and wrote gaily to Theodosia: “If
any male friend of yours should be dying of ennui, recommend to him to
engage in a duel and a courtship at the same time. _Prob. est._”
Burr’s objective at this time was a reunion with Theodosia, who had
married Joseph Alston, a wealthy South Carolina planter. The Alstons,
and their little son Aaron Burr Alston, had a home in Charleston.
Before going there Burr spent a brief vacation at St. Simon’s Island,
Georgia. His traveling companion, who acted also as secretary and
aide-de-camp, was Samuel Swartwout, whom Burr described as “a very
amiable young man of twenty or twenty-one.” Samuel was the younger
brother of John Swartwout, onetime Collector of the Port of New York
and a political ally of Burr who had been ignominiously discharged by
Jefferson. More will be heard of Samuel.
In the journey from Georgia to Charleston Burr included a 200-mile
canoe trip by inland waterways which revealed his exceptional powers
of endurance at the age of 48 years.
Around the beginning of the New Year of 1805 Burr was back in
Washington as presiding officer of the Senate. His admirable conduct
of the impeachment trial of Justice Samuel Chase has been mentioned.
But his official days were numbered. In the election of 1804 the
Republicans chose DeWitt Clinton, his New York rival, for second place
on the ticket. The Republicans were again the victors and Jefferson and
Clinton took office on March 1, while Burr went out.
The Vice-President made a dramatic exit. On the eve of his departure
he addressed the Senate. No scribe was at hand to record for posterity
his exact words. He himself stated that he had made no previous
preparation, but spoke merely from the heart. What posterity does know
is that he spoke so earnestly, so eloquently, and so convincingly
that some of his colleagues in that austere body broke down and wept
unashamedly. When he had finished, in spite of the duel, in spite of
political animosities and suspicions, they “Resolved, unanimously, that
the thanks of the Senate, be presented to Aaron Burr, in testimony of
the impartiality, dignity and ability with which he has presided over
their deliberations, and of the arduous and important duties assigned
him as President of the Senate.”
Was he not to be excused if, with such impressive evidence of magic
power over his fellow men, he was led to imagine that destiny still had
great things in store for him?
Yet, for the moment, there were serious defects in his fortunes which
called for immediate repair. He was out of political office. The
indictments against him in New York and New Jersey made it impossible
for him to return home to the practice of law which hitherto he had
found lucrative. Always extravagant in his tastes, and chronically
living beyond his means, he was now heavily in debt. Soon after the
duel he had been obliged to sell Richmond Hill for $25,000 to meet his
more pressing obligations. As one of his biographers says of him, he
was at this point what is popularly described as “a ruined man.” Under
these discouraging circumstances Burr turned his eyes to the West.
_Chapter_ II
The United States census of 1800 showed a population of 5,308,483
persons, of whom one fifth were slaves. The bulk of it was in the
states along the eastern seaboard; west of the Allegheny Mountains were
fewer than 500,000 settlers, chiefly in Ohio, Kentucky, and Tennessee.
The mountains served as a rugged barrier cutting off the westerners
almost completely from the East and giving them a sense of political as
well as physical detachment.
The only means of communication overland were three crude highways
largely limited to travel by horseback or by the great Conestoga
wagons drawn by six horses which carried such commerce as there was
between the two areas. One road led from Philadelphia to Pittsburgh,
another followed the line of the Potomac River through Maryland to the
Monongahela, and a third ran through Virginia and crossed the mountains
into Kentucky and Tennessee.
Once the tributaries of the Mississippi River were reached river craft
provided a more luxurious mode of travel and also transported freight.
The staple products of the western country were floated downstream on
flatboats to New Orleans to be sold there and shipped by sea. Sometimes
their owners went along to market their goods in the thriving young
cities of the East and returned home across country on horseback.
That was why Spanish control of the mouth of the Mississippi at New
Orleans, involving refusal of the right to deposit goods there, had
been so irritating to the people of the West. The westerners with
considerable justification considered the easterners indifferent to
their problem and felt they were getting precious little in return for
the taxes they paid to the central government. During the period of the
Confederation when the prospect of a solid, united nation was anything
but sure, a separatist movement sprang up in Kentucky and Tennessee.
Its object was an independent nation west of the Alleghenies under
the protection of Spain, whose colonial officers encouraged the idea.
Though the so-called “Spanish Plot” had the support of influential men,
it was not accepted by the rank and file. The purchase of the Louisiana
Territory in 1803, with the control of New Orleans, and the granting
of statehood to Kentucky and Tennessee, served further to weaken the
separatist urge.
Magnificent as the Purchase eventually proved to be, it had serious
flaws. The original mission of Livingston and Monroe to France called
for the acquisition of the Floridas. Yet the final settlement did not
include East Florida and left the claim to West Florida in doubt.
Equally vague, and therefore a cause for controversy, was the Texas
boundary. These questions, of great moment to the South and West, were
little understood or bothered about by the rest of the country. They
did, however, give grave concern to President Jefferson. Acquisition
of the Floridas became an obsession with him and, until the issue was
settled, war with Spain was always an imminent possibility. The Spanish
did not help ease the tension when they massed troops on the frontier.
Meanwhile in Europe the Napoleonic wars were resumed and Spain, as an
ally of France, returned to her irritating practice of seizing American
merchant ships that were alleged to be carrying cargoes to Britain.
Thus it came about that in his message to the Ninth Congress in
December, 1805, President Jefferson’s charges against Spain were so
violent and his warning of retaliation so strong that many interpreted
it as being virtually the introduction to a declaration of war. It
was so played up by the Republican press throughout the country. This
widespread belief in the imminence of armed conflict was to have
an important bearing on the activities of Aaron Burr in the West.
The general public did not know that the threats in the message were
primarily for Spanish consumption and that in a secret communication
Jefferson was proposing simultaneously an amicable settlement of the
Floridas dispute through purchase.
In the spring of 1805, immediately after terminating his duties in
Washington, Burr set out on horseback along the highway for Pittsburgh,
even then a flourishing center of trade. There he purchased a
commodious houseboat and began a journey down the Ohio River. The boat
contained a dining room, kitchen with fireplace, and two bedrooms; the
roof, running the length of the craft, served as a porch and a place
for exercise. Burr’s ultimate destination was New Orleans but he made
a leisurely progress, stopping frequently at settlements along the
river. In that remote country any visitor from the East was welcome and
none more so than the distinguished and charming ex-Vice-President.
In the West no stigma was attached to dueling, but rather admiration
was bestowed on a man who had practiced it. And, since most westerners
were Jeffersonian Republicans, the fact that Burr’s victim had been a
Federalist leader was more reason for applause than for condemnation.
One of Burr’s stops was at an island a few miles below Marietta, Ohio.
It was owned by an Irish gentleman named Harman Blennerhassett who
had erected a handsome mansion on it. The master was away but Burr
was graciously entertained by Mrs. Blennerhassett. The island and its
owners were to figure prominently later in the alleged conspiracy.
At Cincinnati Burr was entertained by Senator John Smith of Ohio,
a versatile fellow who, in addition to representing his state in
the Senate, acted in such diverse capacities as Baptist preacher,
storekeeper, speculator, and army commissary. There too Burr ran into
his old friend Jonathan Dayton, former U.S. Senator from New Jersey,
a kindred spirit whom he had known since college days at Princeton.
Dayton, like Burr, was now out of a job; and, like Burr, on the lookout
for an improvement in his fortunes.
Burr left the river and proceeded by land to Frankfort, Kentucky, and
from Frankfort to Nashville, Tennessee, where he was received with
public honor and invited by General Andrew Jackson to be his guest at
the Hermitage. Of his relations with Jackson more will appear later.
From Nashville Burr journeyed to Fort Massac, an army post on the Ohio
River not many miles above its confluence with the Mississippi, where
he had another significant meeting with an old friend of Revolutionary
War days, Maj. Gen. James Wilkinson. They had served together on
the expedition to Quebec. Wilkinson now held the important offices
of Commander-in-Chief of the United States Army and of Governor of
Louisiana Territory. In the previous winter Burr and Wilkinson had met
in Washington and it was reported they spent much time studying maps of
the Spanish territories that adjoined those of the United States in the
South and Southwest. They had become sufficiently intimate to devise a
cipher to be used in their personal correspondence and so protect it
from prying eyes.
Wilkinson supplied Burr with a new houseboat equipped with sails and
assigned to it a detachment of soldiers which enabled Burr to make an
impressive entry into New Orleans in keeping with his station as a
statesman temporarily out of a job. Wilkinson provided him as well with
several letters of introduction. Wilkinson was to play a major role in
the alleged conspiracy.
On his arrival in New Orleans Colonel Burr was cordially welcomed by
Governor W. C. C. Claiborne as well as by the governor’s numerous
and vociferous enemies. He saw much of the leaders of the Mexican
Association, an organization sympathetic with Mexico’s aspirations for
liberation from Spain. He was well received also by the Roman Catholic
Bishop of New Orleans who favored this cause since at the time the
Spanish rulers were threatening to confiscate church property in Mexico.
After three weeks in New Orleans Burr retraced his steps northward
as far as St. Louis. Again he gave an impressive demonstration of
his physical fitness by traveling on horseback from New Orleans to
Nashville through the roughest sort of country. By the end of the year
he was back in Washington dining with President Jefferson at the White
House.
Late in the summer of 1806 he again set out for the western country.
Summer gave way to autumn and as the days grew shorter alarming rumors
about his doings spread through the East. Some of them reached the
White House. What was Burr up to?
Foremost among the informants was Joseph Hamilton Daveiss, U. S.
District Attorney for Kentucky, who owed his appointment to President
John Adams. As early as January he was writing letters to the President
warning him of a plot and implicating Burr. But the President was
not happy about this source of information. Daveiss was aided and
abetted by former U. S. Senator Humphrey Marshall of Kentucky. Both
were Federalists; both were brothers-in-law of the Chief Justice for
whom Mr. Jefferson had no fondness. Humphrey Marshall, a first cousin
of John Marshall, and Daveiss had married John’s sisters. Furthermore
all the people they mentioned as being involved in the conspiracy were
Republicans. Naturally the President wondered why his political enemies
should be taking so much trouble to keep him informed, and suspected
their motives.
Receiving no encouragement from the President, Daveiss and Marshall
pursued their campaign alone. In July there appeared in Frankfort a
publication under the name of the _Western World_ with which Daveiss
and Marshall were closely identified. In its September issue it
openly charged that there was a conspiracy afoot to combine Kentucky,
Tennessee, Ohio, Indiana, Louisiana, and the Floridas into an
independent government. The newspaper added that while the majority of
the conspirators wanted to call a convention and obtain the consent
of Congress, a considerable number favored effecting their purpose
by force of arms. The statement turned out to be pure speculation;
nevertheless it was picked up and widely republished in the East.
Burr by this time was in Lexington, Kentucky. Daveiss now took another
step. In his capacity as district attorney he appeared in the Federal
Court at Frankfort and accused Burr of having violated the laws of the
Union by setting on foot an unauthorized expedition against Mexico, a
country with which the United States was at peace. A similar charge
was preferred against Senator John Adair of Kentucky. Adair, a veteran
of the Revolution, had accompanied Wayne and Wilkinson on a campaign
against the Indians in the Northwest in 1791. He enjoyed Wilkinson’s
confidence, met Burr through him, and seems to have taken the attitude
that Burr was an advance agent of the Federal Government to arouse the
West for a war with Spain and conquest of the Southwest.
Learning of the charge, Burr presented himself at Frankfort and
demanded an examination. A grand jury was empaneled but Daveiss could
not round up his witnesses and asked for its discharge. Thanks to
his failure Daveiss was held up to public ridicule. Two weeks later
the same performance was repeated. Another grand jury was empaneled,
Daveiss again failed to assemble his witnesses, and again Burr was
discharged. So too was Adair. To add to his accuser’s mortification
Burr’s second victory was celebrated by a public ball.
The silence in Washington in the face of what was going on led to two
possible conclusions. One was that the administration was too weak to
put up a fight even against its own destruction. The other was that if
Burr actually was leading an expedition against Mexico he was doing so
with the co-operation and blessing of the Jefferson administration.
Burr’s dinner at the White House of the winter before lent credence to
that conjecture. The public could not know that Burr had requested the
meeting and had gone to the White House to beg some important office
in the administration, and to warn Jefferson that if he did not get
it he was in a position to do him much harm. Mr. Jefferson had enough
informants on Burr’s trail to comprehend what the threat implied.
But he was not to be bullied or frightened. He replied calmly that
he had always realized Burr had talent and hoped he would put it to
the public good. However, Burr must be aware that the public had lost
confidence in him. Mr. Jefferson did not know why Burr should wish to
do him harm but he feared no injury.
This was not the first time Burr had enjoyed the hospitality of the
White House at his own solicitation. Two years before, when he was
about to retire from the Vice-Presidency, he had dined with Mr.
Jefferson, had proposed an alliance between them, and on that occasion
too had asked for an office. The President had declined the request.
He thought the meeting sufficiently important to note it in his diary,
remarking that Burr’s conduct had always inspired him with distrust.
Evidently Jefferson was not to allow this distrust to forbid Burr the
White House. No doubt he hoped to derive information from such contacts
and was so confident Burr could do him no harm that he was indifferent
to the use which Burr might put the show of intimacy. Unfortunately, at
this critical moment the policy left the country uncertain as to how
far the administration was implicated in Burr’s operations.
At last the Government at Washington acted. Following discussions by
the Cabinet on October 22 and 25, John Graham, secretary of the Orleans
territory, who was in the East and about to return to his post, was
ordered to stop in Ohio and Kentucky on his way westward and inquire
into Burr’s movements. He arrived in Marietta during the middle
of November where he was warmly welcomed by Harman Blennerhassett
who talked freely with him. It seems that in his effort to impress
Blennerhassett, Burr had told him that Graham was concerned in the plot.
Graham proceeded to Chillicothe where the Ohio Legislature was sitting
and persuaded that body to authorize the governor to use the militia
to seize Burr’s boats that were building at Marietta. He then went
to Kentucky and induced its legislature to take action to halt the
conspiracy. He was too late, however, to prevent a flotilla under the
command of Blennerhassett from passing down the Ohio River to join
Burr’s contingent at the mouth of the Cumberland.
On November 27 the President issued a proclamation that was broadcast
throughout the western country warning all good citizens to withdraw
from unlawful enterprises. Thus he made it emphatic that whatever might
be taking place was without the Government’s sanction.
Simultaneously orders were dispatched to the civil authorities, from
Pittsburgh to New Orleans, putting them on the alert and directing them
to use regular troops and militia to thwart any illegal enterprise that
might be brewing. The proclamation was disappointing to the public
since it left the nature of the enterprise a mystery and did not so
much as mention Burr’s name.
On December 1 the President sent his regular message to Congress. He
made casual reference to the conspiracy, but again supplied no names.
Meanwhile the House of Representatives was growing restive. John
Randolph of Roanoke, the brilliant but eccentric Virginia member,
who had broken with the Jeffersonians and was now constantly looking
for ways to embarrass the administration, introduced a resolution
requesting from the President detailed information on the conspiracy.
Thus spurred to action, President Jefferson, on January 22, addressed a
special message to the Senate and House of Representatives. He stated
that in answer to their request he was transmitting to them information
received by him touching on “an illegal combination of private
individuals against the peace and safety of the Union, and a military
expedition planned by them against the territories of a power in amity
with the United States, with the measures pursued for suppressing the
same.”
At last the President was specific. The prime mover, he said, was Aaron
Burr, “heretofore distinguished by the favor of his country.”
As early as September, the message continued, the Government had
received reports of agitation in the western country. Then in the
latter part of October the objects of the conspiracy began to be
perceived. But they were still so involved in mystery that nothing
distinct could be singled out for pursuit. However, the Government had
sent a trusted agent to investigate the plot.
Then, said the President, on November 25 the Government had received
from General Wilkinson, Commander-in-Chief, a letter in which the
General reported having been visited by a confidential agent of Burr,
with communications partly written in cipher, and partly oral, setting
forth his designs and offering Wilkinson such emolument and command as
to engage him and his army in the unlawful enterprise.
But, declared the President, “The General, with the honor of a soldier
and the fidelity of a good citizen, immediately dispatched a trusty
officer to me with the information of what had passed. Thanks to the
General’s letter and other information received a few days earlier, it
was possible to develop Burr’s general design.”
It appeared, said Jefferson, that Burr contemplated two distinct
objects, which might be carried on either jointly or separately, and
either the one or the other first, as circumstances should direct.
One of these was the severance from the Union of the states west of the
Allegheny Mountains.
The other was an attack on Mexico.
The President mentioned also as a third object a settlement on what
he called “a pretended purchase” of a tract of country on the Washita
River in northern Louisiana. As the President interpreted it, this
third object, however, was merely to serve as a pretext for Burr’s
preparations in collecting men, boats, and supplies, and as an
allurement for such followers as really wished to acquire settlements
in that country. It also was to serve as a cover under which to retreat
in the event of the final discomfiture of both branches of his main
design.
But, said the President, Burr had found that the attachment of the
western country to the Union was not to be shaken. Its dissociation,
therefore, could not be obtained through the consent of the
inhabitants, and Burr’s resources were inadequate to effect his purpose
by force. So, instead, Burr had determined to seize New Orleans,
plunder the bank there, take possession of the military and the naval
stores, and proceed on his expedition to Mexico.
Burr, the message further charged, had seduced good and well-meaning
citizens--some of them by pretending he enjoyed the confidence of the
Government and was acting under its secret patronage, others by offers
of lands on the Washita.
In response to his proclamation of November 27, reported the
President, Governor Tiffin of Ohio and the Ohio Legislature had, “with
a promptitude, energy and patriotic zeal, which entitled them to a
distinguished place in the affection of their sister states, effected
the seizure of all the boats, provisions and other preparations within
their reach, and thus gave a first blow, materially disabling the
enterprise at its outset.”
The President went on to say that when the authorities of Kentucky and
Tennessee received the proclamation and learned the true circumstances,
they followed the admirable example set them by their sister state
of Ohio. The governors of New Orleans and Mississippi also had been
alerted. Great alarm had been caused in New Orleans by the exaggerated
accounts of Mr. Burr disseminated there.
But, according to the message, the faithful General Wilkinson had
arrived on the scene on November 24 and “immediately put into activity
the resources of the place for the purpose of its defense.” Great zeal
had been shown by the inhabitants generally.
In the present state of the evidence, said the President, some of it
delivered under the restriction of private confidence, neither safety
nor justice would permit the exposing of names, except that of the
principal actor.
Of Burr, he declared, his “_guilt is placed beyond question_.”
Such was the Government’s version of the conspiracy as conveyed by
President Jefferson to the Congress. The report was supplemented with
various letters and other confirmatory documents. It left no doubt that
the conspiracy had been crushed, even though at the time of its writing
the “principal actor” was still at large.
Meanwhile the “principal actor,” commanding a small body of men on
flatboats, was on his way down the Mississippi River. He had arrived
at a place called Cole’s Creek in Mississippi territory when he
first learned of the hue and cry raised against him by the President
and General Wilkinson. A few days prior to this he had voluntarily
surrendered himself to the territorial authorities and, after an
inquest like the two earlier ones in Kentucky, he had been dismissed
by a grand jury. Instead of indicting Burr the jury rebuked the
authorities for their overzealousness in interfering with him and his
men.
Burr had nothing to fear from the civil authorities of Mississippi, but
the military under Wilkinson’s command were quite a different matter.
According to his later testimony Burr imagined his life was in danger.
For the first and last time in his life he acted in a manner that
suggested cowardice. He deserted his followers. Disguising himself as
a backwoodsman he mounted a horse and started his flight. By this time
the alarm had been broadcast and everywhere people were on the lookout
for him.
It was Nicholas Perkins who, informed of the presence of a mysterious
stranger near Wakefield, in Washington County, Alabama, set out to
investigate. His keen eye noted that the boots showing below the
stranger’s pantaloons were much too fine for any ordinary countryman.
Burr, on being challenged, acknowledged his identity and agreed to go
with Perkins who turned him over to the military authorities at Fort
Stoddart, an army post north of Mobile.
The commander was a young Virginian, Lieutenant Edmund Pendleton
Gaines. Gaines engaged Perkins to deliver his prisoner to the
Government in Washington. On March 5 the party set out. The first part
of the journey, made on horseback, lay through the Cherokee Indian
country in Alabama and Georgia. Heavy rain increased the discomfort
of the travelers. Burr bore his hardships without a whimper and with
but one incident of insubordination. As a lawyer he knew his arrest
was highly questionable. South Carolina was the home of his son-in-law
where he might perhaps find sympathy. So, while passing through the
little settlement of Chester in that state, Burr leaped from his
horse and shouted, “I am Aaron Burr, under military arrest, and claim
the protection of the civil authorities.” Perkins, with his superior
size and strength, calmly took him around the waist, sat him back on
his horse, and the party proceeded. Thereafter, Burr traveled in a
gig. That is, until the party shifted to a stagecoach shortly before
reaching Richmond.
The original destination had been Washington. But at Fredericksburg,
Virginia, Perkins received counterinstructions from President Jefferson
to deliver his prisoner to the authorities in Richmond. So on their
arrival at the Eagle Tavern, Perkins’ task was nearly ended.
That explains why and how a former Vice-President of the United States
found himself in the toils of the law. The rumors of conspiracy that
had spread throughout the country during the last two years had now
been confirmed by the President of the United States. Burr’s guilt,
declared that highest authority, was “beyond question.” And, but for
the honor of Wilkinson the soldier and the fidelity of Wilkinson the
good citizen, who acted in the nick of time, no telling where the
country would be. Such was the official version.
No wonder the general public, in the face of the damning evidence,
expected the ensuing trial to be a mere formality. No wonder a toast
that became universally popular was drunk to “Aaron Burr--may his
treachery to his country exalt him to the scaffold, and hemp be his
escort to the republic of dust and ashes.”
The gallows might loom before him. Burr surveyed the prospect with his
accustomed calm.
_Chapter_ III
When fortune thus rudely delivered Burr at its gates Richmond was a
thriving community of over 5,000 souls. Of these from a third to a
half were colored slaves. The town, situated on the falls of the James
River, enjoyed the distinction of being the seat of government of a
commonwealth which, despite the loss of Kentucky, still extended from
the Atlantic coast to the Ohio River and included the present West
Virginia. It ranked as one of the important cities of the young nation
along with Boston, New York, Philadelphia, Baltimore, and Charleston,
South Carolina.
Richmonders boasted that their city, like Rome, was built on seven
hills. These overlooked the river on the north. The most conspicuous of
them was the lofty promontory known as Capitol Hill on which stood the
state capitol, an impressive structure with a columned portico facing
the river and some hundred or more feet above it. Credit for the design
was given to Jefferson who took as his model the Roman temple known as
the Maison Carrée at Nismes, France.
Richmond owed its commercial prosperity to being the city in the
state farthest inland on navigable water. It was dominated by Scotch
merchants who imported manufactured goods from Europe and sold them to
their fellow townsmen and the planters nearby. Then they bought from
the planters grain and tobacco which they marketed abroad or in the
cities to the north, taking a nice profit on each transaction.
The town had been laid out many years before by Col. William Mayo, a
friend of the second William Byrd, its founder. The Colonel adopted a
checkerboard plan, the streets running east and west paralleling the
river, each on a higher level than the other, and intersected at right
angles by streets running north and south. The capitol sat in the
middle of an open space of several acres known as Capitol Square, whose
steep slopes were scarred with unsightly gullies. Behind the capitol
the ground leveled off into a plateau whose north side, bearing the
name of Shockoe Hill, served as the fashionable residential section of
the town.
The Eagle Tavern to which Burr had been conducted stood on Main Street,
an east-west thoroughfare at the foot of Capitol Hill occupied chiefly
by shops and other business establishments. A trifle less refined than
the Swan Tavern at the top of the hill, it catered to a wide variety
of guests, including sportsmen, legislators, and planters who came
up to Richmond periodically for a brief respite from the monotony of
their plantations. The hostelry was identified by a sign, eight feet
by five, displaying a golden eagle. This was no ordinary bird. It had
been painted by the artist Thomas Sully, who in his later years was to
become one of the leading portraitists of his day and to number among
his subjects the young Queen Victoria of England. Sully got $50 for the
eagle, not an insignificant sum according to 1800 standards of value.
At the tavern Colonel Burr remained under informal arrest over the
weekend waiting to be handed over by the military to the civil
authorities. The warrant, issued by the Chief Justice of the United
States and written in his own hand, was based on the charges of treason
against the United States and of a high misdemeanor in preparing a
military expedition against the dominions of the King of Spain, with
whom the United States was at peace.
In the early days of the Federal judiciary there were no judges of
appeal, the appellant functions being performed by the justices of
the Supreme Court to each of whom was assigned a circuit. Virginia,
in which state Burr’s crimes were alleged to have been committed,
lay in the circuit assigned to the Chief Justice. The Judiciary Bill
of 1801, rushed through the Congress by the Federalists, provided for
appeals judges. But it had been repealed by the Jeffersonians. Thus the
presence of Chief Justice Marshall in Richmond on this occasion was
attributable to Jefferson’s counterattack on the Federalists, unmindful
though he may have been of the particular effect it was going to have
on the trial of Aaron Burr.
The formal procedure took place on Monday, March 30. It was a matter of
note among the Jeffersonians that the Chief Justice did not order the
prisoner to be brought to court but instead went himself to the Eagle
Tavern. They saw in this evidence of bias rather than a demonstration
of John Marshall’s consideration for a fellow man once exalted and now
humbled and reduced.
Over the weekend Colonel Burr had supplied himself with a suit and
fresh linen more in keeping with his station as a former Vice-President
of the United States than the homely disguise he had worn on making
his entry into Richmond. Shortly after mid-day Maj. Joseph Scott, the
United States Marshal for the Virginia district, appeared at Burr’s
quarters and politely informed him that the time had come for the
serving of the warrant. News of Burr’s arrival had spread through the
town and attracted a crowd of the curious to the tavern. It was “an
awfully silent and attentive assemblage of citizens” that looked on as
the Colonel was conducted by Marshal Scott to a retiring room where the
Chief Justice was waiting to examine him.
Present in the room with Judge Marshall were Caesar Rodney, newly
appointed Attorney General of the United States, and George Hay, the
District Attorney, representing the Government; and Edmund Randolph and
John Wickham, attorneys for the defense. Present also, in addition to a
few subordinates and friends of the accused, was Nicholas Perkins, who
had conducted the prisoner from Alabama to Richmond.
Of the principals the youngest man there was Caesar Rodney. He had just
turned 35 and was an enthusiastic Jeffersonian who had seen service
in the United States House of Representatives. His situation was
embarrassing since he had recently been on friendly terms with Burr.
Next in order of youth was Hay. Not a brilliant lawyer but a plodder,
and a determined one, he had rapidly forged to the front at the local
bar. In his rise he had no doubt been assisted by his loyal adherence
to Republican ideals. In an atmosphere that laid emphasis on birth it
was not overlooked that he was the son of Anthony Hay, keeper of the
Raleigh Tavern in Williamsburg. Richmond, however, was producing so
many self-made men that while the fact of humble origin may have been
noted, and perhaps mentioned privately, it placed no obstacle in the
path of those who were on their way up.
In contrast to these rising luminaries was Edmund Randolph, the eldest
in the group. Men developed early in those days and though Randolph
was only 54 years old he was nearing the close of a distinguished
career. He traced his descent from William Randolph of Turkey Island
and his wife Mary Isham. In producing worthy descendants these two
were to Virginia what Jonathan Edwards was to New England. They
produced in quantity as well as quality, and were referred to as the
Adam and Eve of Virginia. In the drama that was unfolding in Richmond
both prosecution and defense were represented by a rash of their
descendants. Proud though he may have been of his heritage, Aaron Burr
could not complain that in Richmond he was not largely in the company
of his social peers.
At the outbreak of the Revolution, leaving William and Mary College,
where he had been an apt student of the law, Randolph through his
breeding and ability gravitated to the staff of General Washington.
His military service was brief. It soon was apparent that, like
Jefferson, his talents were better suited to matters of state than to
the battlefield. From the age of 20 he was not out of office during
the succeeding 32 years. He served as mayor of Williamsburg, Attorney
General of Virginia, member of the Continental Congress, Governor
of his state, member of the Constitutional Convention, and Attorney
General of the United States in Washington’s Cabinet. Now in the
twilight of his career, he was present to add dignity to the defense.
As a staunch Federalist he considered it no more than his duty to lend
his talents to thwarting the Jeffersonians in their determination to
convict Burr.
Ten years junior to Edmund Randolph was his colleague John Wickham.
Wickham was something of an outsider to Virginia. Born on Long Island
in the colony of New York, the son of Tories, he was educated in
France for a military career. He returned home at the outbreak of the
Revolution just in time to be arrested by the American patriots, but
he was released in the care of a Virginia uncle. At the close of that
conflict he gave up the idea of a military career and read law. Now, at
the age of 44 years, he was the recognized leader of the Virginia bar.
Hay had measured swords with Wickham in the Richmond courts enough
times to recognize that he lacked Wickham’s skill and dexterity.
Wickham’s years abroad had endowed him with a sophistication unknown to
the average Virginia squire or merchant who traveled little beyond the
local frontiers. Tom Moore, the supercilious young Irish poet who paid
this country a critical visit at the turn of the century and abused
almost everybody from the President down, made an exception of Wickham.
He said he was the only gentleman he had discovered during his American
travels and that he would grace any court.
Yet in this galaxy of talent the Chief Justice was as usual the
dominating figure. His commanding height marked him out. His ruddy,
weather-beaten complexion setting off his fine dark eyes, his genial
expression suggesting a quiet sense of humor, his obvious indifference
to dress, and his loose-jointed awkwardness, all these combined to make
a pleasing impression of naturalness and sincerity. He and Colonel Burr
were not strangers. They had known each other in Washington when Burr
was in the Senate and Marshall in the House. Marshall, too, when Chief
Justice, had appeared both as spectator and witness at the Chase trial.
The proceedings at the tavern were brief. Hay had objected to the
locale in the first place--it was the strategy of the prosecution
to keep popular emotion high by putting on a public spectacle. He
consented to the meeting in the tavern only on condition that, if
arguments were needed, they would be heard at the Courthouse behind the
Capitol.
It was the not unwelcome task of Nicholas Perkins to give a dramatic
account of the detection of Colonel Burr under his disguise, his
arrest, and the long and tedious journey from Alabama to Richmond. He
spoke his piece with evident relish. When he had finished Hay submitted
a motion in writing that the prisoner be committed on the charges both
of treason and high misdemeanor. Counsel agreed that argument would be
necessary. Hay then moved adjournment to the Courthouse and the motion
was granted. The Chief Justice released Colonel Burr on bail at $2,500
for his appearance there at 10 A.M. on the morrow. Until then he was
free to go about the town as he pleased.
When, next day, at the appointed hour the Chief Justice took his seat
on the bench, the courtroom was filled to overflowing while a large
crowd outside clamored for admission. It was a half hour after the time
set for the hearing when Colonel Burr at last arrived. He apologized
for keeping the Court waiting, explaining that he had misapprehended
the hour.
Rather than disappoint those who could not find a place in the
courtroom, the Chief Justice consented to move the hearing to the great
hall of the House of Delegates in the Capitol nearby. This was a shabby
chamber, unimpressive except for its size; it could accommodate a large
crowd and, before the trial was over, all its space was going to be
needed.
It may be imagined that Colonel Burr observed with a critical eye the
drabness of the setting. Had he been in charge of the arrangements,
as in the trial of Justice Chase, surely he would have ordered things
differently. Colored hangings would have cheered up the premises no end
and perhaps even some artistic embellishment could have been thought
up for the plain sand boxes distributed around the hall at intervals
for the convenience of the tobacco chewers. In this austere atmosphere
all the proceedings of the trial thereafter were to take place. It was
notorious that counsel on both sides, like actors in a play, addressed
their remarks to the audience as much as they did to the bench.
Virginia was a big state with a variety of people. Since the crimes
with which Colonel Burr was charged were alleged to have taken place
on the western frontier, that territory was well represented both with
respect to witnesses and spectators. So it was that in the trial room
dignified gentlemen with hair powdered in the old style, and dressed in
fine ruffled linen, black silk and knee breeches, rubbed shoulders with
long-haired frontiersmen in leather hunting shirts and pantaloons.
The argument was opened by Mr. Hay who quoted the act of Congress
which made it a high misdemeanor for any person in the United States
territory to prepare an expedition against a nation with whom this
country was at peace. As evidence of Colonel Burr’s violation of the
act he cited a letter written by the prisoner to General Wilkinson.
Hay’s motion also asked that Burr be committed on a charge of treason.
He based this request on the Burr letter to Wilkinson, to an affidavit
given by the General, and also on an affidavit of one William Eaton.
Eaton too bore the title of General, but its authenticity was
questioned.
Burr’s letter to Wilkinson had been written in Philadelphia in a cipher
previously agreed upon between them. It was dated July 29, 1806, and
read:
“Your letter, postmarked 13th May, is received. At length I have
obtained funds, and have actually commenced. The eastern detachments
from different points, and under different pretences, will rendezvous
on the Ohio, 1st of November. Everything internal and external favors
our views. Naval protection of England is secured. Truxton [Commodore]
is going to Jamaica to arrange with the admiral on that station. It
will meet us at the Mississippi. England, a navy of the United States,
are ready to join, and final orders are given to my friends and
followers.
“It will be a host of choice spirits. Wilkinson shall be second to
Burr only, and Wilkinson shall dictate the rank and promotion of his
officers. Burr will proceed westward 1st of August, never to return.
With him go his daughter and his grandson. The husband will follow
in October, with a corps of worthies. Send forthwith an intelligent
friend with whom Burr may confer. He shall return immediately with
further interesting details: this is essential to harmony and concert
of movement. Send a list of persons known to Wilkinson west of
the mountains, who could be useful, with a note delineating their
character. By your messenger, send me four or five commissions of your
officers, which you can borrow under any pretence you please.
“Already are orders given to the contractor to forward six months’
provision to points Wilkinson may name; this shall not be used until
the last moment, and then under proper injunctions. Our project, my
dear friend, is brought to a point so long desired. Burr guarantees
the result with his life and honor, with the lives, and honor, and the
fortunes of hundreds of the best blood of our country.
“Burr’s plan of operation is to move down rapidly from the falls on the
15th of November, with the first five hundred or one thousand men, in
light boats now constructing for that purpose, to be at Natchez between
the 5th and 15th of December, there to meet you, there to determine
whether it will be expedient, in the first instance, to seize on, or
pass by, Baton Rouge [then held by the Spaniards]. On receipt of this
send Burr an answer. Draw on Burr for all expenses, etc. The people of
the country to which we are going are prepared to receive us; their
agents, now with Burr, say that if we will protect their religion, and
will not subject them to foreign Power, that in three weeks, all will
be settled. The gods invite us to glory and fortune: it remains to be
seen whether we deserve the boon.
“The bearer of this goes express to you; he will hand a formal letter
of introduction to you, from Burr; he is a man of inviolable honor and
perfect discretion, formed to execute rather than project, capable of
relating facts with fidelity, and incapable of relating them otherwise.
He is thoroughly informed of the plans and intentions of ------, and
will disclose to you, as far as you inquire, and no further. He has
imbibed a reverence for your character, and may be embarrassed in your
presence; put him at ease, and he will satisfy you.”
To make doubly sure the letter would reach Wilkinson Burr made two
copies of it, one to go overland and the other by sea. Bearer of the
overland message was Samuel Swartwout, who will be recalled as Burr’s
companion on the trip south following the duel. Bearer of the copy of
the letter going by sea was one Dr. Justus Eric Bollman, a German and a
soldier of fortune. Bollman was distinguished chiefly for a desperate
attempt at rescuing General Lafayette from imprisonment in Austria
during the French Revolution.
Swartwout accomplished his mission first, coming up with Wilkinson
in camp at Natchitoches in northern Louisiana, where Wilkinson was
standing guard against a threatened crossing by the Spaniards of the
Sabine River, boundary between Louisiana and the present State of
Texas. Bollman presented himself to Wilkinson shortly thereafter in New
Orleans.
But, so President Jefferson’s message to Congress declared, the
indignant and patriotic Wilkinson, instead of listening to Burr’s
blandishments and preparing to take second rank on the treasonable
expedition of which the letter treated, sent a warning to Washington,
arrested both Swartwout and Bollman, and packed them both off to the
capital charged with high misdemeanor and treason. On their arrival
in Washington, in order to hold them, William B. Giles, Jefferson’s
leader in the Senate, got a bill through that body suspending the writ
of habeas corpus. But the House refused to go along. The Chief Justice
then issued the writ, heard the charges, and released the two men,
declaring that charges had not been proved. The uncooperative behavior
of the Chief Justice on this occasion did not improve Mr. Jefferson’s
opinion of him.
Equal in importance with Burr’s letter was the affidavit of William
Eaton. A Connecticut Yankee, Eaton first appeared on the public scene
as a captain in the United States Army. In 1804 he was serving as
United States Consul at Tunis. It was a time when the infant United
States Navy was waging sporadic warfare with the Barbary States.
Commodore Samuel Barron, commanding our Mediterranean fleet, dispatched
Eaton on a mission to Alexandria where one Hamet, former Pasha of
Tripoli, had taken refuge after being driven from his throne by his
elder brother. Eaton’s mission was to restore Hamet to the throne.
Assembling a tatterdemalion force of Greeks, Italians, and Arabs to the
number of 500, Eaton led them on a gruelling march across the Libyan
desert to Derne. The expedition made the 600 miles in fifty days and on
top of it assaulted and captured the city.
But here the United States policy changed. New negotiations led to
recognition of the usurping brother. This altered state of affairs
caused a break between Barron and Eaton and the latter returned home,
indignant over the manner in which he had been treated and demanding
from an indifferent Congress remuneration for his services. Through his
military exploits he had acquired the title of General, but he held no
such commission from the United States Government.
Where a man had a grudge against the Government there repeatedly was
found the trail of Burr. So it was in the case of Eaton. In the winter
of 1805–06, following Burr’s return from his first trip to the West,
he and Eaton lived in the same boarding house in Washington and were
much in each other’s company. According to Eaton’s affidavit, Burr
told him he was organizing a military expedition against the Spanish
provinces on the southwestern frontier, giving him to understand he was
acting under the authority of the Federal Government. Eaton recalled
that at this time the controversies with Spain and the tenor of the
President’s message to Congress led to the conclusion that war with
that country was imminent. Having lately returned from Africa, he was
unaware, he said, of any suspicions against Burr and did not question
his patriotism. This, Eaton explained, was why at first he consented
to embark on the enterprise and pledged himself to Colonel Burr’s
confidence.
But, Eaton continued, as time passed certain indistinct expressions
and innuendoes aroused his suspicions that Burr had other projects
in mind. He noted in particular that Burr was critical of the
administration, accusing it of want of character, energy, and
gratitude. Eaton suspected Burr of arousing his resentment by dilating
on the harsh treatment Eaton had received on the floor of Congress in
connection with his African expedition, and the delay in adjusting his
financial claims against the United States.
By this time, declared Eaton, he had begun to suspect that Burr’s
expedition was unlawful, but he had pretended to be impressed in
order to draw Burr out. It was then, he said, that Burr laid open his
proposal of revolutionizing the territory west of the Alleghenies and
establishing an independent empire there. New Orleans, said Eaton, was
to be the capital and Burr was to be the chief, organizing a military
force on the Mississippi and carrying the conquest to Mexico.
Eaton said he protested that the western people were attached to
the present administration and that Burr would be opposed in his
designs by the regular army of the United States stationed on the
frontier. To this, he said, Burr replied that he had the preceding
season made a tour through the country and attached to his person the
most distinguished citizens of Tennessee, Kentucky and the Orleans
territory; that he had inexhaustible resources and funds; that the
United States Army would act with him; that he would be reinforced
by from 10,000 to 12,000 men from the aforementioned states and
territories; and that he had powerful agents in the Spanish territory.
Eaton said he told Burr he had known Wilkinson during the Revolution
and ventured the opinion that he would act as lieutenant to no man in
existence. Burr assured him he was wrong and led him to believe that
the plan of the revolution had been made in concert with Wilkinson.
The affidavit then mentioned a plan for overthrowing the Government
in Washington, assassinating the President, and revolutionizing the
eastern states.
Eaton said Burr had given him nothing on paper, nor did he know of
anybody to whom Burr had made similar advances. It was, therefore, his
word against Burr’s. He did not dare place his testimony in the balance
against the weight of Burr’s character, fearing that Burr would turn
the tables on him. He was therefore uncertain which way to proceed.
He at last decided that the best way to save the country was to get
Burr out of it. That was why he approached President Jefferson with
a suggestion that Burr be sent abroad as an ambassador. He mentioned
Paris, London, or Madrid. The President, according to Eaton, signified
that the trust was too important and expressed something like doubt
about the integrity of Burr.
Perceiving that the subject was distasteful to the President, said
Eaton, and to impress him with the danger, he told him there would
be insurrection in the Mississippi area within eighteen months. He
quoted the President as replying that he had too much confidence in the
integrity and attachment to the Union of the citizens of that country
to admit any apprehension of that kind. Such, in substance, was Eaton’s
affidavit.
Mr. Wickham was the first lawyer of the defense to open the attack on
it. There was, he declared, no evidence of treason in it. As for an
attack on the Spanish settlement, if Burr had such an intention it was
not only innocent but meritorious. He reminded the court that at that
time there were strong circumstances pointing to a war with Spain and
he cited the President’s message at the opening of the Ninth Congress
in December, 1805, in which the provocations were mentioned.
Wickham was followed by his colleague Randolph who, in a reminiscent
mood, stated that though he had long been conversant with criminal
jurisprudence, never before had he heard of anybody attempting to prove
an overt act of treason from a supposed intention.
Colonel Burr now made clear his intention to act as his own counsel in
the trial. Addressing the court he ventured the opinion that there was
no cause for all this concern. He charged that Wilkinson had alarmed
the President and that the President had alarmed the people. When he,
Burr, heard that charges were being preferred against him while he was
in the West, had he not voluntarily hastened to meet investigation both
in Kentucky and Tennessee? Yes, he had fled later, but only after he
had learned that military orders had been issued to seize his person
and his property. He protested that there was no proof of his guilt
other than the affidavits of Wilkinson and Eaton. As for these they
were “abounding in crudities and absurdities.”
Attorney General Rodney next addressed the court. He had, he said,
looked upon Colonel Burr as his friend and, in fact, had received
him in his house. But now the chain of circumstances showed without
doubt that he was guilty. He thought that the evidence presented was
sufficient for commitment. It was his contention that for a mere
commitment no such complete testimony was needed as in an actual
trial. This brief comment from the Attorney General proved to be the
last words he was to utter in the case. In a day’s time illness in
his family--or such was the excuse given--took him from Richmond and
the trial and he did not return. Whatever part he played in it was
performed in Washington.
Thereafter the burden of the prosecution fell on the conscientious and
hard-working Hay. The District Attorney, too, had had family sorrow.
A week before Burr’s arrival in Richmond he lost his wife, Rebecca, a
young woman of 25 years. But the bereaved husband had little time for
mourning. Nor did he allow his grief to interfere with the performance
of his official task with all the effectiveness his limited talents
could command.
When the arguments were over Judge Marshall introduced a procedure he
was to follow steadfastly throughout the trial. He adjourned court
and promised that he would deliver his opinion the following day. He
was as good as his word. The opinion was in writing. He had had the
evening before in which to review the arguments and from them arrive
at his own conclusions. Like all his opinions, this one was closely
reasoned and carefully drawn. Nobody was going to be given grounds for
charging him with such arbitrary and high-handed behavior on the bench
as had brought about the impeachment of Justice Chase. Again a numerous
audience was on hand to hear what the Chief Justice had to say.
Judge Marshall quoted Blackstone to the effect that only if it was
manifest that no crime had been committed or that the suspicion was
wholly groundless would it be lawful to discharge a prisoner. Otherwise
he must be committed to prison or released on bail. By that, he
continued, he did not mean to say that the “hand of malignity may grasp
any individual against whom its hate may be directed.” His audience
pricked up their ears, especially those who were anxious to catch
the Chief Justice in a false step. Was not the hand of malignity to
which he referred that of President Jefferson? It sounded suspiciously
like it. One man who put that interpretation on it informed the Chief
Justice who, immediately after adjournment, called to the bench those
who were reporting the trial and stated explicitly that the observation
had no allusion to the Government’s conduct in the case before him.
The Chief Justice’s conclusion was that enough evidence had been
presented to warrant a commitment for a high misdemeanor. But a
commitment for treason was a different matter. He pointed out that the
assembling of forces to levy war was a visible transaction. Numbers
must witness it. If, therefore, in November or December last a body of
troops had been assembled in Ohio, it was impossible to suppose that
affidavits establishing the fact could not have been obtained by the
last of March. The evidence that had been given proved the loyalty of
the western people to their eastern brethren. How strange then that no
man could be found who would voluntarily depose that a body of troops
had actually assembled for an object which had been detested by these
people. He concluded: “I cannot doubt that means to obtain information
have been taken on the part of the prosecution; if it existed, I cannot
doubt the practicability of obtaining it; and its non-production, at
this late hour, does not, in my opinion, leave me at liberty to give
to those suspicions which grow out of other circumstances, the weight
to which at an earlier day they might have been entitled. I shall not,
therefore, insert in the commitment the charge of high treason.”
On the commitment on the charge of high misdemeanor the Chief Justice
set bail at $10,000. Hay thought it too low and said so. Wickham
commented that Burr had few friends in Richmond. What is more he had
heard several gentlemen of great respectability say they were unwilling
to appear as bail for him for fear of being regarded as enemies of
their country. The defense was careful to lose no opportunity to
emphasize the popular prejudice against their client.
Nevertheless, in spite of Mr. Wickham’s concern, sureties were found
and Colonel Burr was released for his appearance at the next meeting
of the Court of Appeals for the Virginia District on May 22. In the
initial skirmish the prosecution had met with a setback. The prisoner
was not to be treated as a man who had tried to destroy the nation and
who might still be dangerous if permitted to roam at large.
From the White House the proceedings in Richmond were being closely
watched. Details were reported as fast as messengers on horseback
could carry dispatches from Attorney Hay to President Jefferson. The
President was hardly surprised at the direction events were taking.
The Chief Justice had been a thorn in the flesh from the moment Mr.
Jefferson took office. His latest ruling was strictly according to
form. Well, some day he would overstep the mark. The President must be
on the alert to seize the opportunity when that day came.
_Chapter_ IV
To Thomas Jefferson and John Marshall history has assigned positions
in the first rank of the nation’s great men. Their backgrounds show a
remarkable similarity. Both were Virginians, Jefferson being twelve
years senior to Marshall. Both were the sons of frontiersmen, Peter
Jefferson having established himself in Albemarle County and Thomas
Marshall in Fauquier County, a short distance to the north, when those
counties were still outposts of the Virginia colony. Both were tall and
loose-jointed, but where Marshall was dark, Jefferson was sandy-haired
and freckled. Jefferson’s indifference to dress matched that of
Marshall.
They were, according to Virginia’s intricate way of determining
relationship, “third cousins once removed,” being descended through
their mothers from the famous William Randolph and Mary Isham. Both
were educated to the law and both were students of Virginia’s most
distinguished law teacher, Chancellor George Wythe, though Marshall’s
instruction under him was only for a few weeks. In short there was
every reason why these two highly gifted Virginia cousins should share
the same attitudes and prejudices and hold the same opinions on the
great issues of the day.
But fate had decreed otherwise. Early in their relationship distrust
and antagonism developed. Marshall’s biographer Beveridge traces it to
the harsh days of the American Revolution.
The Marshalls, father and son, were warriors who volunteered their
services on the outbreak of hostilities. They fought at Great Bridge,
the first engagement of the Revolution on Virginia soil. They later
were present at the battles of Brandywine and Germantown. John was at
Valley Forge and by then promoted to captain. According to all accounts
he was a shining light in that winter of gloom, spreading good cheer
through the camp and idolized by his men. In the next campaign he
fought at Monmouth and Stony Point.
During the ordeal of Valley Forge General Washington is said once to
have inquired, “Where is Jefferson?” Jefferson had, of course, been
serving his country in a different way as a member of the Continental
Congress. In retrospect it is obvious that he served it better as
author of the Declaration of Independence than he might have as a
mediocre soldier. Allowances for Jefferson’s military ineptitude are
easy to make now in the light of his other great accomplishments; they
were not so easily made by those of his contemporaries who had to do
the fighting.
Whatever prejudices the Revolution may have sparked between the two
cousins were fanned into flame by the subsequent events which shaped
their careers. Jefferson went to France as American Minister where his
theory of the liberty and equality of men pronounced in the Declaration
found startling application in the revolution taking place there. Very
naturally Jefferson’s sympathy was with the revolutionists.
Meanwhile at home the masses of the people were reveling in their
new-found freedom, ignoring their responsibilities as citizens,
disregarding property rights, refusing to meet their debts, and showing
so little willingness to join in united action that many thoughtful men
feared for the survival of the new nation.
Among the latter was John Marshall. By now he was married to Mary
Ambler, daughter of Jacquelin Ambler, state treasurer, who had moved
with the capital when in 1779 Governor Jefferson transferred it from
Williamsburg to Richmond. The elder Ambler died some years before
1807 but the fashionable quarter of Shockoe Hill was dominated by his
children and relatives. The Marshalls occupied a charming brick house
which John Marshall built for his wife in 1788. He enjoyed a lucrative
law practice, his clients being for the most part the well-to-do
merchants and members of the creditor class. Marshall’s interests
and his sympathies turned in their direction. He himself came to the
conclusion that the country’s only salvation rested in a strong central
government. He shared this opinion with Washington and Alexander
Hamilton and the other conservatives who sought to replace the loose
and ineffective confederation with a compact and articulate union.
These men and others with kindred ideas evolved as Federalists.
Jefferson returned home from France to join Washington’s Cabinet as
Secretary of State. It soon became apparent that an ideological gulf
separated him from his colleagues. There had been political factions
before but now for the first time the two divergent attitudes toward
government became so clear-cut that two political parties were the
inevitable outcome. Jefferson assumed the leadership of the party of
revolt against the Federalist domination that had developed during
Washington’s administration and continued under that of John Adams. The
issue reached a climax with the victory of the Jeffersonian Republicans
in the presidential election of 1800 and Jefferson’s elevation to the
presidency.
Defeat threw the Federalists into a panic. Already the civilized
world was shaken to its depths by the events in France where the
original respectable movement to suppress tyranny and substitute for
it democratic institutions had degenerated into a reign of terror,
culminating in the execution of the king and queen. And now the
government of the United States, insecure at best, was about to be
placed in the hands of a man who approved the French Revolution and in
other ways had revealed his indifference to established institutions.
As the Federalists saw it, in a few weeks the House of Representatives
would be “Jacobin” while in a few years the Senate too would be in the
hands of the radicals.
From the Federalist point of view one hope remained. Thus far not a
single Republican tainted the national judiciary. In his message to
the expiring Congress on December 3, 1800, President Adams urged its
expansion. The message, incidentally, though bearing the signature of
the President had been written by Secretary of State Marshall. The
Federalist Congress, following the advice of the President, passed
the bill which increased the number of district judges and created
an entirely new system of circuit courts with three judges to each
circuit. The Republicans, perhaps because they thought the Federalists
would not have time to make use of the measure before leaving office,
put up only a mild opposition. They reckoned without the fierce
determination of the rival party to seize this last opportunity to curb
the Republican President and Congress.
Meanwhile Marshall had been named Chief Justice, and until the
Federalists went out of power he was to have the distinction of holding
at one and the same time the offices of Chief Justice and Secretary
of State. So it came about that far into the night on the eve of
Jefferson’s inauguration President Adams nominated from his own party
judges and other court officers created under the new law, the judges
to hold their seats for life. As fast as he nominated them the Senate
confirmed them. Then John Marshall, in his capacity as Secretary of
State, signed and sealed the commissions of the Federalists who were to
form the officers and rank and file of the judiciary army which he in
his capacity as Chief Justice was to lead!
Marshall’s law practice and his political prejudices might throw him
with the wealthy elements of Richmond society, but neither these nor
his growing importance in the world relieved him of the common touch.
His simplicity of manner, his carelessness about dress that bordered on
slovenliness, his humor and good fellowship appealed to all classes.
It was the custom in those days for the man of the household to do the
marketing. Mr. Marshall was a familiar figure in the early morning at
the market at 17th and Main streets where he bartered with the country
folk who brought in their fresh vegetables, meats, and other supplies.
His market basket filled, he would, like other gentlemen, stop in at
the booth of Joseph Darmstadt, the Hessian, who kept boiling hot
coffee on the stove to which customers were free to help themselves,
and there gossip over the affairs of the day. Darmstadt had valuable
connections with the Pennsylvania Dutch farmers who had drifted into
the Valley of Virginia and brought choice provisions to market, making
the long trip in Conestoga wagons. Or Mr. Marshall might be seen on
horseback, a bag of clover resting on the pommel of his saddle, setting
out for a farm he owned on the outskirts of the town.
Many of his political opponents--among them Patrick Henry and George
Mason--held him in deep affection. The sad exception was Jefferson.
With all his democratic principles, Jefferson was not a good mixer.
He had an innate reserve that made ordinary men self-conscious in
his company. When reports reached him that John Marshall was the
most popular man in Richmond, he could not contain himself. Was not
Marshall, by thus cultivating the good will of the masses, poaching
on territory Jefferson regarded as peculiarly his own? In the autumn
of 1795 he wrote to his friend Madison: “His lax lounging manners
have made him popular with the bulk of the people in Richmond; and
a profound hypocrisy with many thinking men of our own country. But
having come forth in the plenitude of his English principles the latter
will see to it that it is high time to make him known.” Anger did not
help Jefferson’s clarity of expression but his meaning is obvious.
Marshall, as Jefferson saw him, was a hypocrite.
Yet in spite of his dislike for Marshall, Jefferson was careful to
observe the amenities. When Marshall returned from a mission to France
in 1797, unsuccessful as the mission had been, he was given an ovation
on his arrival in Philadelphia, then the seat of government, and a
public dinner was arranged in his honor. Jefferson was in Philadelphia
at the time and promptly called on Marshall. Not finding him at home
he left a note expressing disappointment at not seeing him and regret
that a previous engagement would prevent his attending the dinner.
Marshall, not to be outdone in courtesy, sat down next day and penned a
reply stating that “J. Marshall begs leave to accompany his respectful
compliments to Mr. Jefferson with assurance of the regret he feels at
being absent when Mr. Jefferson did him the honor to call on him. J.
Marshall is extremely sensible of the obliging expression contained in
the polite billet of yesterday.”
These sentiments were hardly in keeping with “J. Marshall’s” true
feelings. For once he was not exercising that candor which his friends
considered his strongest attribute. For if Jefferson distrusted
Marshall, that distrust was in no measure greater than Marshall’s
distrust of Jefferson. When in the presidential election of 1800
Jefferson and Burr received an equal number of electoral votes and
the election was thrown into the House of Representatives, Hamilton,
displaying his usual animosity toward Burr, appealed to Marshall,
then a member of the House from Virginia, to support Jefferson. To
Hamilton’s appeal Marshall replied on New Year’s Day, 1801: “To Mr.
Jefferson whose political character is better known to me than that of
Mr. Burr, I have felt insuperable objections. His foreign prejudices
seem to me totally to unfit him for the chief magistracy of the nation
which cannot indulge those prejudices without sustaining deep and
permanent injury. Your representation of Mr. Burr, with whom I am
totally unacquainted, shows that from him still greater danger than
even from Mr. Jefferson may be apprehended. But I can take no part in
the business. I cannot bring myself to aid Mr. Jefferson.”
Here then was Jefferson, afraid that Marshall and his followers would
turn the nation’s government into an hereditary monarchy; and Marshall
equally afraid that Jefferson and his party, unless restrained,
would soon reduce the nation to anarchy. To such absurd extremes can
political partisanship drive otherwise highly intelligent men.
In spite of his anxieties and misgivings, Marshall, in his capacity
as Chief Justice, performed his official duty in administering the
oath of office to President Jefferson. How painful that duty must have
been is revealed by a letter he wrote on the same day to his friend
Charles Cotesworth Pinckney, of South Carolina: “The Democrats are
divided into speculative theorists and absolute terrorists. With the
latter I am disposed to class Mr. Jefferson. If he ranges himself with
them it is not difficult to foresee that much difficulty is in store
for the country--if he does not, they will soon be his enemies and
calumniators.” Strong words for the Chief Justice to use against the
President of the United States so soon after the Chief Justice had
administered the oath to the President.
During the first nine months of his administration Jefferson had
sufficient evidence of the animosity of the Federal bench, largely
directed by Marshall, to write to a friend: “The Federalists have
retired into the judiciary as a stronghold ... and from that battery
all the works of republicanism are to be broken down and erased.”
The Republicans were not slow in taking up the Federalist challenge.
Their first major offensive was the impeachment of Justice Chase.
The blustering, choleric Chase, with his violent partisan comments
from the bench, had provided just cause for complaint, Heaven knows.
Yet his trial by the Senate and his exoneration from the charges
leveled at him by the House indicated that impeachment was a dull
and unreliable weapon. The verdict left Jefferson more than ever
convinced that a grave error had been committed in the Constitution
by granting to the judiciary authority equal to that of the executive
and legislative branches. Marshall’s epochal decision in the case of
Marbury versus Madison, confirming the Supreme Court’s right to pass on
the constitutionality of laws enacted by Congress, strengthened that
belief. Nowhere was the presumption of the judiciary better exemplified
than in the person and actions of John Marshall. Jefferson’s unerring
political instinct told him that the quickest and surest way to cut
the judiciary down to size was to get rid of Marshall, either by
impeachment or by amending the Constitution to make Federal judges
removable from office at the will of the President and Congress.
But a case must first be made against Marshall. The Burr trial
presented a perfect opportunity. Of this the President and the Chief
Justice were both well aware, and the party leaders no less than the
President and the Chief Justice. So it was that, at Richmond in the
spring of 1807, Aaron Burr did not stand at the bar alone. The Chief
Justice also was on trial.
President Jefferson had taken his time in acting against the alleged
conspirators. He had been waiting for tangible evidence that would
stand up in a court of law. Once he was convinced that he had it he
moved with dispatch and determination to find Burr guilty. Otherwise,
after the unequivocal charge of “guilt beyond question” proclaimed
to the nation in his special message to Congress, he and his
administration would be made to look ridiculous. If the Chief Justice
cooperated to this end, all well and good. If on the contrary, as
Jefferson foresaw, the Chief Justice raised obstructions in favor of
the prisoner, he would do well to look to his own head. It was already
being rumored that the President was so set on getting rid of Marshall,
and so confident that doing so was a mere matter of time, that he had
already chosen a successor in Spencer Roane, another Virginian, but one
consecrated to the cause of Republicanism.
And here at the very outset of the trial the Chief Justice was
prejudging the charge of treason by stating that if there had been
treason there must by now be evidence of it. But no evidence had been
produced before the court. In a letter to his friend Senator Giles, the
President unbosomed himself on the unreasonableness of the decision.
“In what terms of decency can we speak of this?” he asked. “As if an
express could go to Natchez, or the mouth of the Cumberland and return
in five weeks, to do which has never taken less than twelve!... But
all the principles of law are to be perverted which would bear on the
favorite offenders who endeavor to overturn this odious republic!...
The nation will judge both the offender and the judges for themselves.
If a member of the Executive or Legislative does wrong, the day is
never far distant when the people will remove him. They will see
then and amend the error in our Constitution which makes any branch
independent of the nation.... If their protection of Burr produces this
amendment, it will do more good than condemnation would have done ...
and if his punishment can be commuted now for a useful amendment of
the Constitution, I shall rejoice in it.”
If letting Burr go scot free resulted in checkmating Marshall and
putting the judiciary in its place, Mr. Jefferson was willing to pay
even that price. As for the lack of witnesses the Government, if the
Chief Justice would only give it reasonable time, would take care
of that. From Washington, Attorney General Rodney sent out printed
circulars for wide distribution throughout the western country urging
every good citizen to step up and communicate to the Government any
information which might “contribute to the general welfare.” The
allusion was obvious. A deputy marshal and special messenger were
dispatched to Wood County, Virginia, to round up witnesses from the
vicinity of Blennerhassett Island where the overt act of treason was
alleged to have occurred.
Secretary of State Madison and the Attorney General solicited the help
of General Andrew Jackson to the same end in Tennessee. Wilkinson, in
New Orleans, sent agents in search of information through Louisiana and
Mississippi. This governmental dragnet brought results. Witnesses and
depositions combined reached an impressive total of close to 150.
Whether they would all be heard was a different matter. They still
had to pass an exacting test contrived by counsel for the defense,
sufficient to convince the Chief Justice that the admission of their
evidence was strictly within the letter of the law. Let the public
make whatever deductions it pleased about the trial at Richmond, John
Marshall did not intend to deviate one inch from what he considered to
be the sacred duties of a judge in the execution of justice.
_Chapter_ V
Colonel Burr in a letter to Theodosia complained: “The Democratic
papers teem with abuse against me and my counsel, and even against
the Chief Justice. Nothing is left undone or unsaid which can tend to
prejudice the public mind, and produce a conviction without evidence.”
His complaint must have included the Richmond _Enquirer_ whose
editor, Thomas Ritchie, was coming to be recognized as one of the
leading Republican editors of the nation. Ritchie had been born in
Tappahannock, Virginia, when that town was a thriving port on the
Rappahannock River. His father, Archibald Ritchie, was a Scottish
merchant who was charged with being a Tory during the Revolutionary
War. His mother was Mary Roane and through her he was related to the
best families in that section. Archibald Ritchie died when Thomas was
still young and the widowed mother put the lad to the study of law with
her kinsman Spencer Roane, the rising lawyer and ardent Republican who,
as has been mentioned, was believed to be Jefferson’s choice for Chief
Justice if disaster should overtake John Marshall.
But Thomas did not like the law. He switched to medicine only to
discover that he liked that even less. A spell of school teaching,
followed by one of bad health, brought him to Richmond where he opened
a small bookstore. Then, at the urging of Thomas Jefferson and his
cousin Spencer Roane, he established there a newspaper supporting the
Republican cause. The first issue of the bi-weekly _Enquirer_ appeared
on May 9, 1804. It was kept alive by party patronage in the rarefied
atmosphere of Richmond where most of the prosperous people who could
afford the luxury of a $5 per annum subscription were Federalists and
subscribed to _The Gazette_.
Ritchie was by no means a party hack. If he thought the administration
in Washington was at fault he said so. In fact, his occasional
outbursts of independence provoked from that indefatigable party
regular, William Duane of the Philadelphia _Aurora_, the charge of
being “a wolf in sheep’s cloth.”
By 1807 Ritchie was firmly established in the editor’s chair and also
in Richmond society to which his birth entitled him. In that year he
married Isabella, daughter of Dr. William Foushee, first mayor of
Richmond and one of the leading doctors. Isabella, before her career
as mother ended, was to bear him twelve children, threatening the
supremacy of Eliza Wickham who had a brood of seventeen.
Emaciated, sallow, long-nosed, thin-lipped, and unsmiling, Thomas
Ritchie looked the part of a crusader. In his treatment of Burr in the
columns of _The Enquirer_ he was regular enough to have met the most
exacting specifications of Duane. It is true that a few days after
Colonel Burr’s arrival in Richmond _The Enquirer_ piously declared:
“It is difficult for us to distinguish all those cases in which we
ought to speak from all those where we should be silent. Perhaps the
editor of the _National Intelligencer_ has nearly struck the proper
line of discrimination: like him we shall abstain from all ‘impassioned
representations’--and like him--we shall ‘unhesitatingly give all new
facts as they offer themselves’ without any regard to the party whom
they favor.”
Contrary to this impressive declaration of impartiality _The Enquirer_
had not hitherto shown itself altogether free from bias. On March 13,
for example, it had reprinted from the _Intelligencer_, that other
vehement mouthpiece of the administration which was published in
Washington, the statement: “That Aaron Burr has formed a treasonable
plan leveled at the destruction of every ingredient of our felicity
cannot be disputed.”
On March 24, two days before the arrival of the Colonel in Richmond,
_The Enquirer_ again quoted the _Intelligencer_: “Let us not hereafter
hear it said that a Republican government is deficient in vigilance....
That it [the conspiracy] was deliberately formed we have reason to
believe from the character of its author, and from the deposition of
General Eaton, which shows that his mind had long dwelt upon it and had
contemplated it in its various aspects.”
Nor did _The Enquirer_ let its impartiality go to the point of
withholding from its columns a dispatch from Baltimore quoting an
extract from a letter from a “gentleman of unquestionable character,”
dated “New Orleans, February 17” and declaring: “I must acknowledge
that Burr is the most consummate scoundrel and artful liar that I ever
had an acquaintance with.” _The Enquirer_ followed this with a squib
from the Philadelphia _Aurora_, which, under the heading “An Outlaw
Emperor,” said in part: “The Federalists have now an opportunity of
exhibiting new evidence of their sympathy and attachment to traitors.”
On the other hand the Federalist press could not boast that its hands
were altogether clean. As the trial got under way, _The Gazette_,
speaking for the conservative element, presented in its columns
an extract from a letter allegedly received from Caroline County,
between Richmond and Washington--no doubt penned by a gentleman of
as “unquestionable character” as _The Enquirer_’s gentleman from New
Orleans--whose subtle aim was to discredit the Government’s witnesses.
It stated that a man on his way to Richmond as a witness for Mr.
Jefferson against Colonel Burr had been detected in an attempt to
start an insurrection among the Negro slaves in that county. Since the
Virginia countryside was still in a state of alarm over an abortive
uprising led by a slave named General Israel several years before, no
more serious charge against a witness could have been made.
That, warned _The Gazette_, “ought to make the court and jury
extremely cautious in giving credence to witnesses on both sides until
characters are examined. Such a man would not scruple to swear away a
man’s life for a few dollars.”
In announcing his policy of impartiality Editor Ritchie had reserved
to himself the right “unhesitatingly to give all the new facts as they
offer themselves.” While Colonel Burr was free on bail an opportunity
presented itself such as would delight the heart of any editor.
Richmonders in those days lived well. The farms outside the city
provided a varied supply of meats, poultry, vegetables and fruits in
season. The town was sufficiently close to salt water to be supplied
with oysters and other seafood in spite of primitive methods of
refrigeration. Mrs. David Randolph, who conducted a fashionable
boardinghouse and was famous as cook and provider, was credited
with having devised a cold box that served as a model for the first
refrigerator in this country. Ships from abroad that dropped anchor
at City Point, below the town, brought in consignments of the finest
wines that, along with the rest of their cargo, were poled on flatboats
upstream to the city market. In the spring of the year the James was
alive with shad which came up to fresh water to spawn. For a naturally
hospitable people the temptation to entertain was overwhelming.
A popular custom among the members of the legal profession was “lawyer
dinners” at which the lights of bench and bar sat down together to
partake of good food and drink and to engage in sparkling conversation.
In this form of entertainment John Wickham excelled. He was among the
élite who dwelt on Shockoe Hill and no household there enjoyed a higher
reputation for serving the best of food. None boasted more capable
servants than Bob, the butler, and Bob’s wife, the cook, who, under
the guidance of Eliza Wickham, could prepare the most complicated
dishes. No one, except for the most impelling reason, would decline an
invitation to attend one of the Wickham dinners.
During the more than seven weeks between Colonel Burr’s commitment and
the convening of the court on May 22, time was hanging heavy on the
hands of the principals. It was not surprising that Mr. Wickham should
have seized the opportunity to give a lawyer dinner and to introduce
his distinguished client to this delightful local custom.
No one enjoyed a lawyer dinner more than the Chief Justice, whose wit
and good humor made him a welcome guest. His house was within a stone’s
throw of Mr. Wickham’s. He and the Chief Justice were good friends as
well as neighbors and the Chief Justice had often been a guest of Mr.
Wickham. What then was more natural than that Mr. Wickham should extend
an invitation to Judge Marshall? Judge Marshall accepted the invitation
and attended the dinner.
What none of them seems to have grasped was the obvious impropriety
of the judge who was to preside at the trial appearing as a guest at
a dinner given by the leading lawyer for the defense at which the
defendant also was a guest!
The significance of the incident, however, was not lost on Editor
Ritchie. The story of the dinner was soon public property. There
appears to have been no attempt to conceal it. So for the issue of _The
Enquirer_ of Friday morning, April 10, Mr. Ritchie did not have to
rack his brains to find an idea suitable for his acid pen. This issue
contained an article signed “A Stranger from the Country.” It did not
require a gift of clairvoyance to perceive that the “Stranger” was none
other than Mr. Ritchie himself.
Said the Stranger: “In the _Argus_ of the 7th it is stated, and the
fact is now too notorious to be doubted, that the Chief Justice has
dined with Aaron Burr at Mr. Wickham’s, since he himself solemnly
decided that there was probable cause to believe Burr guilty of a high
misdemeanor against his country.”
The editor first directed his attack at Mr. Wickham. He alluded to the
old charge of Mr. Wickham having been a Tory in the Revolutionary War,
indifferent to the fact that the same charge had been made against
his own father. The people of Virginia, observed Mr. Ritchie, had
generously forgiven that error of his youth. But Mr. Wickham “should
modestly have refrained from recalling it to our recollection by
entertaining a suspected traitor to the Union as his guest, a report so
defamatory to his own fame.”
Having thus disposed of Mr. Wickham, the editor dipped his quill in
acid and set to work on Judge Marshall. “I have never,” he confessed,
“had any the least confidence in the political principles of the Chief
Justice. I have never discovered in his public (for I am ignorant of
his private) character, any of that noble candor which his friends
have made the theme of such extravagant eulogium. I cannot discern
in him, for my soul, those splendid and even Godlike talents, which
many of all parties ascribe to him, his book certainly displays none
such.” The allusion was to Judge Marshall’s recently published _Life of
Washington_.
The Stranger continued: “But I have always been informed, and until now
have believed, that he was a man of excellent judgment, most consummate
prudence, and of a deportment highly decorous and dignified. I took his
merits upon trust and bountifully gave him credit for good qualities
I find he does not possess.” Mr. Ritchie now shook an accusing finger
at Judge Marshall. “Let me inform the conscience of the Chief Justice
that the public do not view his dining with Burr as a circumstance as
trivial as he himself may incline to consider it.... We regard such
conduct as a willful prostration of the dignity of his own character,
and a wanton insult he might have spared his country.”
The writer then asked several questions that were on the tongues of
many Richmonders and which for years after the event were to provide
a subject for popular speculation. “I have searched in vain in my own
mind for some apology for conduct so grossly indecent.... Was the Chief
Justice ignorant that Burr was to be of the party to which Wickham
invited him? If so, what are we to think of Mr. Wickham’s delicacy
toward his friend? If so, why did not the judge leave the house as soon
as he discovered the indignity imposed upon him?”
Then came the peroration: “Has the Chief Justice forgotten or
neglected the maxim which is on the mouth of every tyro of the
law--that _the administrator of justice should not only be pure but
unsuspected_?”
The editor was not yet through with the Chief Justice. The incident
continued to be “news” around the city, for in the issue of _The
Enquirer_ of Tuesday, April 28, Ritchie returned to the subject. This
time his comments were contained in a column headed “Extract from a
letter written by a resident of Richmond Hill to his friend in the
country.” The Resident said he had been informed that Judge Marshall
had been apprised of the invitation to Colonel Burr. But, commented the
Resident, that could not have deprived him of his faculty of locomotion
“unless he had been touched by the transforming wand of Circe.”
Richmond was full of witty classicists. The reference to Circe’s wand,
which turned men into swine, and its application to the magical effect
of Mr. Wickham’s dinner on the Chief Justice could not have been lost
on them.
“But,” continued the Resident of Richmond Hill, “perhaps the
imagination of the judge was stronger than his appetite, and he had not
fortitude enough to tear himself away from the prospect before him. In
this the judge must pardon me if I am reminded of one of Goldsmith’s
dishes of tongue with a small garnish of brains. Many judges have been
condemned for the errors of the heart and the head, but I hope, dear
F., that the list is not enlarged by errors of the appetite.”
At that point Editor Ritchie brought his torment to a close. As for the
Chief Justice, he no doubt thought much, but he said not a word.
Professor George Tucker, Jefferson’s biographer, was present at the
dinner and an eyewitness to what went on there. He made a report on
what he saw, and what he did not see he said he got “from an authentic
source.” According to Professor Tucker’s version, a few days after
Colonel Burr had been released on bail Mr. Wickham invited him to dine
with a large party, among whom was the Chief Justice, a neighbor and
personal friend. But, on the morning of the dinner, realizing that
there might be some impropriety in the situation, Mr. Wickham informed
Judge Marshall that Colonel Burr would be among the guests.
Judge Marshall, however, being a man of delicate feeling, was afraid
that if he were to withdraw at that late hour, after having accepted
the invitation, he might be regarded as being unduly fastidious, and
that such action might be interpreted as a censure on his friend. So
he went to the dinner. “But,” testified Professor Tucker, “he had no
communication whatever with Burr, sat at the opposite end of the table,
and withdrew at an early hour after dinner.”
One version of the incident had it that the Chief Justice asked the
opinion of his beloved wife Molly and that she advised against his
going. But it was not like the judge to act contrary to her judgment.
At any rate, concludes Professor Tucker, no one was more sensible
of the indecorum than the Chief Justice, “but it was not an act of
deliberation, but merely inconsiderate.”
As to the effect of the incident on the subject of his biography
Professor Tucker remarks: “... it no doubt contributed to increase the
alarm and apprehension of Mr. Jefferson, always sufficiently disposed
to judge the Federal party with the same harshness that they judged
him.” And well he might. Contemporary comments make it clear that then,
as today, a judge dining in company with the man he is about to try and
at the home of the chief lawyer for the defense is, to say the least,
an inexcusable act of impropriety. As Editor Ritchie declared at the
time, it is not the sort of thing that would be expected of a man of
“excellent judgment, most consummate prudence, and of a deportment
highly decorous and dignified.”
_Chapter_ VI
On May 22 the Circuit Court of Appeals for the District of Virginia,
before which Aaron Burr was to face the charges of treason and high
misdemeanor, convened at 12:30 o’clock. But first a grand jury would
have to be picked and pass on the charges. Far ahead of the hour a
throng moved on the hall of the House of Delegates where the session
was to be held. It was a throng composed solely of men, for a court
of law in Virginia in those days was no place for a lady. Save in
Virginia’s great debate on the ratification of the Constitution in the
convention of 1788 Richmond had never before seen such a colorful and
distinguished assemblage.
For days strangers had been descending on the city from all sides
until the taverns and inns were filled to capacity. The hardier stock
from the western outposts of the Commonwealth did not even try to find
accommodations: they brought tents with them and camped on the low
ground beside the river. Some came out of curiosity, others were there
on court business. The administration’s offensive to counter the Chief
Justice’s demand for witnesses to Colonel Burr’s alleged criminalities,
directed by the Federal officials in the western country and spurred on
by the tireless efforts of the patriotic Wilkinson, had borne results.
It was estimated that persons concerned in the trial as counsel,
witnesses, and in other official capacities reached a grand total of
200.
So large was the crowd in the hall that lawyers of long service at
the local bar were forced out of their rightful places by officious
interlopers. This was no commonplace gathering. Here and there could
be distinguished men who had already made their names in history and
others who later were to become famous.
Anybody who was familiar with the Navy would have recognized two
veteran sailors, their faces bronzed by wind and sun and salt spray,
who had served their country well. They were Stephen Decatur the elder
and Thomas Truxtun, commodores both. Decatur boasted commendable
service as a privateersman in the Revolutionary War, but he was to
be overshadowed by his son of the same name. Truxtun, too, began his
naval career as a privateer in the struggle for independence. Later
he supervised the building of the frigate _Constellation_ and, on
her completion, took command and mustered her first crew. His latest
exploits were the capture of the frigate _L’Insurgente_ and the defeat
in battle of the frigate _La Vengeance_ in the quasi-war with France.
Present, too, was William B. Giles, loyal party man and President
Jefferson’s leader in the Senate. He was there, oddly enough, under a
summons of the United States Marshal for the Virginia District to be a
member of the panel from which the Grand Jury was to be chosen. Burr
thought it unreasonable, considering Giles’s politics. Soon he was
going to say so.
There, too, was “General” Eaton, author of the affidavit, now present
in person. The “Hero of Derne” wore a broad scarlet sash around his
middle which provided an exotic touch to his costume and a silent
rebuke to those who questioned his title and his fame. Eaton was a
great talker and, so it was said, when not attending court spent the
better part of his time at the tavern bars.
One might have marked a handsome young man with blue-gray eyes and a
head of abundant chestnut hair. He was a stranger to Richmond and his
accent betrayed a northern background. His name then meant nothing to
anybody save the little group of Burr’s friends who had come down from
New York to lend the prisoner moral support during the trial. This
was Washington Irving, lately returned from a European tour. He had
read law and been admitted to the New York bar; there was a report to
the effect that he had actually had a client. But even at this early
stage in his career he was more active with his pen. He and his older
brother William, and William’s brother-in-law James K. Paulding, had
just launched a sprightly magazine satirizing New York society under
the title of _Salmagundi_. Brother William and Paulding were having to
carry the burden while Washington was away.
William was a Republican, Washington’s sympathies were Federalist.
Fastidious by nature, Washington rose superior to the unpretentious
merchant family into which he had been born. The Irvings, on the other
hand, were immensely proud of their precocious son and all too glad
to give him a helping hand in his rise in the world. They liberally
financed the trip to Europe and it had been a great success. There
young Irving made the grand tour and lived in style in the Paris of
Napoleon’s empire. He had himself fitted out by the best tailor. He sat
for the rising young American painter, John Vanderlyn, then resident in
Paris. The work seems to have been undertaken out of the sheer delight
of the artist in having such a pleasing model.
On his travels Irving had made the acquaintance of two Virginia
gentlemen of the bluest blood, a Mercer of Fredericksburg and Joseph
Cabell, the Governor’s brother. He looked forward to renewing the
acquaintance on his trip south, particularly that with Cabell who had
just married Mary Walker Carter. Irving was told she was one of the
wealthiest young women in the state. The young New Yorker was there on
a literary retainer. It was said that some of Burr’s friends thought he
might help the cause through his writings. But if any of his accounts
of the trial ever got into the newspapers the record of them has been
lost.
A familiar figure to most of the Virginians in the hall was a tall,
gaunt man with absurdly long legs for so short a body who spoke in
a high falsetto voice. His leather breeches and his riding boots
identified him as a country squire. In actual fact he had ridden up
to Richmond from his estate, Bizarre, some sixty miles to the south.
This was the brilliant and eccentric John Randolph, master as well of
Roanoke. A horse, he once said, was to him what a ship was to a sailor.
A member of Congress, Randolph had acted none too astutely as one of
the Managers, or prosecutors, in the impeachment trial of Judge Chase.
He, too, had received a summons from the Marshal to appear for jury
duty. Like the Chief Justice and Edmund Randolph, he was a part of the
lengthened shadow of the prolific Turkey Island pair, William and Mary
Isham Randolph.