Burr

  Jefferson asked politely about my adventures at the south. I told him that during my short visit to East Florida it seemed plain to me that the people in that part of the world were ripe for liberation.

  Jefferson agreed. “Actually, we have liberated them by act of Congress and by executive order, but I fear nothing short of a war with Spain—or another purchase—can give us what is rightfully ours.”

  “The chances of a war seem excellent.”

  But Jefferson did not take the bait. Spoke instead of his difficulties with Bonaparte, of his difficulties with England. Then, as the fabulous confection was brought a second time by the French butler himself, Jefferson came to the point.

  “I have never known, Colonel, to what extent the nature of our Constitution interests you.”

  “Hamilton made much the same remark. He found me equivocal.”

  “I trust I resemble Hamilton only in this matter.” The smile was a swift baring of yellow teeth; the lips were gray tending to blue where most men are pink or red. I suppose it was the winter season that made him look like the last ashes of a once-fierce fire—soft, fine, white; no trace remaining of the foxy, red-haired man he had been save for the tarnished bronze of freckles.

  “I suppose, at heart, I have never regarded the Constitution as a finished work.”

  “We agree … we agree!” He was too agreeable.

  “It will evolve or be discarded.”

  “My own view …”

  “There are two weaknesses that I see in it. The first is the so-called inherent rights of any state to dissolve its bonds with the union.” I stopped.

  Jefferson looked startled … no, embarrassed. God alone knew what he had heard of my dealings with the New England Federalists, or with Merry. “Am I to understand, Colonel, that you do not accept as inherent the right of any state to secede?”

  “No, Sir, I do not.”

  “But of their own free will thirteen sovereign states came together and—”

  “I know the argument.” I was also damned if I would listen to Jefferson deliver this ancient lesson yet another time for my benefit. He was not rational on the subject. “I merely point out that no constitution can be effective if each state thinks that it has the right to nullify any federal law it pleases. I also think that as long as each state believes it has the right to secede, eventually one or more states will secede and there will be no United States.”

  “Yet we would all be American … cousins if not brothers.” The usual sentiment.

  “No doubt. But you have asked me my view of the Constitution and I must tell you what I think is one of its fatal weaknesses.”

  “I find it a peculiar strength.”

  “Then you no doubt agree with those New England Federalists who want to separate their states from the rest?”

  In the wrong—or on shaky ground—Jefferson was always imperturbable; at his best, in fact. He smiled. “I do get occasional reports about those gentlemen.” He was mild. “Madison tells me that I should be more concerned than I am. But I take the position that if Senator Pickering and the others can convince the people of their states to secede, then I will be the first to offer the hand of friendship to the new confederation.”

  “But of course you know that Pickering’s people cannot command a majority …”

  “I know so little of New England but admire so much what I do know.” Jefferson was like silk. I could see what a figure he must have cut in his ambassadorial days. “What is at issue is a principle. And I uphold the principle—each state can do as it likes in reference to the others.”

  “Then what about Louisiana? Suppose the people of New Orleans were to vote against union with us and to vote for a union with France or Spain, or for independence?”

  He was not prepared for this variation on an altogether familiar air. He was hesitant. “I should say that in the light of the purchase, and of the very different nature of the inhabitants—”

  The butler again entered (did Jefferson have a bell he could secretly push when he wanted a plate—or the subject—changed?) and poured the two of us champagne, a wine that had recently become popular at Washington City. The subject was changed. “You find a second fatal weakness in the Constitution?”

  “Not necessarily fatal.” But I was not about to blot further my copy-book and tell him that to me the second weakness is the imperial power assigned to the president. Instead I did the polite and necessary thing. I said what he wanted to hear. “The power of the judiciary.”

  The old face lit up. We were in agreement. We were friends. He could trust me. Out it poured, his fear of the courts, particularly of the Supreme Court in the hands of a monocrat like John Marshall. “The issue is so simple! Marshall believes that the courts have the right to set aside acts of Congress. This is intolerable! This strikes at the heart of our system of government! And, by Heaven, the fact that these judges can hold office for life—why, that sort of tenure invites tyranny!”

  I was told the plot in straightforward (for Jefferson) terms. Samuel Chase was a justice of the Supreme Court. He was a brilliant, savage old Tory given to frequent harangues from the bench against the Republicans and what he called their “mobocracy.” He had also taken pleasure in tormenting the journalist James Callender when he was still Jefferson’s creature. As a result, earlier that year, Judge Chase had been indicted (with Jefferson’s connivance) by the House of Representatives; he was charged with partisanship, unfairness, bad manners … for everything except what the Constitution said he could be indicted for, “high crimes and misdemeanours.” Now the Justice must be tried by the Senate and I, as that body’s presiding officer, would be in the position of judge. “Upon you, Colonel, falls the conduct of a trial which will determine the future course of our democracy.”

  “I shall be impartial, of course …”

  “Of course. But I hope you will be partial to the principle which is not so much Judge Chase as it is the necessary subservience of the judiciary to the legislative branch. We must establish the precedent that judges may be removed at the people’s pleasure.”

  “But the Constitution—”

  “May yet have to be amended. But for now we must establish the primacy of the legislature.”

  “So that you will be able, if necessary, to rid yourself of the Chief Justice.” This was the issue, bluntly put.

  “That will of course depend upon Mr. Marshall’s future behaviour.” The voice was soft and lulling. “I suspect that if we remove Justice Chase, Mr. Marshall will understand that we are serious and so order his future conduct. I have found that in this world a warning is often quite enough.”

  I allowed Jefferson to think that I favoured his so-called principle. Actually I have always preferred a judiciary independent of the other two branches of government; and though life tenure tends to promote and protect incompetence, it has the perfect virtue of placing beyond the vindictiveness of the sovereign and the passions of the mob the one high thoughtful court of the land.

  During the next three months, as the trial was made ready, I saw more of Jefferson than I had seen of him in the previous four years. We dined together at least twice a week. We often met privately. He was filled with suggestions for my conduct of the trial. He was somewhat fearful of John Randolph of Roanoke who was to handle the prosecution. “Poor Randolph is not himself these days …” Jefferson looked discomfited. Randolph had been shaken by certain land speculations which had gone wrong, and so was not at his best.

  “May I suggest that the self he normally is would not be of much use during a trial.” I was always amused by Randolph, a strange long-limbed man of indeterminate gender. Some thought him actually a woman who had chosen to be a man. Whatever he was, he had no sign of a beard; his curiously wrinkled skin was tallowy; his long beautiful fingers were always in motion when he spoke, while the voice was high but clear like that of a boy chorister. Leaning against a column in the House, wearing hunting clothes, drinking brandy given him by a slave, h
e would speak by the hour, fascinating all with his mockery and his wit, with a rhetoric that was unique in the republic’s history. In a way his public speaking was not unlike the private conversation of his cousin Jefferson, but where Jefferson in company glimmered with shrewd novelties and speculations John Randolph blazed in public like a display of Chinese fireworks. Incidentally, for some reason he was most proud of his reputed descent from Pocahontas.

  January 2, 1805, Judge Chase was summoned to the Senate chamber which I had transformed into a replica of Westminster at the time of the trial of Warren Hastings. I thought the setting should be impressive since, presently, we would decide what sort of republic we were to have. The walls were hung with crimson damask while to my left and right the senators sat in a row like judges. I built an extra gallery for distinguished visitors. I even ordered cleaned the flues of the two fireplaces and for the first time ever the chamber was warm without smoke.

  Just before Judge Chase appeared, I ordered the arm-chair that had been set out for him in the well of the chamber to be removed. “Let him find his own chair,” I said very plainly to an usher. Several Federalist senators hissed me.

  Judge Chase arrived, a tall commanding figure full of wrath. He had signed the Declaration of Independence. He had been appointed to the Supreme Court by George Washington. After Marshall, he was the most brilliant if the most cantankerous of the nation’s judges. He had, also, in a famous decision, enunciated the very principle that Jefferson wished to deny: “There are unwritten, inherent limitations on legislative powers.” He took himself and the issue most seriously.

  Judge Chase looked about him. Then he said, “Am I to stand, Sir?”

  “Bring the accused a chair since he does not wish to stand.” Later I told one of the Federalist senators that in the House of Lords the accused always presented himself on his knees. My comment was much resented, as I knew it would be: the Federalists now assumed that I was entirely Jefferson’s creature. He thought so, too.

  Judge Chase asked for more time to prepare his case. I told him that he must return on February 4.

  Jefferson was delighted. “They are already on the defensive. You have been masterful.”

  “Thank you, Sir.” I then told him that I wanted my stepson, J. B. Prevost, made judge of the superior court at New Orleans, that I wanted my brother-in-law James Brown made secretary of the Louisiana Territory, that I wanted General James Wilkinson made governor of the Louisiana Territory.

  “Is that all you would like?” Jefferson attempted irony in order to mask his shock. He was not used to such open bargaining.

  “If you could replace Governor Claiborne of the Orleans with me, my happiness would be complete. But I think that impossible.”

  Jefferson gave me one of his rare direct looks. Between us was yet another version of the famed copying machine.

  “I do not like to combine the military with the civilian authority …”

  “General Wilkinson is the most civilian general I have ever known, and I have known him a long time. He will be a credit to us at St. Louis.”

  “You want nothing for yourself?”

  “No, Sir.”

  “Where will you go after … your term of office expires?”

  “To the west. Kentucky perhaps. I own land out there.”

  “You will not go back to New York?”

  “Hardly. Besides, I have nothing left to go back to. For the present,” I added carefully. I assumed that he knew what everybody knew: Richmond Hill and its contents had recently been sold at auction to pay off debts. I was allowed to keep only the contents of the wine-cellars and the library.

  Jefferson later claimed that I had asked, at this time, for a government appointment and that he had refused me. This was more than usually disingenuous of him. I had asked nothing for myself because I needed nothing (or so I thought). Jefferson understood perfectly politics and the business of buying what you want; he also understood how to give the appearance of being above all chicanery. Without demur, he gave me the three appointments I asked for in order that I help him destroy Judge Chase and the Supreme Court. I took his bribe and then, according to an unfriendly newspaper, I conducted the trial “with the dignity and impartiality of an angel, but with the rigour of a devil.”

  As I had suspected, John Randolph was a disaster for the prosecution. He knew no law nor was there much place on such an occasion for his usual vituperativeness—at least, with me in the chair. He finally went to pieces and spent his final oration stammering and sighing and moaning. At the end, he congratulated us all on “the last day of my sufferings and yours.” This was gentlemanly of him.

  On a largely partisan vote, Judge Chase was acquitted for the excellent reason that there was no true case against him.

  The day after the trial, March 2, 1805, at about one o’clock in the afternoon, I was presiding over the Senate. The chamber was still a resplendent crimson place. But I had a sore throat; a low fever; and an overwhelming desire to go.

  At the first break in the debate, I motioned for silence, and got to my feet. I suspect that everyone knew what would come next. I made a few improvised remarks. I am not what is regarded as a “warm” speaker but on this occasion I managed tolerably well to move my audience in the direction I wanted them to go.

  I took my theme from the chamber itself, still dressed for the trial. We were all aware that we had together made history in that room. I reminded the senators of this and of their duty to preserve and to defend the Constitution. “This house is a sanctuary,” I said (I paraphrase for there is no copy of the speech anywhere), “a citadel of law, of order, and of liberty; and it is here—” I indicated the temporary but to me significant placement of the senators’ chairs: For a month they had sat not as mere legislators but in a row as judges. “It is here in this exalted refuge; here, if anywhere, will resistance be made to the storm of political frenzy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.”

  I was aware as never before—or since—that I was holding entirely the attention of an audience. There was not a sound in that usually cold and bustling chamber.

  “So I now say farewell, perhaps forever. I have, I hope, proved just in my dealings with you. But if on any occasion I have given offence, remember that my failure was simply human and not for want of the spirit to do good. May God bless those who sit in this chamber now, and forever after.”

  On that note, I left the Capitol, never to return. It has been reported that many senators wept at the end of my speech. Certainly they were so moved that they passed unanimously a resolution expressing, among many compliments, their “entire approbation of the Vice-President’s conduct.” This was satisfying. Later the Senate, not unanimously (the effect of my oratory had begun to fade), voted to give me the frank for the remainder of my life. The House of Representatives, however, mislaid this motion. So I have been paying for postage stamps ever since.

  Not long ago someone asked me just what “usurper” I was warning the Senate against. “Jefferson,” I said, to his surprise. “After all, we had just witnessed his attempt to subvert the Constitution and shatter the Supreme Court. He would have succeeded if the Senate had not stopped him.” But since none of this accords with legend, I am thought by many to have warned the Senate against myself as usurper!

  I remained in Washington for two weeks, saying good-bye, tending to odds and ends, preparing for my western journey. I did not see the President again but he sent me word that my friends had received their appointments.

  Attempts to fête me were discouraged. I wished quietly and silently to withdraw from the politics of the republic. On the surface my prospects were not glorious. I could not go back to New York or to New Jersey. I had lost Richmond Hill. I was bankrupt. I was a widower. I was forty-nine years old. Yet I believed that I was at the beginning of a great advent
ure. It was like being given a second life. I was happy, and envied no man on earth as I took the four A.M. coach for Philadelphia.

  Wide awake, excited, expectant, I even found invigorating the damp cold breeze from the mephitic Potomac as the coach clattered past the pillory, the stocks, the gallows.

  Thirty-five

  THIS AFTERNOON MR. DAVIS CAME to discuss a legal matter with Mr. Craft. When he was done, he came into the Colonel’s office where I now work.

  “Busy at your labours?”

  “And you at yours?” It was inevitable, I suppose, that I not like him for he is not only my tempter but also, in a way, my rival. I have become as serious about the Burr memoirs as I am about the pamphlet and the money it will bring.

  “It comes slowly.” Mr. Davis sat in the chair where I used to sit and take dictation. I put my feet up on the stove, just like the Colonel.

  Last week, as predicted, the Whig candidate for governor was defeated. “But we are certain to win nationally next year.” Mr. Davis is always an optimist. “With your help of course.” The mockery was not out-size.

  “I’ll be ready in a few weeks.” Actually I have done all the real work. I am now trying to capture the slanderous manner.

  “How is the Colonel?”

  “His spirits are good.”

  Mr. Davis shook his head—either in denial or with wonder. He is never not ambiguous. “He is a marvel.”

  “Who shot first,” I asked, “Hamilton or Burr?”

  Mr. Davis shook his head. “No one knows. And I was there, watching through the bushes. I think Hamilton fired a second before the Colonel. I know that at the first report the Colonel swayed—my eyes were on him—and I was afraid that he’d been hit. But he told me later there was a stone under his boot, and he was off-balance. We do know that Hamilton’s shot was wide of the mark. Personally, I don’t think he could see well, and so ought to have declined the encounter. Well …” Mr. Davis is not one for grieving over the past. The Colonel’s example is infectious. Think always of the future.