Burr

  Judge Rodney was so deeply distressed by the jury’s findings that he refused to release me from bail. I daresay this case is unique in American legal history. A man found innocent by a grand jury is still guilty in the eyes of the judge. Meanwhile, Wilkinson had sent a certain Dr. Carmichael and two army lieutenants into the territory with instructions to kill me. I am happy to record that the governor of Mississippi was appalled when he learned of their mission, and successfully dissuaded Dr. Carmichael from his sanguinary task. The two military men, however, were faithful to their commander; they were also every bit as incompetent as their commander and I was able to evade them easily.

  I sent word to the court that whenever I was needed I would present myself, preferably under guard; but that for the present I preferred to go into hiding since my life was in danger. My bail was promptly (and illegally) forfeited, and the Governor was persuaded to offer $2,000 to anyone who might capture the dangerous Aaron Burr.

  This was the end of all my hopes. I met with my Little Band. I told them to go on, if they chose, to the Washita Lands. I then gave them my boats and everything else that I possessed. So it was that we parted.

  A few days later my friends were all arrested; illegally, as usual. Fortunately all were soon freed, except for Blennerhassett and two others. I should note that to this day I receive letters from my one-time praetorian guard. Most of them settled in and around Natchez. Most still dream of what might have been.

  With a guide, I vanished into the vast piny Mississippi forest. My disguise was shapeless pantaloons and a coat made from a blanket; on my head was a wide-brimmed soft hat to disguise as much as possible my perhaps familiar features. I also wore a leather strap across one shoulder from which hung a tin cup on the left and a scalping knife on the right. I must confess that at this point there were a good many scalps I would have liked to detach from their owners’ pates, beginning with Jamie Wilkinson’s.

  I have never in my life seen so much rain as fell that February in the endless Mississippi forest. Our clothes were never dry. Even when the rain for a moment stopped, we managed to get wet again as we forded swollen, muddy streams in which we soon grew accustomed to the snakes that swam alongside us like so many sticks of wood come slimily alive.

  On the night of February 18, reasonably lost but travelling in the right direction (toward Pensacola in Spanish Florida where I hoped to set sail for England), we came to a clearing in the woods that turned out to be the fateful village of Wakefield (I have never since been able to read Goldsmith!).

  I knocked on the door of the nearest cabin and asked for the house of an old friend of mine. The young man to whom I spoke later declared that despite my shabby clothes and muffled face, the extraordinary lustre and beauty of my eyes convinced him that there on his own door-step was the diabolic Aaron Burr while practically in his pocket was $2,000 worth of reward money. I suspect it was not the glory of my obsidian orbs but the incongruity of a pair of New York boots that gave me away. After all, westerners looked first at a man’s rifle, then at his boots. Eyes are the last feature to be noticed.

  We went to the house of my friend who was away from home. But his wife kindly made us welcome, and bade us sleep in the kitchen. Within the hour, the sheriff arrived, having been warned by the young man that the traitor Burr was in town. After a brief discussion, the sheriff decided that to arrest the potential conqueror of Mexico was hardly in the public interest. He, too, hated the Dons. So the three of us spent the night comfortably in the kitchen.

  The next morning the sheriff most amiably offered to show us the way out of his county. Unfortunately, the young man had meanwhile alerted the local army garrison. Two miles outside Wakefield, I was arrested and taken to Fort Stoddert.

  The garrison was well-disposed toward me, and though I dreaded Wilkinson’s long arm, I knew that I had nothing to fear from those good-natured young men. In fact, their commander confessed to me that “one more week here, Colonel, and they’d have followed you to Mexico.”

  I was sent on to Washington City, in the company of eight soldiers.

  We travelled at the rate of forty miles a day, our tired horses slipping and stumbling in the slick red mud as huge black crows mocked us. My companions soon discovered that whatever the President thought of me, I was hardly a traitor in the eyes of the western people. After several rustic ovations, my escort thought it wise to avoid towns altogether, and so we slept each night in the cold wet woods.

  En route we were advised that our destination had been changed from Washington City to Richmond, Virginia, where I was to be tried for treason. It had been decided that my alleged treacheries had taken place on Blennerhassett’s Island which was then a part of Virginia. With this change of venue, Jefferson must have thought my fate already decided. What chance would Aaron Burr have on trial in the capital of the President’s own state?

  On March 26, 1807, we arrived at the Golden Eagle Tavern in Richmond where I was locked up in a second-floor bedroom, filled with newspapers assembled by the thoughtful manager. I was most grateful to him as I studied what had been happening during the weeks that I was out of the world. I read with particular interest how, on January 16, John Randolph (who was no longer a friend to Jefferson) demanded that the President clarify for Congress his proclamation. Just who were the mysterious conspirators, he asked, and to what end did they conspire?

  On January 22, Jefferson sent his answer to the Congress. He named Aaron Burr as “the principal actor, whose guilt is placed beyond question.” Categorically, Jefferson declared that I had wanted to sever the union at the Alleghenies but that when I had found the west impervious to my schemes, I had then decided to seize New Orleans, rob the local banks, and go on to Mexico. Jefferson was never a fanatic when it came to evidence. Although he mentioned various letters he had received testifying to my guilt, he did not say who had written them. He did praise by name General James Wilkinson (“with the honour of a soldier and the fidelity of a good citizen”) for having arrested a number of the conspirators.

  I have since discovered that two days after Randolph’s question in the House (and four days before Jefferson’s response to Congress), Wilkinson’s version of my ciphered letter arrived on the President’s desk. This explains, I think, the recklessness of the message to Congress with its extraordinary assertion that I was guilty “beyond question.” Of all people, John Adams asserted the moral—not to mention legal—principle. “If Burr’s guilt is as clear as the noonday sun, the first Magistrate ought not to have pronounced it so before a Jury had tryed him.”

  But Jefferson was now in a state of delirium. The day after his message to Congress, he instructed his Senate whip, Giles of Virginia, to call a secret session of the Senate in order to suspend the constitutional right of habeas corpus. This was aimed at keeping Swartwout and Dr. Bollman in government custody. Despite my friend Bayard’s eloquent speech against this monstrous perversion of the Constitution, the Senate obediently suspended habeas corpus.

  The House of Representatives was not so craven. Right off, they refused to meet in closed session. Then Jefferson’s own son-in-law (who knew his wife’s father altogether too well) declared that “never under this government has personal liberty been held at the will of a single individual.” The House refused to suspend habeas corpus. Nevertheless, Dr. Bollman and Swartwout were still in a military prison at Washington City and for the moment beyond the reach of the Constitution.

  Now, most comically, noble democrat Jefferson and Spanish agent Wilkinson were confederates. Forgotten was Wilkinson’s disobedience. Ignored was Wilkinson’s military dictatorship at New Orleans. When the Governor of Louisiana protested Wilkinson’s actions to the President, the author of the Declaration of Independence responded with a remarkable letter of which I possess a copy (given me by Edward Livingston). “On great occasions,” announced the scourge of the Sedition Law, “every good officer must be ready to risk himself in going beyond the strict line of law, when the public preservati
on requires it.” Jefferson then acknowledged that the Administration’s political “opposition will try to make something of the infringement of liberty by the military arrest and deportation of citizens, but if it does not go beyond such offenders as Swartwout, Bollman, Burr, Blennerhassett, etc., they will be supported by the public approbation.” In other words, if public opinion is not unduly aroused one may safely set aside the Constitution and illegally arrest one’s enemies. Had this letter been published at the time, an excellent case might have been made for the impeachment and removal of a president who had broken that oath he had taken to defend and to protect the Constitution by conspiring to obstruct and pervert the course of justice.

  On January 23, Dr. Bollman was taken from prison and escorted under heavy guard to the office of the Secretary of State. There he found Madison and, to his surprise, the President.

  “I had never seen Mr. Jefferson before,” Dr. Bollman told me later, “and I was not prepared for this unusual man. He was extraordinarily nervous. He complained of headache, and kept pressing his eyes all through our interview. He never once looked at me. Mr. Madison did most of the questioning. Finally I said that I would tell them everything that I knew about your plans on condition that nothing of what I said would ever be used for any purpose other than their enlightenment.

  “ ‘That is fair enough,’ said Mr. Jefferson. ‘I give you my word I will abide by that.’ Then the two of them, like a pair of court recorders, I swear, sat and took notes while I told them how you had intended to revolutionize Mexico.

  “ ‘But surely,’ said Mr. Madison, ‘Colonel Burr had designs on New Orleans.’ I said what you used to say: that since the artillery at New Orleans was the property of the French, you felt no compunction about seizing it, as well as what foreign shipping you might be able to commandeer on the way to Vera Cruz. My two scribes were disappointed.

  “Mr. Jefferson asked, ‘What about Colonel Burr’s plan to separate the west?’ I noticed that his hands trembled as he turned a page of the copy-book. I said there was no such plan.

  “ ‘But we know,’ said Mr. Madison, ‘that Colonel Burr proposed such a plan to the Spanish minister.’ I told them the truth, that it was Senator Dayton’s trick to raise money, and that it had failed.

  “ ‘What about Colonel Burr’s conversations with the British minister?’ asked the President. I told him a lot of nonsense in order to protect Mr. Merry—told them how England only wanted to aid your Mexican adventure. I ended by advising the President that he would do the United States a great service by promptly declaring war on Spain and allowing you to continue your work. He broke his pen on that. Then Mr. Madison gave me a twenty-page version of what I had said which I read carefully and signed.

  “ ‘This paper, Dr. Bollman, will never leave my hand,’ said the President, and he sent me back to prison.”

  A writ of habeas corpus was issued on Dr. Bollman’s behalf by that poetical lawyer Francis Scott Key. But before it could be properly served, Jefferson hurled a charge of high treason at my associates, and they were kept in jail.

  At this point the redoubtable Tory, the drunken, the brilliant, the incomparable Luther Martin (easily the best trial lawyer of our time) came forward to their defence, and applied to the Supreme Court for their deliverance.

  February 21, 1807, Chief Justice John Marshall delivered his opinion. After reading Wilkinson’s version of my cipher-letter, as well as the rest of the “hearsay evidence” collected by the government, Marshall was obliged to observe that under the Constitution no act of treason had been committed by anyone. Unfortunately, in his garrulous way he gave a loose and dangerous definition of what constitutes a treasonable act. This obiter dictum I will come to in due course. By the Supreme Court’s order Dr. Bollman and Swartwout were freed.

  This was the background to my charming season at Richmond where I was able from various places of detention to observe the marvellous flowering spring in that part of the world, to delight in daffodils and dogwood, to indulge myself in the pleasures (never denied me by my gallant gaolers) of knowing Richmond’s elegant ladies.

  Jefferson’s ill luck continued (as opposed to his ill luck I must put upon the scales my own far heavier and singularly maleficent destiny!). In his haste to try me in his own state, Jefferson had overlooked the fact that the presiding judge of the circuit court at Richmond was none other than his old enemy the Chief Justice. I assume that Jefferson had overlooked this fact. John Marshall, on the other hand, thought that the selection of Richmond was deliberate.

  “He wanted to catch me out, just as he tried to catch out Justice Chase,” said Marshall to Luther Martin some years after the trial. “It was a deliberate attempt to destroy the Supreme Court. All I need do was show the slightest favour to Burr, mis-step once in the law and Jefferson would have me on trial in the Senate, and with me the Constitution.” Fortunately, Marshall was not about to mis-step. Nor for that matter was I.

  The Chief Justice and I met March 30, 1807, in the tap-room of the Golden Eagle Tavern. This comfortable hostelry was famed for having over its front door the biggest sign in the union: an eight-by-five-foot golden eagle with wide-spread wings, the work of the then unknown Thomas Sully.

  The tap-room was crowded with what I suppose was every lawyer in the state. Some of the finest legal talent in the nation was already assembling for my defence. Needless to say, most of them were Federalists. Like it or not, I had become, over night, the symbol of opposition to Jefferson and to his high-handed administration.

  As I stepped into the room, I recognised the tall figure of the Chief Justice. He wore dusty riding-clothes (he was even more untidy than his presidential cousin) and his dark hair needed combing. I, on the other hand, wore new small-clothes of black silk and my hair was freshly powdered and queued (I had even got rid of the fleas that had so loyally accompanied me from the west). As I moved through that assemblage, I had for the first time in months the sense of being once more in control of my destiny. Where there is law, I fear no man.

  I bowed to the Chief Justice; he bowed to me. “I think, Colonel, we had best remove ourselves to a more private place.” And so, to the distress of the onlookers, we withdrew to a small side-room where I explained why I had left the Mississippi Territory.

  Marshall heard me gravely, without comment. I asked to be set free. The United States attorney George Hay then asked that I be committed over to a grand jury on a charge of misdemeanour for having plotted a war against Spain, and of treason for having plotted a war against the United States.

  I was then released on $2,500 bail and the court was adjourned until the next day when we would meet in the state capitol (a pompous pseudo-Greek monstrosity designed, I believe, by Jefferson himself).

  The next morning, surrounded by well-wishers, I climbed the steep slope to the classical portico where I was allowed to observe the view of Richmond, lovely in the first yellow-green of the season.

  Then pushing past several goats who were feeding on the turf at the foot of the capitol’s steps, I followed the sergeant-at-arms to the Chamber of Delegates which resembled the interior of a country church with its rows of uncomfortable pews, each thoughtfully equipped with a box of white sand in which to spit tobacco.

  Our first day was spent listening to George Hay press his charges. He wanted me imprisoned and held without bail.

  On April 1, Marshall delivered his opinion in this matter. He said that a prisoner could only be let go when it appeared that the charges against him were “wholly groundless.” He did not believe that I fell into that category. On the other hand, he stated firmly that the law may not allow “the hand of malignity” to “grasp any individual against whom its hate may be directed or whom it may capriciously seize, charge him with some secret crime and put him on the proof of his innocence.” Although this was deliberately directed at Jefferson (and was so interpreted by everyone), Marshall later remarked, most demurely, that he had not Jefferson but Wilkinson in mind.

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nbsp; Marshall saw no convincing evidence at this point that I had assembled troops for a treasonable purpose, and so bailed me in the sum of $10,000, and bade me answer the charge of misdemeanour (plotting a war against Spain). The grand jury was convened for May 22.

  Jefferson now took over the prosecution. Day after day he sent messengers to the west to collect (or create) evidence and witnesses. It ought to be noted here that in a number of Jefferson’s private conversations during this period, he admitted quite freely that my designs were obviously on Mexico. Yet, publicly, he persisted in his efforts to mark me as a separatist and so a traitor. Mark me? No, hang me!

  During the three weeks before the grand jury met, I was fêted by the good people of Richmond. Jefferson was not popular amongst the gentry. The common people, however, admired him and I heard a rhetorical tailor drink a toast at the Golden Eagle bar to “the hemp which will be Aaron Burr’s escort to the republic of dust and ashes.”

  Almost a week after my release from detention, I was invited to dinner by my chief counsel, John Wickham, a charming and gregarious man whose dinner parties for the legal profession of Richmond were celebrated.

  “You are to be guest of honour,” said the invitation I received at the Golden Eagle. So on the afternoon named I repaired to the Shockoe Hill district.

  As I entered the drawing-room, I was astonished to see that John Marshall was a member of the company. If he was startled to see me, he made no sign. Later Wickham told me that Marshall quite properly questioned the wisdom of a judge dining with a man who must soon appear before him on a grave charge; nevertheless, he had decided to attend the dinner.

  We bowed to one another across the room, and I promptly sought the company of my various lawyers (I would have preferred the company of ladies but none ever attended Mr. Wickham’s legal dinners). That season, by the way, was a splendid one for the ladies; or perhaps I should say for their admirers. The so-called Empire fashion had swept America and even the most respectable of maidens (and, alas, the most mature of matrons) wore high bodices two-thirds bare. It is a moot point which issue most concerned the republic in the summer of 1807: my alleged treason or the brazen and ubiquitous baring of breasts that called forth from every pulpit warnings of the wrath of Jehovah. The lascivious press was in an ecstasy: teats and treason—could any other combination be more popular?