Burr

  After dinner I suddenly realized that John Randolph had sat down next to me. Those huge hollow eyes glared at me and I noticed, as always (and with an involuntary shudder), the curious silky down on his cheeks like that of a young boy, or of a girl who has been too much in the open. “I saw you pass my house, Colonel, some weeks ago.”

  “My triumphal procession!”

  “Perhaps it was a triumph. We’ll soon know.” The voice in my ear was reedy and disagreeable. Yet on the floor of Congress it could be most beautiful and seductive. The long delicate fingers were dirty; the nails broken and black. “I shall be most curious to learn how you intended to break up the union with only a hundred men …”

  “Forty-seven …”

  “Half again as formidable if we are to apply my Cousin Tom’s peculiar method of reckoning.”

  What a family to have produced Randolph, Marshall and Jefferson! The first mad, the second eccentric, the third a passionate hypocrite. To add to the complication of shared blood and madness, the three detested one another.

  “Let me say, Colonel, that to my mind you have every Constitutional right to try to dissolve the union.” Randolph was even more devoted to the integrity of the states than Jefferson. “Cousin Tom ordinarily would agree with you. Are we not all brothers, all Americans?” He mimicked the President cruelly.

  I was polite, and non-committal.

  As we left the dining-room, Marshall and I spoke to one another for the only time that evening. “I have been reading,” I said, “your life of Washington.” I had indeed been doing my best to navigate the first four volumes of that remarkably tedious work (so deeply reflective of its subject).

  “Oh, it is very bad, Colonel.”

  Although of all this world’s creatures, the author is the vainest, Marshall was a notable exception. But then perhaps his vanity was the greatest of all: to undertake such a huge work without the slightest qualification.

  Despite my flattery, Marshall was adamant in condemning himself. “I was forced to publish too soon. And so there are errors. Worse, parts of it make no sense at all. I have not had time enough what with …” he gestured diplomatically, “… all this.”

  “But you have finished the last volume?”

  “Oh, yes. It has gone off to the printer. I deal with Washington’s presidency. It is better than the rest. At least I pray that it is.”

  “I found your first volume most original.” The Chief Justice had required a whole book just to get his hero born, like Tristram Shandy.

  “No one else does. My publisher tells me that many subscribers are asking for their money back.”

  “You had ten thousand subscribers, I am told.”

  “Nowhere near so many. Of course there might have been more except …” Marshall stopped, conscious of indiscretion.

  I finished for him. “Except that the Administration regards your work as a political attack on the Republican party.”

  Marshall nodded, pleased to have said nothing. Then he added, “You know, books are sold to subscribers through the postmasters. Mysteriously, the Republican postmasters to a man have refused to sell The Life of Washington.”

  “Most mysterious,” I agreed. Then we joined the others. That is the only “private” conversation I had with John Marshall during the seven months we were together at Richmond. Needless to say, the Republican press made much of our encounter, and demanded that Marshall be—what else?—impeached.

  On May 22, 1807, at 12:30 P.M., the United States circuit court for the district of Virginia opened its doors for business in the House of Delegates.

  It is like a play, I thought, as I looked about me. Men so crowded the court-room that some were obliged to stand in the open windows (it was to be such a hot summer that even I was sufficiently warm).

  There in front of me were the elegants of Richmond society, looking like courtiers to the late French king. Crowded in next to them were frontiersmen and Piedmontese with coon-skin caps and leather jackets, promiscuously spitting jets of tobacco; in such close quarters, they often missed their target, dirtying many an expensive London jacket.

  I saw a number of friendly faces. Some known to me, most not. I particularly noticed day after day an enormous, heroically built young man who stood on the huge lock of the main door. Like an avenging angel, he towered over the room. Twenty years later I saw him again at Albany, in the house of Martin Van Buren. It was General Winfield Scott, then a tyro-lawyer. He was most sympathetic. “May I say, Colonel, that I have never seen a man so composed as you were at Richmond? You were as impenetrable, as immoveable as one of Canova’s marbles.”

  John Randolph was also there, leaning in his privileged way against the judge’s tribunal, flicking his riding-whip against one long leg, a planter’s hat jammed down on his head.

  Most reassuring of all was the presence of Andrew Jackson. He stood at the back of the room, staring balefully at anyone who testified against me.

  A few days later Jackson was nearly mobbed when he addressed an anti-Burr crowd in front of a grocery shop on the edge of the capitol green. But he held his ground and, with many an oath, declared that I was the victim of political persecution and that anyone who believed a word James Wilkinson said was a god-damned fool for Wilkinson was a liar, a bastard from Hell, and in the pay of the Spanish government. My poor friend had a difficult time in Richmond and I fear—hard as it is to believe now—that the plebs actually laughed at their future idol Andrew Jackson. I at least blessed him for the friend he was.

  The grand jury was empanelled. I was able to keep Jefferson’s creature, Senator Giles, off it. But not John Randolph who was made jury foreman, even though he told the court that he was absolutely certain of my guilt.

  Despite the lack of evidence, the Administration wanted me indicted for treason. The lesser misdemeanour did not satisfy them. Also, treason was not bailable and the Administration affected to believe that I would flee their justice rather than face in court their witness Wilkinson. Finally, Marshall was obliged to require of me a total bail of $20,000.

  I began my defence by pointing out that three times in the west I had been tried for the same offences and three times found innocent. I spoke of the illegality of my arrest by the military. I spoke of Jefferson’s political interest in the matter. I spoke of Wilkinson’s chicanery. I think I made an impression not so much on Marshall as on the populace packed in the hall before me, an audience whose physical presence I came to dread, smelling as it did of cheap tobacco and harsh sweat.

  For a time Jefferson counted on Dr. Bollman’s “confession” to convict me of the misdemeanour of planning a war against Spain. Although Jefferson had given his word that Dr. Bollman’s deposition would never leave his hand, he sent a copy of it to Hay, with a signed pardon. If Dr. Bollman allowed the deposition to be admitted in evidence, he could go free. Dr. Bollman refused the President’s pardon on the excellent ground that since he had committed no crime he could not be pardoned. He also denounced the President as a dishonourable blackguard who had broken his word. Jefferson’s response was swift. “Convict Bollman,” he wrote Hay, “for treason or misdemeanour.”

  It is my private (and entirely unverifiable) view that during this period Jefferson was mad. I say this having spent seven months in and out of court observing his two cousins and so was able to note not only their numerous eccentricities but their curious resemblances to one another and to him. Jefferson’s headaches and irascible outbursts combined with his extraordinary expenditure of money to produce or create evidence against me (Jefferson never spent public money) was proof to me of his irrationality that season. Certainly it was not the act of a sane man to rest the government’s case against me on the evidence of someone he knew to be a Spanish agent, a man who ought not to have been allowed to command even a platoon much less the entire wretched army of the United States.

  Jefferson’s behaviour was like that of a woman who has decided to destroy the man—or rather the men (Marshall was as much h
is target as I)—who spurned her. As the case against me slowly collapsed, the furious President shifted his guns to the Constitution itself. Blamed everything on “a judiciary independent of the nation.” Threatened to amend the Constitution. Judges ought to be removable, he trumpetted, at the pleasure of president and Congress.

  Fortunately the canny John Marshall avoided one by one Jefferson’s traps as the long summer days lengthened and three generations of lawyers advanced (or set back) their careers by appearing either for the government or for me.

  On my side I had, amongst a galaxy of legal talent, the celebrated Virginian Edmund Randolph who had been Washington’s attorney-general. The government’s only distinguished lawyer was the unwholesomely elegant and actorish William Wirt. The government’s principal prosecutor, George Hay, was not much of a lawyer. But then he did not need to be since he would soon be son-in-law to James Monroe. The junto, the junto!

  The first weeks of skirmishing established little. Until Wilkinson’s arrival the government could not begin its prosecution. Meanwhile, I decided to amuse the grand jury and perhaps make law.

  I read to the jury Jefferson’s message to Congress, drawing their attention to the part in which he refers to various letters he has received about my activities as well as to certain orders he subsequently gave to the army and navy.

  “I have, may it please Your Honour, applied to the Secretary of the Navy for copies of these orders. He has refused to produce them. Attempts to obtain copies of any of the letters written to the President have also failed. Now I cannot prepare a defence without full knowledge of what my accusers have said of me. I must also know what orders the President or his secretaries gave to the army and navy in regard to my person. Therefore, may it please this honourable court, I must request that there be issued a subpoena duces tecum to the President of the United States …”

  I paused and enjoyed the sound of several hundred tobacco-y breaths exhaling simultaneously. “… and that the Honourable Thomas Jefferson come to this place and bring with him the documents which are necessary to my defence, and to the promotion of justice.”

  Hay sprang to his feet and spoke so rapidly that he stammered. “Naturally, Your Honour, I will do what I can to obtain these papers which the court—and only the court—deems material but …”

  “But, Mr. Hay,” murmured the Chief Justice in that low voice which at times so much resembled the whispery tone of his presidential cousin, “how is the court to decide what is material when the court has access to nothing?”

  “Your Honour surely cannot respond to this … to this impudent … to this, uh, to this attempt to call the Chief Magistrate into court.”

  “The court considers the point moot, and will reflect upon the matter. We now stand adjourned until tomorrow morning.”

  The next day Hay made the specious point that since this was only a grand jury proceeding, I was not entitled to any of the usual privileges of the legal process.

  Then Luther Martin took the stage. Sipping from a stone jug of whiskey, he advanced to the well of the chamber. He was a dishevelled figure, to say the least. For two nights running he had slept in his clothes on the floor of my bedroom at the Golden Eagle; nor had I tried to move him. I knew from experience that when Luther Martin decided to sleep on the floor (or in a cupboard—he was unnaturally partial to cupboards), it was pointless to protest. He would stay where he fell, snoring loudly and, presumably, content. But what a man of law, drunk or sober!

  Luther Martin suspected, as did I, that somewhere in the War Department there might exist an order to Wilkinson intimating that my death would be convenient to all concerned. With this in mind, he explained to the jury the difficulties we had encountered in procuring government documents. Most puzzling, he said. Most puzzling. Then he took a long restorative swig from his stone jug, and the crowded stuffy room became absolutely still. I have never seen on any stage an actor who could hold an audience as he could.

  “This is a peculiar case, Sir.” The small red eyes rolled up toward Marshall, then back toward the grand jury. “We have here a most peculiar case in which a president, no less, has undertaken to prejudice my client by declaring in a message to Congress, no less, that, and I quote, ‘of his guilt there can be no doubt.’ ” Luther Martin shook his head mournfully at man’s base nature, at all human perfidy.

  Tension mounted in the chamber. The idol of the crowd, the god Jefferson himself, was being summoned to appear before them like any other mortal. Worse, the apostle of the rights of man was being condemned not only for vindictiveness but for prejudicing the judicial process.

  “It would seem”—Luther Martin’s voice was now in the tenor range: a special piano he affected before the fortissimo storm—“that the President has assumed to himself the knowledge of the Supreme Being.” A gradual elision from tenor to baritone. “He has proclaimed his late vice-president a traitor in the face of that country which has rewarded him. He has let slip the dogs of war, the hell-hounds of persecution.” The baritone became Jovian bass and the room began to resound with that powerful voice. No one moved. “And would this president of the United States, who has raised all this absurd clamour, attempt to keep back the papers which are wanted for this trial, when a life itself is at stake?” The question ricochetted like a fatal bullet from the rafters.

  Luther Martin then levelled a stubby finger at Hay, in loco presidentis, and demanded: “Are we to assume that the President would be sorry if Colonel Burr’s innocence were proved?” A roar of indignation from Jefferson’s partisans. The Chief Justice threatened to clear the court of spectators.

  For several days the issue was furiously debated. Could a president be summoned before any court? Hay said as president, no; as a private individual, yes. Not a helpful illumination of the Constitutional landscape. He also maintained that “confidential communications” of the executive were privileged, and so on.

  On June 13, Jefferson’s answer was read to the grand jury. He reserved to the president of the United States the right “to decide, independently of all other authority, what papers coming to him as president the public’s interest permit to be communicated.” What he deemed permissible he would of course supply. He agreed to give us a copy of Wilkinson’s October 21 letter to him but he would withhold those parts of the letter he thought immaterial. As for the army and navy orders, well, if we would just tell him which orders we would like to see he would do his best to comply. This put us in a nice situation: we were to specify which military orders we would like to see, having seen none!

  Marshall took up the challenge. The issue was simple. Could a president be summoned into court, and if he could, ought President Jefferson be summoned in this case? Marshall resolved the matter neatly. Yes, he declared ex cathedra, a president could indeed be summoned. Nothing in the Constitution forbade it, or in any statute save—and the “monocrat” Marshall was plainly enjoying himself—“in the case of the king.” But, Marshall was happy to note, a president was not entirely like a king (there was a positive gnashing of Republican teeth in the hall as they heard the apostle of the democracy compared by a Federalist judge to that most hated of this earth’s monsters, the crowned despot).

  “I mention two essential differences,” said Marshall, most mildly, but speaking more loudly than usual. “The king can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. Since a president can do wrong and since he can be named in debate, he is not an anointed king and so like any man is answerable to the law.” John Marshall then summoned President Jefferson to Richmond.

  There was nearly a riot in the court-room. Not until the next day did we begin to realize the extent of Marshall’s subtlety. First, he asserted the power of the court to subpoena a president. Then, he avoided a Constitutional crisis by adding—almost as a postscript—that the court would be perfectly satisfied if the original letter of General Wilkinson and related documents be despatched. Once they were in the hands of the court, the
President need not make the tedious journey from Washington to Richmond.

  I am told that Jefferson was, literally, deranged by this decision and insisted by return post that George Hay arrest Luther Martin for treason on the ground that since he was an old friend of mine he must have been in my confidence from the beginning and so was party to treason. No president has ever behaved so; let us hope no president ever shall again. Luther Martin, needless to say, was not arrested.

  A number of documents were duly sent to the court from Washington, and the constitutional crisis was at an end. Jefferson, however, had a number of bitter things to say about the court’s power to summon a reigning president. He was particularly annoyed by Marshall’s sly comment that “it is apparent … the President’s duties as chief magistrate do not demand his whole time, and are not unremitting.” This reference to Jefferson’s long absences from the capital brought forth the cry, “I pass more hours in public business at Monticello than I do here every day!” The cousins knew how to wound one another.

  As luck would have it, on the same day that Marshall summoned the President, James Wilkinson arrived at the Golden Eagle which was crowded to bursting. But then Richmond itself was crowded to bursting. From every part of the nation people had come to observe the great treason trial, and all agreed that it was better than any theatre; for as even the most ignorant backwoodsman knew, at issue was a struggle to the death between the President and the Supreme Court, between nationalists and separatists, between Jefferson and Burr who at even this late date was still a hero to the New England Federalists and might have been able—had I so wished—to lead that part of the country in a revival of the now moribund Federalist party.