The American Chronicle 1 - Burr (61 page)

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
his 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 the 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.

I was in the Golden Eagle parlour when Jamie made his entrance. He was ablaze with gold lace, epaulets, and whiskey. He moved like a turkey, wattles a-quiver, sway-backed, stomach thrust forward as though if he walked normally the centre of his gravity would so shift to the paunch that he would fall flat. He was accompanied by a
host of aides and “witnesses” from the west.

When Jamie saw me surrounded by my Little Band, he made a curious, almost placating gesture with his right arm and hand, the palm upward; and I caught a glint of what looked to be pleading in his eyes. Then he was led to another room.

Sam Swartwout was all for challenging him to a duel. “Not the happiest solution to our problem,” I said.

“But the bastard put me in chains for two months, and stole my gold watch!”

“Challenge him!” Andrew Jackson was now entirely my partisan, and recklessly outspoken. But then he could afford to be; his letters to Governor Claiborne and to Jefferson had so cleverly established his loyalty to the union that the prosecution had originally wanted him to testify against me but as Jackson stormed about Richmond, proclaiming my innocence, the government came to regard him as a perfect nuisance, and dangerous to their weak case.

Luther Martin was mellow. “My boy, you’re not to touch the whoreson until I have had my fun with him in court.”

But the next morning, a Sunday, as Wilkinson was taking the air in front of the tavern, Sam Swartwout marched up to him and with one strong shoulder, shoved the commanding general off the side-walk and into the gutter. Aides drew swords. Distraught admirers helped the Washington of the West to his feet.