The American Chronicle 1 - Burr (63 page)

“I assume you have abandoned the law?” I had ceased to come to the office shortly after the New Year.

“For the present.”

“You ought really to take your examination before the bar.”

“There is always time for that. I’m writing for the newspapers now.”

Mr. Craft nodded. “I know.” I am always delighted when people tell me that they have read what I have written. “I’ve seen many of your pieces in the
Evening Post
.
You are Old Patroon, aren’t you?”

I confessed that I was. I did not tell him that in other newspapers and magazines I am Skeptic (who praises the Whigs) and Gallery Mouse who reviews plays and thinks Edwin Forrest the greatest actor of our time and said as much when he recently sailed for England (although Mouse was obliged to admit that he was not entirely happy with Forrest’s interpretation of
The Broker of Bogota
).

“Many literary men are also lawyers. Look at Mr. Verplanck. Look at ...”

But I did not let him pursue the subject. I did the business for which I had come (collecting Colonel Burr’s private files), and departed.

I found the Colonel seated beneath the rear basement window. A watery April sun shone on his upturned face: he seems to draw to himself light and heat, like some ancient sun flower unexpectedly rooted in a cellar.

I gave him the bundle of documents. He put them on the floor beside his chair.

“How was the theatre last night?”

“James Sheridan Knowles held a benefit for himself.” I reviewed for the Colonel the various scenes Knowles acted out from all the plays he has written, including
The Hunchback
,
a noisy work the audience loves.

“I confess to missing the theatre.” This was the nearest the Colonel has yet come to a complaint. He turned from the light; no longer sun flower, more ancient mole returning to its burrow.

“On with the trial of the century!” Burr held up a large volume. “This is a
précis
of my trial. The actual record runs to some eleven hundred pages. If you are ever morbidly disposed, read it. But for the moment, I shall condense the issues, in a way entirely favourable to me!”

IN THE MATTER of treason, the Constitution is explicit: two persons must witness the traitor in the act of levying war against the United States or of adhering to their enemies, giving them aid and comfort. Since the place where I was supposed to have raised my “army” of insurrection was Blennerhassett’s Island, in the month of December 1806, it was necessary for Jefferson to establish that I had indeed committed the crime he had told Congress I had committed.

Yet the facts were unimpressive. All that the prosecution could prove was that some thirty men associated with me stopped at the island on their way down the Ohio. They were not armed. They committed no acts of violence (unlike the local militia). They threatened no one. They said they were en route to the Washita River lands. But because General Wilkinson maintained that these unarmed men meant to seize New Orleans and revolutionize Mexico, they were accused of levying war against the United States
by construction
,
and since I was thought to be responsible for their movements (even though I was in Kentucky at the time this “war” was levied against the United States in Virginia), I too was guilty of treason
by construction
.

May I say that the entire concept of
constructive treason
is unconstitutional and was known to be so by every lawyer in the United States, save Jefferson. But he was desperate. Although he had assembled nearly fifty witnesses to denounce me (of whom more than half perjured themselves), there was never any proof that I had levied war against the United States, or advised the thirty men on Blennerhassett’s Island to levy such a war.

During the trial, the Governor of Virginia very nicely assigned me a three-room suite in the new penitentiary outside Richmond. I have seldom been so well looked after. The jailer received me most courteously, and hoped that I would be comfortable.

“I am certain to be,” I said, graciously.

“I trust, Sir, it would not be disagreeable to you if I should bolt this door after dark?” He indicated the front door to my apartment.

“By no means, Sir. I should prefer it—to keep out intruders.”

“It is also our custom, Sir, to extinguish all lights at nine o’clock.”

“I fear, Sir, that that is not possible. I never go to bed before twelve, and always burn two candles.” I did not add that I never go to bed but with regret, and by violence to myself.

“Just as you please, Sir. I should have been glad if it had been otherwise ...” A sigh. “But as you please, Sir.”

We became excellent friends, particularly when I shared with him the gifts that were hourly brought me by liveried servants—oranges, lemons, pineapples, raspberries, apricots, cream butter and even ice, a luxury in that equatorial zone.

On August 2, Theodosia and her husband arrived, and moved into Luther Martin’s house. Theodosia swiftly became the queen of Richmond society, presiding at the Golden Eagle with such charm—despite ill health and natural anxiety—that Luther Martin said, “I must marry her, Colonel. I shall kill her unworthy husband, and then she will be mine, by right of conquest.”

“You have my blessing.” At that moment I confess that I should not in the least have minded anyone murdering my son-in-law who had all but denounced me in order to avoid being arrested by Jefferson. Alston was a man of weak character with but one interest—his wife and his son. For that shared passion, however, I forgave him everything.

Meanwhile, Blennerhassett had joined me. He, too, was under indictment, and somewhat out of sorts. Our first meeting was not harmonious, largely because he saw fit to pay a call upon me just as a lady of Richmond (a young widow, I hasten to add) was stealing from my presence, with the good jailer’s assistance.

“I do not wish to criticise you, Colonel ...”

“Then
indulge
your wish, my dear friend, and refrain from criticism.”

“But immorality of any sort,
licence
of any sort ...”

“Come now.” I did my best to soothe the incestuous uncle.

“... and in a
penitentiary
!”

“Ah, it is not
fitting
.
I see what you mean.”

“No, it is not.” He then told me that he wanted back the money he had contributed to our venture. Since I was not able to oblige him, he most quixotically refused to hire a lawyer to defend himself. Fortunately my cohort of attorneys was willing to save him from the gallows.

The government had been led to believe that my son-in-law would testify in their behalf. But we undid them. On the day of the trial, August 3, Alston and I entered the court-room together, my arm through his.

It took us a week to assemble a jury from the usual panels. As it turned out, every prospective juror was of the opinion that I was guilty. We might still be at Richmond if Marshall had not ruled that an opinion of the defendant’s guilt which was
lightly
held—as opposed to
deliberately
held—did not disqualify a juror. This exquisite decision pleased George Hay. But the wrangling continued.

Finally, I moved to pick any eight men from the existing panel,
if
the prosecution would accept them. Startled, Hay agreed. After all, the entire panel thought me guilty—and none appeared to hold their opinion with much lightness. Almost at random, I picked eight men, making the point that I was certain I could rely on the fairness of gentlemen. This proved to be an excellent move, and I won right off a convert or two, not that it much mattered. I knew that only the law could save me; the jury was irrelevant.

Next to Wilkinson, the government’s most important witness was William Eaton, an adventurer who called himself “general” as a result of some interesting skirmishes in North Africa that had gained him a degree of celebrity, a fascinating costume inspired by the Berbers, and a long outstanding claim on the United States government for services supposedly rendered.

I had met Eaton in Washington, had mentioned something to him of my plans for Mexico. He had shown interest, and that was all. Now, suddenly, he had a marvellous tale to tell. Apparently I’d planned to seize the capital, murder the President, and so on. To forestall me, he told the court, he had gone to Jefferson and suggested that I be given a foreign embassy to remove me from the scene. Out of tact he forgot to mention to Jefferson that I intended to murder him.

In court I probed Eaton on the subject of his claim against the United States. Had it been paid? He tried not to answer. Finally, reluctantly, he admitted that shortly after my arrest the government suddenly saw virtue in his claim and he had received some ten thousand dollars.

The Morgan family also testified. Their reports of my conversation were sketchy, and self-contradictory. Nevertheless they, too, were rewarded by Jefferson, who saw to it that the government granted them the disputed Indiana land.

My chief of staff the good French Colonel de Pestre was secretly offered a commission in the American army if he would testify against me. He refused. Even Blennerhassett was approached by Jefferson’s henchman, the editor Duane, and told that if he would fully incriminate me all charges would be dropped against him. Surprisingly, Blennerhassett refused. I suppose he thought that if I was hanged he would never see so much as a penny of the money he had lent me. The other witnesses for Jefferson made little impression.

Finally, Marshall asked Hay if he had any further “evidence” that Burr had been at Blennerhassett’s Island on the famous December 10 when an act of “war” had been supposedly levied against the United States. Hay said that he had none.

John Wickham then moved that no further testimony be admitted. He also entranced the court for two days, making the point—and re-making it in a hundred subtle ways—that it was not possible to commit treason unless the traitor was himself present when war was levied against the United States. This argument was essential to my defence. Quite simply, I had not been at Blennerhassett’s Island December 10. But the constitutional argument was even-more important than my neck (which I would have, perhaps, denied at the time).

Wickham’s target was the ancient notion of “constructive treason.” In its purest sense this phrase means that anyone who might have wished well a potential traitor was as guilty as the traitor himself even though the well-wisher was miles away from the act of war. Wickham reminded the court that the Constitution is a unique document in which treason is exactly and narrowly defined. The traitor must actually be caught in the act of levying war against the United States. These absent figures who wish him well, who might even have inspired him, are nowhere mentioned in the Constitution, and so are not traitors.

This point had to be spelled out with great care because John Marshall had made a serious error in his earlier ruling on Bollman-Swartwout. Although Marshall had not found any evidence of any war of any kind being levied on Blennerhassett’s Island, he did declare—no doubt wanting to impress Jefferson with the court’s impartiality—that “it is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting, by force, a treasonable object,
all those who perform any part
,
however minute
,
or however remote from the scene of action
,
and who are actually leagued in the general conspiracy
,
are to be considered as traitors
.”

I am told that to the end of his days, Marshall regretted this extraordinary blunder, redolent of the medieval Star Chamber. As he himself was soon to recognise, if such a wide net is to be cast into the sea who cannot be caught in it if he has had the ill fortune to have said “God-speed” to a man who later levied war against the United States?

The prosecution was slow to use the weapon Marshall had forged for them. They were so intent on proving that I was on the island December 10 that when I was able, easily, to prove that I was elsewhere, their set-back made more of an impression on the jury than it ought. They would have been better advised to confine themselves to my
distant
leadership of the men on the island and to the treasonable words I was supposed so promiscuously to have said to the various perjurers Jefferson had paid to come to Richmond.

The task of the defence was now to modify Marshall’s doctrine of “constructive treason.” The Chief Justice, however, was moving in a different direction. He was going to evade as much as possible the trap he had set for himself by attending to the simpler issue of whether or not an act of war against the United States had indeed been levied December 10, and if it had could the government produce two witnesses to that act, as required by the Constitution?

Wickham’s presentation proved so thorough and so masterly that the prosecution asked for a recess (which was granted); they also asked for more witnesses to be heard, and heard they were—to no avail.

Then the counter-attack began. William Wirt insinuated himself into the history of American prose if not of law by a splendid flowery description of Blennerhassett’s Island as a perfect and innocent Eden to which Aaron Burr, the Devil himself, came as the sulphurous tempter of poor Blennerhassett (a monstrous composite of Adam and Eve), deliberately, cruelly changing to Hell a pristine island Paradise. I am told that this remarkable effusion is still taught in every school of the country as an example of—God knows what! I do suspect that my continuing dark fame in this republic is now almost entirely due to the fact that the only thing-that three generations of American schoolchildren know of Aaron Burr they have learned while committing to memory William Wirt’s oration. Not long ago I had the pleasure of listening to one of my wards proudly recite by rote Wirt’s philippic against Aaron Burr, not realizing it was her kindly old Gamp she was denouncing in such rich, hyperbolic phrases.