John Marshall
Page 25
General Andrew Jackson welcomed Aaron Burr Jr. to the West, calling him a hero for his success in the duel with Hamilton and urging him to settle in Tennessee and run for the Senate. (LIBRARY OF CONGRESS)
New Orleans—the last stop on Burr’s journey of exploration for land and opportunities—greeted him as a hero, out-cheering, out-parading, and out-feasting Nashville, with cannon fire, pealing church bells, parades, banquets, and endless greetings by and meetings with notables. By midautumn 1805 the warmth of his reception in the West convinced him that America had let his duel with Hamilton fade into history, and Burr retraced his journey to return to Washington. He stopped at Natchez to lease 40,000 acres of fertile land in northeastern Louisiana as a haven for his family and friends if he found he had to leave the East permanently.
After Jefferson received Wilkinson’s letters accusing Burr of plotting secession, the President—without a single fact to support Wilkinson’s charges—leaped at the chance to hang his former rival for treason. Citing unspecified information he had received, Jefferson sent Congress a message citing “an illegal combination of private individuals against the peace and safety of the Union and a military expedition planned by them against the territories of a power in amity with the United States . . . and the prime mover in these is Aaron Burr.”3
Even former President John Adams—no friend of Burr—lashed out at Jefferson. “Politicians,” he declared in a letter to his friend Benjamin Rush, have “no more regard for the truth than the devil. . . . I suspect that this Lying Spirit has been at work concerning Burr. . . . But [even] if his [Burr’s] guilt is as clear as the noon-day sun, the First Magistrate [President Jefferson] ought not to have pronounced [Burr guilty] before a jury had tried him.”4
The President’s message to Congress set off a relentless wave of accusations against Burr that splashed across the pages of the nation’s press. By the time Burr returned to Washington, rumors swirled in and about the capital that he was plotting every imaginable evil the human mind could conjure. President Jefferson stunned his former vice president, however, with a cordial invitation to confer for several hours at the presidential mansion—and remain for dinner. After Burr had briefed the President on ferment in the West, Jefferson invited Burr to return for another conference and dinner—and then another . . .
With each visit—and dinner—Burr and Jefferson seemed to part on good terms, with the President saying he had no objection to Burr’s settling in the West and eventually returning to Washington as a representative from his new home territory. Burr left, therefore, in an ebullient mood, intending to return west to buy and settle on lands he had leased in northern Louisiana and develop a new community and constituency there.
Although rumors of Burr’s activities reached the ears of Chief Justice Marshall in Richmond, he, like most Americans outside the nation’s capital, paid little notice. That would soon change.
By the time Burr reached Ohio thousands of young men and women had boarded westward-bound wagons to begin new lives. Most sought—and needed—charismatic figures to lead them into the western unknown, and Aaron Burr, the son and grandson of all but saintly churchmen, stepped into that role. A few who followed him dreamed of gold and silver, but most sought only to settle and farm the rich soil he promised to sell or lease to them—in 100-acre parcels.
By the time Burr reached Nashville on his second trip west, his followers numbered about forty young men with ten hunting rifles and two shotguns on fifteen boats. More young men stood along the river’s edge hoping to find boats to join his trip to the Promised Land. Andrew Jackson urged his wife’s nephew to join Burr in the new settlement.
Although Burr’s boys intended nothing more aggressive than tilling land in northern Louisiana, increasingly sinister rumors dogged his movements. President Jefferson urged western governors “to have him strictly watched and on his committing any overt act unequivocally to have him arrested and tried for treason, misdemeanor or whatever other offense the act may amount to.”5 The President inflated Burr’s young followers into an “army” of “fugitives from justice or from their debts . . . adventurers and speculators of all descriptions.”
Burr’s conspiracy . . . combined the objects of separating the western states from us, of adding Mexico to them, and of placing himself at their head. . . . He probably induced near a thousand men to engage with him. . . . The first enterprise was to have been the seizure of New Orleans.6
Burr expressed shock when he learned of the President’s accusations. “If there exists any design to separate the West from the eastern states,” he protested, “I am totally ignorant of it. I never harbored or expressed any such intention to any one, nor did any person ever intimate such design to me.”7
In December 1806 the President set loose the bulldog Federalist District Attorney Joseph Hamilton Daveiss to hunt Burr down and bring him to bay. Burr appeared before the grand jury with his attorney, the newly appointed Kentucky Senator Henry Clay. He denied Daveiss’s charges, and after Daveiss failed to produce any witnesses, the grand jury discharged Burr. A crowd waited outside the courthouse to cheer, but the cheers quickly died when the relentless Daveiss ordered Burr arrested as a traitor. Two weeks after his first court victory Burr testified before a second grand jury. Again, he was unequivocal:
I have no design nor have I taken any measure to promote a dissolution of the Union or a separation of any one or more states. . . . I have neither published a line on this subject nor has anyone, through my agency, or with my knowledge. I have no desire to intermeddle with the government or to disturb the tranquility of the United States, or of its territories, or any part of them. My views have been fully explained to and approved by several of the principle officers of government, and, I believe, are well understood by the administration and seen by it with complacency. They are such as every man of honor and every good citizen must approve.8
“There have been . . . some curious stories lately,” a surprised Chief Justice Marshall wrote of Burr to his brother James Markham. “Burr is . . . being denounced as a traitor.”9
In a rare act by an attorney on either side of a proceeding, Kentucky attorney Henry Clay compared Daveiss’s pursuit of Burr to the “inquisitions of Europe,” then pledged his own “honor and innocence” as a state legislator on behalf of his client. Again, Daveiss failed to produce witnesses or evidence. When he called several editors to testify, they admitted they had printed rumors as if they were truths and had no evidence of any Burr conspiracy.
“When the grand jury returned the bill of indictment not true,” Clay exulted, “a scene was presented in the courtroom which I had never before witnessed in Kentucky. There were shouts and applause from an audience, not one of whom . . . would have hesitated to level a rifle against Colonel Burr if he believed he aimed to dismember the Union or sought to violate its peace or overturn its Constitution.”10
Fearful that Burr’s back-to-back acquittals might shift the President’s focus to him, Wilkinson sent Jefferson what became famous as the “cipher letter.” Purportedly written in code by Burr, the cipher letter disclosed Burr’s alleged plans to march southward with a force of 10,000 men to seize New Orleans and rendezvous with the British navy for a subsequent land-and-sea assault on Mexico. Wilkinson then warned the governor of New Orleans that Burr was approaching with a force that had magically shrunk to 7,000. Although he asked the governor to declare martial law, the governor refused but was powerless to prevent Wilkinson—still military commander in Louisiana—from declaring martial law himself.
Wilkinson sent troops on a campaign of terror against anyone with even the most tenuous ties to Aaron Burr. They arrested four of Burr’s friends, a handful of lawyers, a dozen public officials, including a sitting judge and a former Kentucky senator, rejecting all petitions for habeas corpus and shutting down newspapers that printed even a word about the arrests.
As news of the chaos in and about New Orleans reached Washington, President Jefferson’s alter-
ego in the Senate, William Branch Giles of Virginia, acted to legalize Wilkinson’s actions by proposing and winning passage of legislation automatically suspending habeas corpus for three months for anyone charged with “treason, misprision of treason, or other high crime or misdemeanor endangering the peace, safety, or neutrality of the United States.”11
Chief Justice John Marshall and his Supreme Court intervened, however, issuing writs of habeas corpus for and freeing all Burr aides whom Wilkinson had arrested. There had been no evidence to support charges of treason against them, Marshall thundered. In freeing them, Marshall cited Article III, Section 3 of the Constitution:
Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.12
Marshall barked at the President’s attorneys as if he were chastising stupefied school boys: for anyone to be guilty of treason “war must actually be levied against the United States.”
However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. . . . There must be an actual assembling of men for the treasonable purpose to constitute a levying of war. . . . There is not one syllable which has a necessary or a natural reference to an enterprise against any territory of the United States. . . . It is, therefore, more safe as well as more consonant to the principles of our Constitution that the crime of treason should not be extended to doubtful cases.13
Incensed by Marshall’s decision, Senator Giles growled about impeaching the Chief Justice and introducing a constitutional amendment to strip the Supreme Court of its power of judicial review. But others called the Marshall decision “a triumph of reason and law over popular passion and injustice . . . the triumph of civil over military authority.”14
Some members of the House responded by demanding an explanation from the President for Wilkinson’s actions, and on January 22, 1807, the President disclosed what he thought were the details of the Burr conspiracy. Although he admitted that his information was based on a “mixture of rumor, conjectures, and suspicions . . . difficult to sort out from real facts,” he asserted his trust in Wilkinson, who, he said, had displayed the “honor of a soldier and fidelity of a good citizen.” Burr’s guilt, the President emphasized without presenting evidence, was “beyond question.”15
By then Jefferson had ordered federal marshals to hunt Burr down and arrest him. One of them reached Ohio and warned Governor Edward Tiffin of an impending attack by Burr’s phantom “army”—now inflated to 20,000 men. Tiffin ordered his militia to seize Burr’s boats in Marietta and install cannons on the hills in and about the city to repel any attempt by Burr to take the city. Militiamen seized and plundered the lavish Ohio River island mansion of a wealthy family that had offered Burr their hospitality on his previous trips.
As Wilkinson whipped up government authorities to repel Burr’s hordes of imaginary invaders, Burr himself was in Frankfort, Kentucky, appearing before yet another grand jury, with no idea of the campaign that Jefferson, Wilkinson, and their army of aides and attorneys were mounting against him.
“Never in the history of the United States did so powerful a combination . . . unite to break down a single man as that which arrayed itself against Aaron Burr,” declared historian Henry Adams. Adams’s grandfather John Quincy Adams was in the Senate at the time and had led those who frustrated President Jefferson’s attempt to seize control of the US Supreme Court by impeaching Justice Samuel Chase. “In the face of all this provocation,” Henry Adams stated, “the vice president [Burr] behaved with studied caution and reserve.”16
Burr did not realize the enormity of the forces arrayed against him until, exonerated of all wrongdoing and set free by a third grand jury, he set off downriver on the Ohio toward the Mississippi River and Natchez. On January 10 he learned of Wilkinson’s ruthless roundup of his friends and the reward Wilkinson was offering for his capture. With a price on his head, Burr realized he faced summary execution if captured.
Ironically, Wilkinson knew the only way to avoid charges of treason himself was to silence Burr and send him to the grave bearing responsibility for Wilkinson’s own plot.
Alone suddenly, at the mercy of any passing bounty hunter, Burr fled, hoping to survive long enough to surrender to civil authorities in Mississippi. Jefferson and Wilkinson cited Burr’s flight as proof of guilt, and as rewards for Burr’s head multiplied, he faced imminent death as he rounded every tree and turn of the river.
On March 3, 1807, a posse of civil deputies halted and searched Burr’s “fleet” of nine boats and sixty would-be settlers as they sailed on the Tombigbee River in northeastern Mississippi toward Natchez. When the search revealed only a few rifles, shotguns, and supplies, the posse let them continue, and Governor Cowles Meade concluded, “His object is agriculture and his boats are the vehicles of emigration.”17
Eager to end the manhunt, Burr went voluntarily to the US territorial district court to testify before a special grand jury—his fourth—and the jury refused to indict him.
“We are of the opinion,” the jury foreman proclaimed, “that Aaron Burr has not been guilty of any crime or misdemeanor against the laws of the United States or of this territory or given any just alarm or inquietude to the good people of the territory.”18
As a token of apology to Burr, the grand jury filed a “grievance” against Wilkinson for sending the militia after Burr and for “the destruction of personal liberty” in his round-up and imprisonment of Burr associates in New Orleans.
Jefferson’s chief judge in the Mississippi Territory, Thomas Rodney, rejected the grand jury’s decision and ordered Burr to remain within the court’s jurisdiction. When Burr saw Wilkinson’s thugs ride into the area, however, he feared for his life and fled, vanishing into the Alabama territory. After a local official recognized him two weeks later, Alabama militiamen seized him and led him under guard on the long journey to Richmond, Virginia.
On March 26 a heavy military escort led Burr into Richmond, where, after four days in jail, he appeared for arraignment before Chief Justice John Marshall, still riding circuit and sitting in Richmond Circuit Court. Almost three decades and hundreds of miles removed from the battlefield that thrust them together as comrades, two of the last surviving Men of Monmouth stood face to face, the one seeking justice, the other dispensing it.
Burr faced two charges: the first, leading a military expedition against Spain; the second, treason against the United States. Because it was an arraignment, Marshall made it clear that the prosecution did not have to prove the charges to hold Burr for trial, but it did have to show probable cause. On the charge of treason, he declared, the government had failed to present any probable cause or evidence of “an overt act” of treason.
“The assembling of forces to levy war is a visible transaction, and numbers must witness it,” Marshall scolded the prosecution. “Several months have elapsed since this fact did occur, if it ever occurred. More than five weeks have elapsed since the Supreme Court declared the necessity of proving the fact, if it exists. Why is it not proved?”
As the prosecuting attorney sat in silence, Marshall answered his own question: he concluded that no evidence of treason existed and dismissed the charge. He did, however, hold Burr over for trial on the charge of leading an expedition against Spain—nothing more than a misdemeanor. He set bail at $10,000—more, perhaps, to protect Burr from retaliation by the state than the reverse.
Marshall’s dismissal of the treason charge against Burr incensed Jefferson—more so because it was the second time in his presidency that both Marshall and Burr had challenged Jefferson’s authority. In the belief they were in collusion, Jefferson called Marshall’s decision one of many “tricks of the judges.” He charged Marshall and the Federalists with “making Burr’s cause their own—mortified only that
he did not separate the Union or overturn the government.”
Jefferson’s hate seemed to know no bounds. In a sometimes irrational letter to his senatorial manservant Virginia Senator William Branch Giles, Jefferson ranted of “treason stalking through the land in open day”—only to admit in the next sentence that “our information having been chiefly by letter, we do not know of a certainty yet what will be proved.” Scoffing at Marshall’s insistence on “an overt act” as proof of treason, Jefferson asked Giles whether “letters and facts published in the local newspapers, Burr’s flight, and the universal belief or rumor of his guilt [are not] probable ground . . . to put him on trial?”
Jefferson then raised his true political colors and displayed his disdain for civil liberties and the right to trial by jury: “The nation,” he declared,
will judge both the offender and judges for themselves. . . . They will see and amend the error in our Constitution, which makes any branch independent of the nation. They will see that one of the great coordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenses which endeavors to overturn the Constitution and are themselves protected in it by the Constitution itself.19
Jefferson urged Giles to propose a constitutional amendment to limit the terms justices could serve, to make their removal easier, and to make them directly responsible to voters.
“If their protection of Burr produces this amendment,” he said of Marshall and the justices, “it will do more than his condemnation would have done.”20
Jefferson ended his diatribe with a disingenuous remark that belied his ferocious campaign to destroy the former vice president: