ON JANUARY 10, 1807, Burr with his small band of followers landed at Vicksburg and, for the first time, learned that the president had ordered his arrest. Wilkinson, who might have enabled the conspiracy to succeed, had made its failure inevitable. In despair, Burr surrendered to Cowles Mead, Mississippi’s acting governor.
The disparity between the eighty men who came ashore with him and the “eight to twelve thousand” that Wilkinson talked of later caused the general to be ridiculed. There were, however, signs of the support that Burr commanded in the south, even after Jefferson’s proclamation was known.
Only thirty or forty of the Natchez militia responded to the muster call to defend the city, and when Burr was indicted before a grand jury in Washington, Mississippi, its members not only denounced Burr’s arrest as a triumph for “the enemies of our glorious Constitution” but immediately found him “not guilty of any crime or misdemeanor against the United States.” Jefferson and Dearborn believed that a grand jury in New Orleans would have brought in similar verdicts had his supporters been arraigned there.
Once set free, Burr bade an emotional farewell to his men on February 13 and disappeared into the wilderness. The failure to capture him in Mississippi despite Wilkinson’s offer of a five- hundred-dollar reward, and the deployment of a snatch squad of officers in civilian clothes, meant that the potential threat continued. So, too, did Wilkinson’s hard- line policy despite the release of some of his prisoners, including Bradford. Reconvened in January, the legislature protested angrily against the general’s destruction of civil liberties, forcing Claiborne to offer a partial apology on his behalf. “I believe the General is actuated by a sincere disposition to serve the best interest of his country,” he declared, “but his zeal, I fear, has carried him too far.” By then, however, it was apparent that the general’s methods were endorsed by President Jefferson and his administration.
TWO DAYS AFTER DEARBORN learned of Wilkinson’s loyalty from Lieutenant Smith, he gave the general blanket powers to “dispose of the troops in such manner, as will most effectually intercept and prevent any unlawful enterprize.” In addition Dearborn ordered, “Any person or persons who may be found in or about your camp or post, with evident intention of sounding either officer or soldier, with a view to an unlawful expedition, should be arrested.”
Any lingering doubts about his past associations—Dearborn commented, “Your name has been very frequently mentioned with Burr, Dayton and others”—evaporated with the arrival of the upright Isaac Briggs.
As the Quaker recounted, “After a most arduous journey, in the midst of a severe winter, of more than 1200 miles, 600 of it through wilderness, on the first day of the year, 1807, I arrived in Washington city, and waited on the President with my despatches. Immediately on his opening them, he exclaimed with earnestness, ‘Is Wilkinson sound in this business?’ I replied very promptly, ‘There is not the slightest doubt of it.’ ”
From that moment, Jefferson showed himself ready to support whatever Wilkinson did, regardless of the cost to the principles of individual liberty and the rule of law. In reply to the letters that Briggs delivered, including copies of those from Burr and Dayton, Jefferson urged the general on January 3, 1807, to “act on the possibility that the resources of our enemies may be greater and deeper than we are yet informed.” A month later, answering a flood of letters from Wilkinson detailing his measures to protect New Orleans, Jefferson wrote approvingly, “We were pleased to see that without waiting for [the orders sent in November] you adopted nearly the same plan yourself and acted on it with promptitude.”
By then Bollman and Swartwout, the first of the prisoners to be arbitrarily arrested and deported, had arrived in the capital, yet the president still insisted that the threat of attack by an “overwheming force” from the Mississippi justified Wilkinson in what he did. He offered a single note of caution. Referring to popular opinion “in a nation tender as to anything infringing liberty, especially from the military,” Jefferson expressed the hope that “you will not extend this deportation where there is only suspicion . . . in that case public sentiment will desert you, because seeing no danger here, violations of the law are felt with strength.” Even then, the president made a specific exception for the ringleaders, Burr and Blennerhassett, who should be deported immediately and without trial to Washington, “should they fall into your hands.” Of Wilkinson’s military rule, he said nothing directly, but alluding to rumors that the administration was distancing itself from the general, the president ended, “Be assured you will be cordially supported in the line of your duties.”
Until then no one had been more tender about the military infringing liberty than Jefferson—even years later, in correspondence with John Adams, he did not hesitate to describe the comparatively mild restrictions on free speech contained in the alien and sedition laws as “terrorism.” The explanation that Jefferson himself offered for his endorsement of Wilkinson’s behavior was sent to John Colvin, editor of two Republican newspapers and of Jefferson’s own memoirs: “A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.” Wilkinson’s need to defeat the threat posed by Burr “constituted a law of necessity and self- preservation, and rendered the salus populi [safety of the people] supreme over the written law.”
This was— and is—a specious argument, one based on circular logic, since the agency that restricts liberty invariably maintains that it is the only competent judge of the danger. As Adams tartly pointed out, he could claim that the alien and sedition laws were made necessary by the threat of “terrorism” from Jefferson’s own Republican clubs with their close links to the Jacobins in France, who were, after all, the originators of terror as a political tactic.
Recognizing the inherent weakness of his reasoning, Jefferson did suggest an extra safeguard to Colvin, that of retrospective judgment. “The officer who is called to act on this supreme ground, does indeed risk himself on the justice of the controlling powers of the constitution, and his station makes it his duty to incur that risk.” Thus Wilkinson might later find himself held criminally responsible for his actions. In his defense, however, he had only to claim honest intention, because as Jefferson insisted, “In all these cases, the purity and the patriotism of the motives should shield the agent from blame.”
Guided by the hints in Jefferson’s letters, Wilkinson adopted this as his own defense. “I have never attempted to justify the infractions of the law which were forced on me in New Orleans by an impending great calamity,” he told Daniel Clark in May 1807. “Yet I can never repent what I have done, and would repeat it a thousand times, for if a destructive evil to a national community can be arrested by the ruin of an individual, should he pause? I think not, and under this impression I have acted.”
On March 3 Burr was arrested on the Mobile River by a member of Wilkinson’s snatch squad, Lieutenant Edmund Gaines. When the news arrived in New Orleans at the end of the month, the mood in the city changed abruptly. The general relaxed his grip, armed patrols ceased, the seamen were released, and normal commercial life began to return.
On April 20, Wilkinson left New Orleans to return to Washington. He had reason to believe that his performance as the patriotic hero had been a triumph. Not only had he defeated Burr’s conspiracy, but he had done so in a way that commanded the warm approval of the government and, most important, of Thomas Jefferson himself.
26
TWO TRAITORS ON TRIAL
THE ONE AREA WHERE JAMES WILKINSON remained vulnerable was his past. It was certain that Jonathan Dayton and Aaron Burr would in their defense revive the Western World’s allegations of his “holding a commission and
drawing a pension from the government of Spain.” His first, surprising step, taken while still in New Orleans, was to approach the governor of West Florida, Vizente Folch, to help clear his name. Relying, as he put it, “upon those sympathies which connect military men throughout the civilized world,” he asked Folch to give an assurance that Wilkinson had never been paid by Spain or held a Spanish commission. Since Folch had been living with Miró in 1787 when Wilkinson first appeared in New Orleans and “possessed his confidences in a greater degree” than anyone else, this was tantamount to asking him to lie.
Folch was well prepared, however, because, as he informed Captain General Someruelos, “during the Burr disturbances, the general has by means of a person in his confidence [Thomas Power] constantly maintained a correspondence with me, in which he has laid before me not only the information which he has acquired, but also his intentions for the various exigencies in which he might feel himself.” To give Wilkinson the clearance he wanted, Folch first declared that had the general been guilty, Spanish archives would certainly contain some record of his commission and pension. Then, he announced grandly, “Under my sacred word of honour, no such document, nor any other paper tending to substantiate such assertions, exists in the records in my possession.”
As one critic pointed out, Folch’s declaration was narrow and qualified since he made it in Pensacola while the relevant papers were held in Havana. But at least his Spanish handlers were now prevented from making any embarrassing revelations. In similar fashion, the general persuaded Thomas Power to provide a certificate— to be shown only to the president, Power specified—declaring that Wilkinson had never acted as a Spanish agent. Finally Wilkinson set about insulating himself against the damaging information held by Daniel Clark.
During the summer of 1806, Clark’s loyalties had made another dizzying turn when he at last secured the nomination to be the Orleans Territory’s representative to Congress. In the fall, when rumors of Burr’s movements first reached the city, Claiborne immediately assumed that “the delegate to Congress from this Territory, Daniel Clark, is one of the leaders [of the conspiracy].” But, forced to choose which way to jump, Clark turned against Burr. In mid- October, he advised members of the legislature, including Joseph Bellechasse, commander of the city’s militia, “to forget any personal animosity towards the Governor, and to rally round the government, and die, if necessary, in its defence.” Then he hastily left the city to take up his duties in Washington.
As early as December, Wilkinson had sent Clark a reminder that each of them knew too much about the other’s links to Burr. “Suspicion is afloat! and numbers are implicated,” he wrote, and added with dramatic underlining, “Thank God, your advice to Bellechasse, if your character was not a sufficient guarantee, would vindicate you against any imputation.”
In January 1807, at the height of his dictatorial rule, the general recalled in another letter Clark’s pro- Creole comment about not wanting his children to be part of the United States. “It is a fact,” Wilkinson wrote, “that our fool [Claiborne] has written to his contemptible fabricator [the president] that you had declared if you had children you would teach them to curse the United States as soon as they were able to lisp.” The theme appeared for a third time in March 1807: “Mr. Burr and his accredited agents have made, or endeavour to make, much use of Mr. Clark’s name.” Wilkinson assured him, “General W. has never mentioned it.”
This letter crossed with one sent by Clark from Washington warning Wilkinson, “You are calumniated from all quarters,” with rumors “of your having received 10,000 dollars, at Orleans, of the Spaniards when you went to take possession. I have pointed out the utter impossibility of such a thing.” To this, Wilkinson replied in May, smoothly assuring Clark, “A friendship, founded on almost twenty years acquaintance makes it my peculiar duty, pending the highly important developments which are at issue, to watch over and defend your fame, should it be implicated in the discussion.”
It was a dangerous strategy. As preparations were made for Aaron Burr’s trial, and public excitement mounted about who else had been involved, one or another might conclude more was to be gained from blowing the whistle than keeping such dangerous information secret.
Unnoticed amid the storm of interest stirred up by Burr’s appearance in court was the return to the United States on July 1 of Captain Zebulon Pike and most of his party. An epic of courage and hardiness had taken them close to Santa Fe, where they were, as expected, captured by the Spanish, but not until February 1807. As prisoners, they were then taken down the Camino Real deep into Mexico, ending up, ironically, in Chihuahua, Wilkinson’s ultimate goal. There Salcedo ordered Pike and his men to be released, and they were escorted back through Texas to the border. The expected rescue had never come, the expected war with Spain was not fought, and what was perhaps the real conspiracy with Burr remained hidden.
BY THE TIME JAMES WILKINSON reached Washington, his enemies were waiting for him in force. Chief among them was Aaron Burr. At the time of his arrest, he exclaimed bitterly to Mississippi’s attorney general, “As to any projects or plans which may have been formed between General Wilkinson and myself heretofore, they are now completely frustrated by the perfidious conduct of Wilkinson, and the world must pronounce him a perfidious villain.” With the help of his daughter, Theodosia, and the wealthy Blennerhassett, a powerful legal team under the leadership of Edmund Randolph, George Washington’s attorney general, was assembled to defend Burr, their overt aim being to prove both Burr’s innocence and the general’s guilt.
“Our ground of defence is that Mr. Burr’s expedition was in concurrence with General Wilkinson, against the dominions of the king of Spain, in case of a war,” George Wickham, the most damaging of Burr’s counsel, stated bluntly. “If we prove that, at the time Wilkinson was pretending to favor Burr’s expedition . . . he was receiving a Spanish pension, this will explain his conduct. He defeated the enterprize of Burr by hatching a charge of treason against the United States, on purpose to serve the king whose money he was receiving!”
Others were ready to provide corroborating detail. Even before his arrest, John Adair had pinned the blame for failure on Wilkinson. “Why, something would have been done if Wilkinson had not turned out a damned coward,” he declared on hearing the news from the Sabine River, “for if he had attacked the Spaniards, and the blood of one man had been spilt, the government could not have stopped the western people.” Arrested and shipped north as a prisoner by his former friend, Adair had immediately been released on a writ of habeas corpus and gladly supplied the defense with copies of Wilkinson’s numerous letters encouraging him to “come on” to Mexico.
Luther Martin, the grandstanding, alcoholic, self- appointed guardian of democracy, and best known of Burr’s team, tracked down Major James Bruff and encouraged him to testify. As Bruff excitedly told everyone in the stagecoach carrying him to Richmond, Martin had promised “he would lash General Wilkinson into tortures” with his cross-examination. The major brought not only his own, far from credible, testimony concerning alleged confessions of conspiracy that Wilkinson had chosen to reveal privately to him behind locked doors and convenient bushes, but affidavits to the same effect from Wilkinson’s other enemies in St. Louis, inlcuding Samuel Hammond, “with whom General Wilkinson had a conversation nearly similar to the one held with me.” Bruff was joined by Swartwout, and a reluctant Thomas Power, who had been subpoenaed in New Orleans. All contributed to the impression that, as Luther Martin put it, “General Wilkinson is the alpha and the omega of the present prosecution.”
Quite apart from his personal hostility to Burr, Jefferson’s tactics left them little option but to pursue the general. When the president first told Congress about the conspiracy on January 22, 1807, he dated the moment at which the administration realized what was being planned not to William Eaton’s information in October, but to Wilkinson’s letter on November 25 This conveniently obscured the nightmare period when the cabinet lo
st control of events, but it portrayed the general as solely responsible for detecting the conspiracy, and deserving most of the credit for defeating it. By destroying Wilkinson, Burr’s team undermined the very existence of a plot. And behind him was a larger target.
In his address to Congress, Jefferson had declared that Burr “contemplated two distinct objects, which might be carried on either jointly or separately . . . One of these was the severance of the Union of these States by the Alleghany mountains; the other, an attack on Mexico.” His public statements hammered at the theme of Burr’s undoubted guilt in seeking to destroy the Union. In private he went further, referring to “treason stalking through the land,” and accusing the Federalists of “making Burr’s cause their own, mortified only that he did not separate the Union or overturn the government.”
Burr’s defense team responded by issuing subpoenas for the presidential papers, and especially for his letters to the general. “The president has undertaken to prejudge my client by declaring ‘of his guilt there can be no doubt,’ ” Martin thundered in court. “He has let slip the dogs of war, the hellhounds of prosecution, to hunt down my friend. And would this president of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?” It was, on both sides, a political as well as a legal contest.
To Jefferson’s intense frustration, at every hearing, from the first application in February 1807 before the Supreme Court for a writ of habeas corpus for Swartwout and Bollman, the leading judge was the chief justice, John Marshall, an overt Federalist appointed to his position by John Adams in 1801. In releasing Burr’s two messengers, Marshall had laid out what was to be his unchanging opinion, that the constitution specified that “treason against the United States shall consist only in levying war against them,” and that “conspiracy is not treason . . . To conspire, and actually to levy war are distinct offences.” As a result, when Burr appeared before Marshall at a preliminary hearing on March 31 in Richmond, the capital of Burr’s home state, Marshall would indict him only on the grounds of levying war against a foreign power, a charge that amounted to a misdemeanor. It was left to the grand jury, whose hearings began on May 22, to decide whether to reinstate the charge of treason. Again in charge of the case, this time as judge of the circuit court in Virginia, Marshall did not challenge the president’s refusal to let his papers be subpoenaed, although he continued to make plain his opinion that the treason charge was unsound.
An Artist in Treason: The Extraordinary Double Life of General James Wilkinson Page 34
