Marshall did leave an opening for the president, however, as he indicated that an “assembly” of men to levy war might be sufficient, and there could be little doubt that a fair number of men had assembled on Blennerhassett Island, although it would be hard to say for exactly what purpose. But this was the meat of the matter when the case was finally convened at the biggest hall in town, the neoclassical Hall of Delegates behind the Virginia state capitol, which happened to have been designed by Jefferson. What happened at Blennerhassett Island that might constitute treason?
By now, the legal teams were in place, and they were formidable on both sides. Burr’s was led by Edmund Randolph, Washington’s attorney general, assisted by Richmond’s own John Wickham, and the prolix Luther Martin, who was better known as “Lawyer Brandy-Bottle” for his primary indulgence, but who had also won the sobriquet “impudent federal bull-dog” for his work defending Supreme Court Justice Samuel Chase from impeachment. But Burr himself would direct the effort and come to be recognized as the ablest lawyer in the room. For the prosecution, Jefferson’s attorney general Caesar Rodney, nephew of the Rodney who had weighed in on the case in Mississippi, helped by the US attorney George Hay. Theirs would be the harder job.
The first order of business was to request indictments of a grand jury, which was a matter of the prosecution presenting enough evidence to show it had a case. When Marshall took the bench and gaveled the court into session, Burr looked far more the lawyer than the client. “There he stood,” one commentator marveled, “as composed, as immovable, as one of Canova’s living marbles.” He had the simpler case to make: He planned no hostilities against the United States, only against Spain, and that would wait for an American action, making it a legal “filibuster,” not a violation of the Neutrality Act. Without a war, he would simply move to his land in the Bastrop Tract. And Burr was blessed in this: Any witnesses who might say different were tight allies such as Bollman and Swartwout, who would never dream of such disloyalty. Moreover, Burr had a lovely knack for legal histrionics. When George Hay begged the court put Burr on “the same footing with every other man charged with a crime,” Burr sprang to his feet. “Would to God that I did stand on the same ground with every other man! This is the first time I have been able to enjoy the rights of a citizen.”
No sooner had the court begun than it halted again, waiting for the appearance of the only man capable of solving the mystery of Burr’s intentions and his acts to advance them. That was General Wilkinson, and the court had already waited on him a month but would have to wait three weeks more, the legal talent getting itchier by the day. But Burr went on the offensive, demanding the original letter that Wilkinson sent Jefferson, not his copy, and the military orders that Jefferson issued in response. When Jefferson refused to hunt them up, citing the demands of his position, Marshall allowed Burr to issue a subpoena, thus turning the tables on the chief executive. Jefferson insisted that some of the requested papers were simply too sensitive to reveal—and he would be the sole judge of that. Or so he wished. “Executive privilege,” as it came to be called, was not as sweeping as he might like, and Marshall required him to deliver the essential documents or face contempt like anyone else. That did not sit well with the president, but he acquiesced.
While that was still being argued, Wilkinson appeared magisterially, as if from the ether, in a gold-trimmed uniform, a sword dangling from his belt. “Like a turkey cock,” wrote future novelist Washington Irving, who was attending the trial, “and bracing himself up for the encounter of Burr’s eye.”
By now, the city of Richmond had doubled in size, people jamming hostelries for miles around, all the ladies swooning over the image of the moody sorcerer at the lawyers’ bench. It was the moment everyone was waiting for, when the accused faced his accuser. Irving watched closely: “At the mention of his name, Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly resumed his formal position, and went on conversing with his counsel as tranquilly as ever.” He had to marvel at Burr’s performance. “There was no appearance of study or constraint in it; no affectation of disdain or defiance; a slight expression of contempt played over his countenance, such as you would show on regarding any person to whom you were indifferent, but whom you considered mean and contemptible.”
Wilkinson of course saw it differently, as he told Jefferson. “My eyes darted a flash of indignation at the little traitor,” and saw a Burr laboring under “the weight of conscious guilt, with haggard eyes in an effort to meet the indignant salutation of outraged honor.”
When it came to his testimony, Wilkinson had the worst of it, as much of it was so suspicious that the grand jury nearly indicted him as well. But it did indict Burr and Harman Blennerhassett, and five of Burr’s intimates, including his kinsman Senator Dayton of New Jersey. The trial would commence on August 3. Until then, Burr would be transferred to a special suite in the Richmond penitentiary, which was hardly pleasant, but did come with a servant, and the ladies vied to see who could furnish him with the most sweetmeats and ice.
When the trial finally resumed, it fell to the slow business of collecting jurors and drawing witnesses. When arguments began, it became clear that the government would follow the indictments and place the scene of Burr’s supposed levy of war at Blennerhassett Island on December 10 of the previous year, even though Burr was in Kentucky at the time. To put that one over, the prosecution had to create a doctrine of “constructive treason,” meaning that Burr was in the middle of it, even if he was miles away. It would also hope to show that everything that came after was somehow embedded in the island activities as well. But witness after witness went by without anyone being able to say that he had actually seen what the Constitution demanded—an overt act of war against the United States—and some of them, like Commodore Truxtun, declared the opposite, that he was more ready to take on Spain than Burr was. And so it went—much reported conversation, scene setting, rationalizations. And more bloviation on the part of the large-lunged lawyers present. But nothing the prosecution could say would produce the evidence of war making, and it went even worse for them when Marshall delivered his opinion that, under the indictment, any act of war had to occur on the island on the tenth; anything elsewhere or after was irrelevant. In short, it had to be visible, and it had to be there, just as he said all along. “The overt act must be proved . . . by two witnesses. It is not proved by a single witness.” And when the case was finally given to them, the jury had no choice but to agree, promptly finding Burr not guilty “by any evidence submitted to us.” At that, Burr leapt to his feet and insisted that the reference to any evidence was mere editorializing, and Marshall agreed that the bit about evidence should be struck. He was not guilty, and that was all he was.
“Marshall has stepped between Burr and death,” wrote embittered prosecutor William Wirt.
With Burr found innocent, the district attorney saw no reason to press the case against Blennerhassett and the rest. Free, Blennerhassett felt nothing but revulsion at Burr as he paraded about town with Theodosia, who had come to comfort her father during his ordeal, and he schemed to retrieve the heavy loans he’d extended Burr for his adventure, hopeless as that would prove to be. As it was, the poor man lost everything—his mansion, his enchanted island, his fortune. Despite the thunderous rejection of his claims of treason, Jefferson insisted on proceeding with the lesser charge of making war on a foreign country, a misdemeanor. “The criminal,” as Jefferson called Burr, “is preserved to become the rallying point of all the disaffected and worthless of the United States.” But it went no better for him. Wilkinson testified for five days, leaving even the prosecutors flummoxed as to what to make of his story. It came as a blessing that Marshall issued a ruling on a motion that brought a halt to the fiasco, instructing the government to “desist from further prosecution,” as Burr gleefully wr
ote his daughter. And that was it. Whatever he’d actually done, Burr’s legal calamities were over.
FIFTY-ONE
G.H. Edwards
IF BURR HAD hoped that his legal victory would somehow make him a national hero, he was mistaken. After Weehawken, he’d had to slink south from New York, a fugitive from justice, and now he’d had to creep north from Richmond, an obvious scoundrel. When he arrived in Baltimore, he was greeted by angry crowds who were ready to hang him in effigy and who dragged a proxy of him “habited for execution” about the city “in full huzzah in fife and drum playing the ‘Rogue’s March.’” The streets were papered with hundreds of handbills making dire threats against “his Quid majesty,” and fifteen hundred citizens surged down Chestnut Street breaking windows in their hostility toward the diabolical ex–vice president. Burr had to sneak out to Philadelphia by mail stage to avoid being seized by a mob.
Burr’s financial woes were so desperate that some friends had to cobble together emergency loans to keep him out of debtors’ prison. At fifty-three, he was weary and impoverished, spurned by virtually all, without political prospects or the grand plans that had always saved him before. In Philadelphia, he holed himself up in a dreary French boardinghouse, so depressed with the “fiend ennui” that his Philadelphia friend Charles Biddle feared Burr would “end his sufferings with a pistol.” He received some satisfaction in learning that New Jersey had decided to quash the murder indictment against him, but a congressional investigation led by John Quincy Adams determined that Burr would have caused “a war of the most horrible description . . . both foreign and domestic,” and decided that only legal technicalities saved him. Burr concluded that if America could offer him nothing except hostility, he would sail to England to raise funds from the Crown to remount his campaign against Spanish Mexico after all. If he had not considered treason before, he would consider it now.
He boarded the packet Clarissa Ann, bound for England under the alias G.H. Edwards—after his reverend grandfather—on June 9, 1808; ever devoted, Theodosia was there to see him off with “tears and reproaches” for his embarking on such a hazardous voyage. He told her to take a pseudonym as well, selecting “Mary Ann Melville” (although the novelist would not be born for more than a decade). Intended as a martial quest, his “grand Hegira” would be more a spiritual journey, “a sort of non-existence,” more inward than outward, and, for a man of action, it would pose psychic challenges that dwarfed the practical ones. Intended as a brief sojourn, it ended up lasting four years, each one more hellish than the last, until it seemed that he might never return. If the rest of his life is shrouded in secrecy, his years of exile are quite literally an open book.
Hamilton’s letters generally took the form of a legal brief, charging straight ahead, but Burr’s always tended to be more looping, only occasionally touching down at the matter at hand. For this journey, he kept an immense journal for Theodosia, the person he loved most, and perhaps only, and he often addressed it directly to her. He brought her picture with him, too, always to keep on view in his rooms. The journal amounted to a thousand-page letter to her. More than the likeness, the journal had the effect of bringing him her, but it also allowed a man of secrecy an obligation of disclosure. It presents an exhaustive view of his daily rounds, with special emphasis on his parties with the European elite, whose quality, to be sure, eroded slightly as the months went by and Burr’s gloss dimmed. Still, the book is a blizzard of names:
Arrived at Dr. Lettsome’s at 6. They had but that moment sat down to dinner. Colonel Elliott ; Smith, avoc. [advocate] solicitor to Board of Ordnance; Norris, surgeon; Cooke, physician ; Temple, physician. Very gay and social. Dinner and wines excellent. Norris engages me to dine on Monday. To William Godwin’s at ½ p. 9.
Godwin was the widower of Burr’s sainted Mary Wollstonecraft, and, like her, a staunch believer in the rights of women. But Burr’s greatest catch was the utilitarian philosopher Jeremy Bentham; as a man who brought clarity to the mysteries of right and wrong, he was hailed as the “Newton of the moral world.” Burr giddily passed several days with him in spirited conversation about “tattooing, how to be made useful; of infanticide; of crimes against Nature, etc. etc.” It was to Bentham that Burr let slip his first recorded words about the duel. Burr revealed he was “sure” he’d kill Hamilton—a notion that left Bentham appalled. “I thought it little better than murder,” he admitted. Nonetheless, Bentham was intrigued by Burr enough to consider moving to the American Southwest to take part in a renewed effort of conquest—until wiser friends persuaded him otherwise.
Interspersed in the social gossip, however, are the more intimate details Burr had always withheld from view. Some are charmingly domestic, as he revealed that he left his room a mess, with his clothes piled on every chair but one, and everything else scattered across the floor; that he was always losing his watch, gloves, house key, and umbrella; and that he was terrible with money, besotted with luxuries that frequently left him destitute.
It is charming that Burr would choose to divulge such homely details to his daughter; the revelation to her of his many sexual affairs, less so. The constant flaunting of his sexuality verges on epistolary incest, forcing Theodosia to see what her father did in the dark. The women are countless. As a single man on the prowl, Burr distinguished between the eligible, the ineligible, and those for hire—but then had at all three. He looked longingly on a woman of sixty-three, dubbing her the best-looking woman of that age he’d ever seen, and he lusted for one “she animal.” But it was the rare woman under thirty whom he did not call “comely,” “lovely,” or “beautiful.” He was insatiable. Even when he was nearly starving, he still found the money for sex. One German lady described his lunging impetuosity as a cross between gauche and halbwilde, or “half-wild.” Burr used the French term muse, referring to an animal’s rutting period, as in this Copenhagen tryst: “The chambermaid, fat, not bad; muse again.” Or this one in France: “From across the hall, the maid came. Muse. I couldn’t send her back.”
He was capable of some seduction himself. In a Paris theater, he gaily chatted up the lady in the adjoining box. Declaring her “full of genius,” he asked, “Upon which of your talents do you rely most?” She replied with raised eyebrows. “I have cultivated only the art of pleasing.” Unfortunately for Burr, things devolved from there. She offered him supper at her home the next evening, but he preferred to call on her in the afternoon. But when he arrived, he found that she came encumbered with two children. Burr fled this “dangerous siren.”
Unfortunately, his other conquests did not go nearly as well. His quest for an audience with a minister of the king to obtain funding for his Mexican adventure, referred to in his journal as “X,” already hampered by Burr’s failure in America, was now done in by the Spanish would-be conquistador Miranda. He had just tried the Mexican gambit with the king’s money and come up empty. This was communicated to Burr by silence, which had an increasingly portentous edge.
Then early on the morning of April 4, 1809, at his modest lodgings at 35 Saint James Street in London, he awoke early with “a confused presentiment that something was wrong.” Two months before, he’d been sued by an irate London bookseller for a four-year-old debt, which Burr lacked the money to pay. He’d disappeared to Saint James Street, where he lived under yet another assumed name, Mr. Kirby (he had accumulated a half dozen pseudonyms by now), this time with a Madame Prevost, a morsel of twenty-eight (unrelated to his late wife) “sent by the Devil to [seduce] Gamp.” Burr did not resist.
On the fateful morning of the fourth, he tried to evacuate, but too late: “At 1 o’clock came in, without knocking, four coarse-looking gentlemen,” bearing a warrant to seize him and his possessions. Lord Liverpool, secretary of state for home affairs at the British ministry, wanted Burr out of the country, probably at the behest of the Spanish envoy, who did not take kindly his ambitions against his country. The intruders hustled Burr to the Ali
en Office, and he was placed under a loose house arrest with a Mr. Hughes. Burr was unfazed:
To Wedgewood’s; paid 25 shillings for sundries. To Flaxman’s. The Italian wife! To Achaud’s to inform them of the postponement of my journey. (Mem.: At 3 got mutton chop and potatoes at D. M. R.’s.) Mem. : On leaving 35 James street bid dom. to get something for my dinner at 6, and to buy coal, &c. At 6 at Madame Onslow’s. T: Tea and two games chess, &c. Par. a 1o1. At 11 chez D. M. R.; alone. Couche on his sofa.
Meanwhile, the British government was trying to decide how to get rid of Burr. He himself wished to return to America and hoped that his passage to England under the name of Edwards would be no impediment, any more than his posing as a Mr. Kirby now. Since he was born before the revolution, he cheekily claimed that he was a British subject and should be free to come and go—a position that cut no ice with the ministry. It floated the notion of banishing him to a remote island in the North Sea, but in the end he was allowed to sail to Sweden—on the condition that he never come back.
In his journal, Burr does not react to this news. His is largely an accounting of his activities, making one wonder if, after being buffeted about for so long, he was even capable of a reaction anymore. He sailed from Harwich on April 24, 1809, aboard a British packet, the Diana. He had anticipated a relatively brief stay of a few weeks while he engineered his return to America, but when he received no letters from his confederates, he assumed that Britain was intercepting his mail. In any case, Jefferson had remained vigilant against the return of a man he continued to regard as an arch traitor. Burr ended up in Sweden for five months, long enough to pick up some of the language, tour the country, and sample many of its ladies. As his journal attests, he gained free access to the Swedish elite, which is startling for a man in such bad odor. When he finally left, he sailed to Germany, with the idea of working his way across the continent to France, where he hoped to gain an audience with Napoléon and lay before him what he now termed his plan X.
War of Two : Alexander Hamilton, Aaron Burr and the Duel That Stunned the Nation (9780698193901) Page 44
