Rodney must have felt some genuine discomfort, for this was the first and only speech he would give at the trial. He left Richmond, and told Jefferson he would have to resign from the case, mentioning family illness as the cause. Rodney’s excuse sounds implausible, given that Hay had lost his young wife only a week before the examination. More likely, Burr’s former friend simply did not have the stomach for so dubious a prosecution.49
All the arguments were made on a single day. Chief Justice Marshall resumed court on April 1, and gave his opinion. He agreed with the prosecution that the evidence provided probable cause that Burr had organized a military expedition against the Spanish territories. Marshall rejected the defense’s contention that filibustering was acceptable, refusing to buy into Wickham’s argument that the nation was at an “intermediate stage between peace and war.”50
But treason was a different matter. As it was the “most atrocious crime,” and one capable of being manipulated by the “malignant and vindictive passions” common to partisan struggles, Marshall made it clear that, in his judgment, the Constitution offered a precise definition: Treason had to consist in levying war or in giving aid and comfort to the enemy; this high crime required overt acts testified to in open court by two witnesses. For probable cause that Burr had levied war, troops had to have been assembled. Said Marshall, “Treason may be machinated in secret, but it can be perpetuated only in the open day and in the eye of the world.”51
Marshall chastised the prosecution for failing to collect any witnesses to the crime. If Wilkinson’s cipher letter was to be taken seriously, then the prosecution ought to have produced evidence that a grand army assembled in or around the month of July, when Burr was alleged to have written the letter in question. The letter could be read as proof of a treasonable design, but that design had to have “ripened into the crime itself by actually levying war.” In the law, intentions did not equate to actions. So, if Swartwout’s declaration (in Wilkinson’s affidavit) was true, and Burr was scouring the country from New York to the western states, raising an army of 7,000, then, Marshall inquired, “What could veil his troops from human sight?” Following Wickham’s logic, Marshall agreed that “an invisible army is not an instrument of war.” More than five weeks had passed since his ruling in the Bollman-Swartwout case, in which he had made the same argument. If treason existed, he asked provocatively, “Why is it not proven?”52
The chief justice’s decision was damning for the prosecution. He not only rejected the evidence as probable cause of treason but implied that if Burr had really organized an insurrection, there should be ample testimony to that fact. He directly, pointedly, questioned whether this invisible rebellion had ever occurred. In effect, he was calling Wilkinson’s bluff. Where was the grand army descending the Mississippi that threatened New Orleans? It had never materialized. And if it had, why was the government unable to find single witness to its existence?53
Thus, Marshall concluded that Burr could not be committed for treason, though he could be held for carrying out a military expedition. Finally, Marshall gave the prosecution some ground to recoup their losses: If the prosecution collected the right kind of evidence, it could seek an indictment against Burr for treason. With that understanding, Burr was released on bail of $10,000, and his next appearance before the court was set for May 22.54
“THE ACQUITTAL OF COLONEL BURR WILL BE A SATIRE ON THE GOVERNMENT”
Jefferson fumed when he learned of Chief Justice Marshall’s ruling. He was convinced that the Federalists and a “little band of Quids” were orchestrating their own conspiracy. His enemies were banding against him, using the judiciary and attacking Wilkinson for his abuses of civil liberties, in order to save Burr’s neck. In two letters written in April, one to James Bowdoin, minister to Spain, and another to the Republican stalwart William B. Giles, Jefferson repeated his six-year-old complaint that Federalists on the High Court were a corrupting influence in government.55
Jefferson thought he saw a pattern. The administration had recently lost another high-profile filibustering trial, the July 1806 case of Samuel G. Ogden and William S. Smith, and this colored his view of the Burr proceedings. Ogden and Smith (the latter being John Adams’s son-in-law) were associates of the Venezuelan adventurer Francisco de Miranda, who outfitted a filibuster with the help of American recruits and dollars. Ogden and Smith were tried in federal court in New York and acquitted of the charge of equipping Miranda’s expeditionary force. The jury felt that the two men had done nothing illegal. Miranda was a charismatic figure, who had won the admiration of Washington, Adams, and Hamilton—another reason for the Virginian to distrust him. But Miranda was never an associate of Burr’s; in fact, the two men distrusted each other. As Jefferson reviewed the case, he came to believe that Federalists had shielded Ogden and Smith from conviction and now, with more legal chicanery, the Federalist chief justice was thwarting Burr’s prosecution. In April, his suspicions were confirmed when he discovered that Marshall had attended a lavish dinner at John Wickham’s, and Burr was one of the guests.56
Jefferson had long distrusted Marshall, a fellow Virginian. The two men had a common heritage as members of the Randolph dynasty—one of the first families in the Commonwealth of Virginia. They carried themselves with the casual air and dress that was the fashion of the Virginia gentry. But that was where the similarity ended. They were fierce partisan opponents, and intensely disliked one another. Marshall was younger—in fact, the same age as Burr. He was jovial and outgoing, whereas Jefferson was reticent and retiring. The chief justice had just published the fifth and final volume of his biography of George Washington, which celebrated Federalism while disparaging Jefferson and the Republican Party. Both Marshall and Jefferson saw the other as a spoiler, capable of subverting the foundational principles of republican governance.57
As the presiding judge at Burr’s hearing, Marshall did not have to do much to get under Jefferson’s skin. As for Jefferson, Marshall’s refusal to commit the former vice president for treason was pure effrontery. The wily jurist had dared to shield a traitor—using his bag of legal tricks, as Jefferson put it, “to throw dust in the eyes of his audience.” Marshall had ridiculed the prosecution for failing to prove an overt act, which Jefferson felt Burr’s conduct had decidedly shown.58
Jefferson believed that the chief justice had overstepped himself, and he predicted a public backlash. He thought the legislature would be stirred into action, and would pass an amendment to weaken the Supreme Court, effectively stripping the justices of their lifetime appointments—or at least, making it easier to remove them. Jefferson fantasized that if Marshall persisted in blocking Burr’s conviction, “the day is never far distant,” as he wrote to Giles, “when the people will remove him.” Through obstructionist actions, Marshall would inadvertently bring down the Supreme Court. Jefferson’s undisguised animosity was directed at two targets: the “crooked gun” Aaron Burr and the legal con artist John Marshall.59
Jefferson may have lost his objectivity with regard to Burr’s case, but he certainly had not lost his desire to win. In the weeks leading to the grand jury’s May 22 meeting, he redoubled his energies. The federal government sent out agents to find witnesses, collect depositions, and round up anyone who might be able to testify against Burr, whether or not that person was a credible witness. The administration spent nearly $100,000 in the attempt to convict Burr, a sizable sum for a president who had long opposed a strong central government Jefferson relied on executive privilege when he sent Hay a batch of blank pardons, and urged the prosecutor to give complete immunity to any of Burr’s so-called “accomplices” who could be persuaded to testify against him.60
Burr saw the forces arrayed against him. He wrote to his daughter in mid-May that “the most indefatigable industry is used by the agents of the government, and they have money at command without stint.” He assured Theodosia, “if I were possessed of the same means, I could not only foil
the prosecutors, but render them ridiculous and infamous.” In this game of cat and mouse, Burr understood that public opinion was the state’s most valuable weapon, writing in the same letter: “The democratic papers teem with abuse against me and my counsel, and even against the chief justice.” He refused to shield his daughter from the truth, telling her bluntly that the odds were against him: “Nothing is left undone or unsaid, which can prejudice the public mind, and produce a conviction without evidence.” He thought the chances were good that he would be convicted on the basis of prejudice—on the basis of lies that Jefferson had convinced himself he believed.61
When the grand jury convened on May 22, Burr had added two new lawyers to his team: Benjamin Botts, a member of the Virginia bar; and John Baker, who said little but was well versed in local politics and had the ability to size up potential jurymen. They would be joined later by another Virginian, Charles Lee, who had been attorney general under Washington after Edmund Randolph. Finally, Burr took on Luther Martin of Maryland, without a doubt the most interesting member of his defense team. Know as “Old Brandy Bottle” for his alcoholic excesses, Martin was a strange mixture of crudeness and cunning. His manners were brusque, which may be why Jefferson derisively called him a “federal bull-dog”; or maybe it was because he was a lawyer who could sink his teeth into his prey and never let go. He outmaneuvered his opponents by having the last word, and that last word was often biting and sarcastic. Martin was man of great passion and boundless energy; his love of drink, rather than slowing him down, seemed to fuel his always entertaining performances in the courtroom.62
The prosecution had also changed its lineup. Hay was now joined by Alexander McRae, lieutenant governor of Virginia, described as dour and abrasive, but whose loyalty to Jefferson was unwavering. In contrast to the workmanlike Hay or the stern McRae, William Wirt, the third man at the prosecution table, was a scrappy young attorney who came to Jefferson’s attention after marrying the daughter of one of his neighbors. At thirty-four, Wirt was over six feet tall and considered handsome. The famous portrait artist, Saint-Mémin, who was present in Richmond during the trial, captured Wirt as almost a Byronesque figure, with a massive head of curly locks and Roman features. Wirt had literary pretensions besides. His Letters of the British Spy (1803) told the story of a fictitious Englishman who was in Virginia seeking to understand the character of the people. In this often-reprinted work, Wirt showed his passion for the study of eloquence, especially courtroom eloquence; he admired most the “resistless enthusiasm of unaffected passion, which takes the heart by storm.” He understood courtroom oratory as a self-conscious strategy designed to stir up sensations. He also recognized that trials were a form of medieval combat, opponents crossing verbal lances, or engaging in what he called “forensic digladiation” to prove their manly prowess. The theatrical styles of Luther Martin and William Wirt mattered, because this was a case in which winning over the public was just as important as persuading the judge.63
Burr wasted little time unsettling the prosecution. He began by protesting jury selection, his suspicions aroused when he learned that his good friend John Taylor of Caroline had been dropped from the jury pool. Next he insisted on the right to challenge jurors, and to eliminate any who showed extreme bias against him. Two jurors at the top of his list were William B. Giles, who had spearheaded the effort in the Senate to suspend habeas corpus, and Wilson Cary Nicholas, whom Burr blasted in a letter to Theodosia as “my vindictive and avowed personal enemy—the most so that could be found in this state.” Nicholas, along with DeWitt Clinton, had led the charge to exile Burr from the Republican leadership. So Giles and Nicholas agreed to step down, while grumbling about their own mistreatment.64
Still, the jury panel was stacked against him, composed of twenty Jeffersonians and four Federalists. Sixteen of these were chosen to serve on the grand jury. His few challenges were symbolic at best.65
As in the Chase trial, Burr had every intention of transforming the courtroom into his classroom. But in this instance, he wished to teach a lesson on political persecution, and to demonstrate that justice only existed when the lone individual could successfully confront the tyrannical hand of state power. He had already revealed his approach in a letter to Theodosia, asking her to compose an essay containing all the episodes in ancient history when “a man of virtue and independence, and supposed to possess great talents,” had become “the object of vindictive and unrelenting persecution.” And after the grand jury had been selected, when the prosecuting attorney Hay insisted that Burr should be kept on the “same footing with every other man charged with a crime,” Burr responded indignantly: “Would to God I did stand on the same ground with every other man.” Though Marshall tried to temper the outburst, Burr had already succeeded in making his point.66
Over the next couple of days, the prosecution went on the offensive. Hay made a motion to commit Burr for treason, and the defense cried foul. Wickham was so furious that he threw Wilkinson’s affidavit on the table, muttering that it was a pack of lies. The prosecution’s key witness, the boisterous general, was still missing, and yet Hay was still dredging up the old charge of treason based on nothing but what Wickham called “floating rumours.” And what did he mean? There was talk around Richmond that Burr would panic and flee the scene when Wilkinson, the so-called “savior of the nation,” was about to make his grand entrance. By committing Burr for treason, Hay figured he could prevent Burr’s flight while portraying him as a coward, afraid of his chief accuser.67
No one, in fact, knew where Wilkinson was. Hay made excuses for him, reminding people of the general’s age and unwieldy size. Burr’s attorney, Edmund Randolph, could not let the comment pass without his own retort: even “the gigantic ‘bulk’ of the general himself” was a poor excuse for his tardiness. And so, meanwhile, the defense also took aim at the Jefferson administration, criticizing the president for labeling Burr a guilty man in his message to Congress, thus contributing to the defendant’s mistreatment.68
The prosecution flew into a rage. This was not a contest between Burr and Jefferson, William Wirt countered. Impatient with defense claims of persecution, he spoke in a sarcastic tone: “Oh no, sir, colonel Burr indeed has been oppressed, has been persecuted”—so why don’t we just extend him every privilege and trust that he will not escape? Had the defense forgotten that its client had been a fugitive? Precautions were necessary: “This would really be carrying politeness beyond its ordinary pitch.”69
Burr was not deterred. He launched into a speech justifying his criticism of the president. “Surely it is an established principle, sir,” he said, “that no government is so high as to be beyond the reach of criticism.” In an attempt to destroy a man, vigilance was necessary. Burr went on to cite violations of the law, reminding the court that his “friends had been every where seized by the military authority; a practice truly consonant with European despotisms.” Burr’s allies in New Orleans had been dragged before tribunals, and forced to give testimony; Burr’s own papers and property had been unlawfully seized, and his letters stolen from the post office. Speaking in the third person, Burr went on: An “order had been issued to kill him, as he was descending the Mississippi.” All the while the government looked the other way. And now Burr remarked, with undisguised irony, “nothing seemed too extravagant to be forgiven by the amiable morality of this government.” The sacred right of habeas corpus had been threatened, and this not only affected him but “concerned the whole nation.”70
The state case was flawed, Burr further contended, because it rested on a perverted definition of war. The defendant, as his own counsel, spoke directly. The trial transcript explains:
Our president, said Mr. Burr, is a lawyer, and great one too. He certainly ought to know what it is, that constitutes a war. Six months ago, he proclaimed that there was a civil war. And yet, for six months they have been hunting for it, and still cannot find one spot where it existed. There was, to
be sure, a most terrible war in the newspapers; but no where else. . . . At length, however, the Spaniards invaded our territory, and yet, there was no war. But, sir, if there was a war, certainly no man can pretend to say, that the government is able to find it out.71
Jefferson had concealed the war with Spain, which Burr claimed was a real war. And in its place, the government had manipulated the truth once again and manufactured an invisible civil war.
The battle over Burr’s commitment for treason took an entire week. On May 28, the prosecution dropped the motion for commitment, and Burr agreed to pay additional bail. “Still waiting for Wilkinson,” Burr wrote to Theodosia a week later, “and no certain accounts of his approach.” John Randolph, the eccentric who had been selected as foreman of the grand jury, complained that it had nothing to do. Court was adjourned until June 9, giving both sides an opportunity to stir up even more rancorous debate.72
On that date, Burr made a proposal that caught the prosecution completely off guard. He felt it was necessary to his defense to have as evidence General Wilkinson’s October 21 letter to Jefferson, and Jefferson’s reply. So he requested both, as well as copies of orders issued by the army and navy that pertained to his case. He was especially interested in an order issued by the secretary of the navy instructing a lieutenant to “destroy his person and property.” This letter had already been published in the newspapers. If this order had in fact been issued, Burr felt it would justify his flight from Mississippi. Secretary of Navy Robert Smith had refused to forward the relevant papers up to now; so Burr was compelled to take further action. He asked the court to issue a subpoena duces tecum (to the president). This meant that Jefferson had to deliver the papers, and if necessary, deliver them in person. But as Burr made clear, he only wanted the papers, and had no intention of forcing Jefferson (or any cabinet member) to appear in court.73
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