Fallen Founder

by Nancy Isenberg

  Burr and his defense team aggressively challenged Allbright’s testimony, asking the witness to identify Tupper in the courtroom. Tupper’s deposition had directly refuted everything Allbright had said, and the prosecution, of course, did not call Tupper to the stand for this reason. Blennerhassett’s groom, William Love, disputed Allbright’s testimony, swearing that Tupper’s visit was perfectly friendly and without incident. Altogether, this round of testimony proved contradictory and confusing: some witnesses reported seeing rifles, the making of bullets, sentinels posted, and a military watchword in use, while others saw no signs of military array or activity whatsoever. And as the defense reminded the jury, not a single witness saw Burr on the island.121

  One Dudley Woodbridge, a prosecution witness, inadvertently provided comic relief. He was Blennerhassett’s business partner, whom Burr had hired to requisition provisions and boats. Cross-examining Woodbridge, Burr asked whether it was not “ridiculous” for Harman to be engaged in a military enterprise, when the nearsighted man could not distinguish a human from a horse at ten paces. And when Wirt had his turn, and asked Woodbridge whether Blennerhassett was a man of “vigorous talents,” the witness could not help but say that “he had every sense but common sense.” This was not the ideal candidate to share command of an incipient revolution.122

  Burr had had enough, and he rose to object to any further “collateral” testimony. The defense then moved to halt testimony. Wickham addressed the court, offering what many observers at the time considered to be “the greatest forensic effort of the American bar.” Over the course of this day and the next, he dissected the flawed logic of the prosecution. Its first mistake was trying to convict Burr of treason when he was not present on Blennerhassett Island. Hay and his team were attempting to prove that Burr was a “traitor by relation,” his guilt derived from the acts of Blennerhassett and others. Trying to convict Burr by such “artificial rules of construction” was, for Wickham, a misrepresentation of the laws concerning treason.123

  Wickham’s major thrust was to disprove the premise that all were principals in treason. He meticulously reviewed pertinent British cases, pointing out that the few precedents that existed were pre-Enlightenment episodes. Jefferson’s prosecution team was inadvertently replicating a few infamous cases of despotism under a monarchy. For instance, as David Hume recorded in his History of England, Lady Lisle had been convicted of treason (as an accessory) for having harbored a man who was subsequently charged with treason. As she was the widow of another traitor, the judge identified her as a “traitor by relation.” This was a case of judicial retribution and nothing more. In Burr’s trial, a similar mismanagement was underway. The precedent that the state was endorsing was in fact a notorious example of political persecution.124

  Here Wickham upped the ante. He raised a series of old English laws that equated treason with seduction. It was traditionally understood that sleeping with a female relative of the king constituted treason. Suppose, Wickham said, a female had acted as accomplice to a male traitor by participating in the treasonous act of defiling a royal personage. Not only was the female accomplice not present, but she also lacked the physical attributes to engage in the commission of the crime. To assume that all are equal participants in the crime was thus an outrageous proposition, and so “constructive treason” in effect approved what was illogical and unimaginable: a woman copulating with another woman. Wickham compared the “physical impossibility” of a woman becoming a man to the prosecution’s contention that Burr was in two places at once. He was either on the island, or not—and everyone knew he was not there. To be absent from the island was to be innocent of the charge in the indictment.125

  Furthermore, Burr could not be convicted as an accessory until Blennerhassett—the principal—was first convicted. The prosecution would have to prove an overt act of treason by Harman Blennerhassett. As Wickham made clear, insofar as twelve witnesses had failed to put Burr on the island, or to prove his participation in an overt act of war, then Justice Marshall was under an obligation to step in, clarify the constitutional definition of treason, and preserve the integrity of the court by instructing the jury that the indictment against Burr was fatally flawed.126

  The prosecution now had only one recourse left. It had to diminish the importance of Blennerhassett Island as a staging area for war, while retaining it as the site of Burr’s seduction of the island’s owner. Though both McRae and Hay tried to answer Wickham, only Wirt was able to steal the stage. A portion of his speech, in fact, was remembered long after the trial as “Who is Blennerhassett?” It was reprinted in newspapers in 1807, and recited by schoolchildren into the twentieth century. The speech was remembered less for Wirt’s legal erudition than for his literary eloquence. He began by arguing that Blennerhassett Island was a mere “atom” in the sprawling conspiratorial scheme led by Burr, which extended from New York to New Orleans. It was ridiculous, he said, to think that Blennerhassett was the principal, and Burr merely an accessory. Burr was demonstrably behind the plot, “a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plan into operation.” It was inconceivable that Burr would consent to being the “cat’s paw” of any man, let alone Blennerhassett.127

  “Who is Blennerhassett?” Wirt asked. He was a man of letters, seeking solitude on his beautiful island, which he had transformed into a romantic oasis. He lived surrounded by books, music, and a lovely wife “to crown the enchantment of the scene.” Into this place the “destroyer” comes, changing “paradise into hell.” Burr had invaded. Burr had transgressed. Burr was the principal, the stranger who found a way into the Irish dilettante’s heart, “by the dignity and elegance of his demeanor, the light and beauty of his conversation, and the seductive and fascinating power of his address.” The island was Eden, the symbol of Adamic and masculine innocence, and Burr, of course, was the seducer, the serpent.128

  Wirt had brought together all the old images of Burr. Here was Cataline, luring young and potent men, and causing them to love the person of Aaron Burr. Wirt calls them men of “youthful ardor.” The New York Burrites had been “young boys,” and those young men who were drawn into Burr’s western conspiracy were again being painted as sexual pawns. Since the Hamilton duel, Burr had been repeatedly accused of tearing apart the family hearth. All Wirt was doing different was constructing Burr as a dandified Satan. He had bewitched the Irishman. And thus, his crime was not so much an act of war as an act of seduction. His revolution was as erotically charged as it was corrupt.129

  Benjamin Botts, the youngest member of the defense team, spoke next. Instead of relying on “sleeping Venus” and “voluptuous nakedness,” as he sarcastically described Wirt’s alluring prose, he had at his disposal only the dry doctrines of the law. The courtroom burst into laughter. Hay tried to offer rebuttal, but at this point the trial was all but over.130

  Luther Martin spoke for over fourteen hours to close for the defense. He directed his attack against the prosecution’s weak attempt to divert attention from the constitutional definition of treason. He would not permit Hay and his colleagues to pretend that the error in the indictment was not a glaring one. Martin deftly referred to the prosecution’s strategy as the “Will o’ wisp treason.” And he added, “though it is said to be here and there and everywhere, yet it is nowhere.” The term “will-o’-the-wisp” derived from European folklore; also called “fool’s fire,” it referred to ghostly lights that hovered over bogs, only to disappear when approached, and was used metaphorically to convey a thing that was confounding or even maliciously invented. Martin accused the prosecution of chasing an illusion, imagining a sinister plot that never existed.131

  On August 31, after eight days of argument, the chief justice rendered his decision. He dismissed the indictment as flawed, asserting that the prosecution had failed to prove an overt act of war. There would be no more witnesses, only the jury’s verdict, decl
ared the next day. “We of the jury say that Aaron Burr is not proved to be guilty under the indictment by any evidence submitted to us. We, therefore, find him not guilty.” Burr wanted an unambiguous statement, and objected to the unusual language. There remained one obstinate juror who refused to accommodate him. Marshall indicated that the verdict would be reported as “not guilty.”132

  Wirt blamed the chief justice for the outcome of the trial, writing to his friend, Jefferson’s nephew Dabney Carr: “Marshall has stepped between Burr and death.” But even a strident Jeffersonian like Thomas Ritchie, editor of the Richmond Enquirer, admitted that Burr was “virtually acquitted on the indictment.” Eight days after having been found not guilty, Burr faced a new trial. This time, however, he was being charged with a misdemeanor for having attempted a filibuster. Fifty witnesses were examined, and less than a week later, the jury delivered a verdict of not guilty. At this point, the same prosecution team that had managed the Richmond trial now sought to commit Burr on charges of treason and misdemeanor in Ohio or Kentucky. In the course of a new round of testimony, Wilkinson was recalled, and under cross-examination—and let us use Burr’s own words here—“acknowledged, very modestly, that he made certain alterations” in the cipher letter.133

  During this period, Burr remained out on bail in Richmond. On October 20, Marshall ruled there was not enough evidence to try Burr for treason again, but that Burr and Blennerhassett could be committed for trial in Ohio on the misdemeanor charge. But by this time, even George Hay was tired of the proceedings and admitted that he was fed up with Wilkinson. He wrote to Jefferson that his confidence in the general was “shaken, if not destroyed.” He expressed regret that the administration had put so much faith in a faithless man. “I am sorry,” Hay told the president, “because you have expressed opinions in his favor; but you did not know then what you soon will know.” Jefferson would be obliged, on some level, to accept his error of judgment. At last, after almost seven months of heated deliberation and courtroom drama, the trials of Aaron Burr ended.134

  “I NEVER BELIEVED HIM TO BE A FOOL”

  In the end, the entire rationale for charging Burr with treason in the so-called “Burr Conspiracy” rested on Wilkinson’s word and the infamous cipher letter. Yet this crucial piece of evidence was altered. Burr insisted he never wrote the letter. And he didn’t, in fact. Jonathan Dayton did. Recall that the cipher letter implicated Burr in a conspiracy that Wilkinson said involved an attack on New Orleans. The closest Wilkinson ever came to admitting that Burr did not write the cipher letter was in a letter to Charles Biddle, which he sent during the grand jury proceedings. In Biddle’s words, the general confided in him that “the letter from Dayton was more explicit, more corruptious & treasonable than Burr’s.” (Dayton had written a cover letter to accompany the cipher letter, both of which were delivered at the same time to Wilkinson by courier Samuel Swartwout.) Wilkinson was accusing Dayton of putting treasonous ideas on paper, and Wilkinson could not have mistaken Dayton’s handwriting or writing style for that of Burr. But it was not in the general’s interest to point the finger at Dayton. He needed evidence against Burr, so he purposely manufactured it.135

  Throughout the trial and in its aftermath, Jefferson stood by Wilkinson. It is, perhaps, more accurate to say that Jefferson stood by his decision to prosecute Burr, and to do so meant that he had to defend the general. In 1812, as a private citizen, he wrote a revealing letter to James Monroe, in which he rationalized that he had never really trusted Wilkinson except in this one instance, when Wilkinson accused Burr of treason!136

  Jefferson’s real feelings about Burr are hard to pin down. In 1807, he called him many things. He compared him to Don Quixote, a wild-eyed dreamer; elsewhere, he dismissed him as a “crooked gun.” To Colonel George Morgan, he projected that if Burr’s treason trial went as he thought it would, “there can be no doubt where his history will end.” There is only one way to read this statement: Burr would soon be hanging from the gallows. To another correspondent, he portrayed Burr’s life as a morality tale that fixed the “value of honesty”; here he wrote melodramatically: “With that, what might he not have been!” To New Yorker Robert Livingston, he had no more to say about his former vice president than this petty aside: “Burr has indeed made a most inglorious exhibition of his much over-rated talents.”137

  A crucial question remains. Why did Jefferson never confront Burr in person? During the winter of 1805–06, Jefferson received warnings from Kentucky district attorney Joseph Hamilton Daviess, caught wind of other anonymous accusations, and is supposed to have had a private conference with General William Eaton, in which the “Hero of Derne” exposed Burr’s treachery. Yet during this same period, Jefferson dined with Burr at the President’s House on at least two occasions. They met for a private conference in March 1806. Why did Jefferson not intimate to Burr that some were accusing him of treason? Why did he not offer Burr an opportunity to explain himself and elaborate on his future plans? Of course, we must also ask: Why did Burr not let Jefferson know that he was considering a filibuster? The point is, a few frank words over a glass of wine might well have changed the course of history, and averted the outstanding farce that was Burr’s treason trial.138

  Burr’s fatal flaw was twofold. He trusted Wilkinson, and did not adequately understand Jefferson. Knowing that rumors tended to circulate, he should have figured that the president would eventually form suspicions concerning his activities in the West. What made him think that an unauthorized filibuster would be welcomed by the administration? At the very least, his boldness was a usurpation of Jefferson’s executive authority in the conduct of state diplomacy. No matter what their intimate dinners consisted of, Jefferson had unmistakably shown that he wanted to neutralize Burr’s power within the Republican Party, if not exile him from it. How could Burr so thoroughly misinterpret Jefferson’s thin-skinned political character, in ignoring the fact that the president could not tolerate Burr’s transformation into a national hero—which is what would have occurred if he had successfully led a filibuster into Mexico.

  We can glean from the always quotable ex-President John Adams how Burr’s activities, as reported in the newspapers, were received by much of the general public. Adams observed that Burr had to be “an idiot or a lunatic.” He knew something more of Burr than the average American, to be sure, and in writing to a fellow signer of the Declaration of Independence, Benjamin Rush, he unflinchingly stated: “I never believed him to be a fool.” In this, Adams was only partially right. Burr never planned the grand conspiracy that attached to him, and neither did he seriously contemplate the assassination of the president or his own installation as emperor of Mexico. But it seems undeniable that he was foolish in his dealings with Jefferson. He stubbornly refused to see that his filibuster could not succeed without Jefferson’s acquiescence. And Jefferson never gave him anything close to a nod signifying his support.139

  A whimsical-looking Aaron Burr in 1826 by Henry Inman

  Chapter Ten

  THAT STRANGER WAS AARON BURR

  It happened that some gentlemen who belonged to the bar, had commenced a controversy on some point in law, very near an old gentleman. He occasionally regarded them with a look, as if to penetrate the recesses of their soul; and then resumed his posture. At length, a young smart, with a significant glance accosted him: “Old gentleman, what is your opinion?” The man of silence and mystery spoke—and lo! What was our astonishment! His countenance . . . brightened with intelligence; the loftiest eloquence flowed from his tongue . . . the halo of genius shone around him. . . . All eyes were fixed on the extraordinary stranger—all desire to know his name. Inquiry was made—reader! That stranger was Aaron Burr.

  —New-York Mirror, and Ladies’ Literary Gazette, 1825

  While Burr was technically free after his trials in Richmond ended, he was soon hounded by his numerous creditors. Former friends and supporters pressed for repayment of loans, or bi
lls they had honored, wasting little time in bringing $36,000 in civil suits against him. But Burr seemed undeterred, determined as ever to reinstate his plans for a filibuster; he made arrangements to travel to England for just this purpose. This may seem strange given all he had been through, but Burr must have felt that he could justify himself if he could still succeed with his scheme.1

  After Justice Marshall’s final ruling on October 20, Burr left Richmond for good and headed to Philadelphia. He stopped in Baltimore along the way, only to find that news of his presence had sparked the fury of local Republicans. A handbill, filled with incendiary satire, announced that four “choice spirits” would be given a mock execution on November 3. First on the list was Chief Justice Marshall for his “capers in open court,” followed by Aaron Burr, “His Quid Majesty, charged with the trifling fault of wishing to divide the union.” Harman Blennerhassett, who was also in Baltimore at the time, was targeted for “conspiring to destroy the tone of the public fiddle.” And finally, “Lawyer Brandy-Bottle,” Luther Martin, for his scandalous prediction that Burr would divide the union in less than six months.2

  There was genuine danger. Baltimore’s mayor provided Burr and his traveling companion Samuel Swartwout with an armed escort to the public stagecoach. The two men were hurried out of town. Two troops of horse and police assembled to make sure the mob did not get out of hand. Blennerhassett, curious to see what would happen, stayed behind to watch the commotion from a window in Luther Martin’s home. Around 1,500 people gathered outside, shouting and cheering, as effigies of Marshall, Burr, Blennerhassett, and Martin were hung (and later burnt) to the delight of the crowd. Before Martin went up in flames, one of the bystanders suggested one last draught of brandy for the condemned man, to ease his fear of death. It was done, as the crowd cheered.3