A Nation Rising (7 page)

Jackson believed that Burr was going to collect an expeditionary force in Kentucky and Tennessee and float down the Mississippi to New Orleans intending to start a revolution in Mexico, perhaps even with American naval support. Jackson's ardor for the plan began to cool, however, when he heard the rumors of Burr's real design: to create a new country with himself at the head. As the historian Andrew Burstein puts it: “Jackson was in charge of building boats for which Burr had paid in advance, at his Clover Bottom boatyard. Believing that Burr was not doing anything that Jefferson was unaware of—or else to cover himself—Jackson wrote the President, ‘In the event of insult or aggression made on our Government from any quarter…, I take the liberty of rendering [Tennessee's volunteers'] service, that is, under my command.'”
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Jefferson issued an order for Burr's arrest, declaring him a traitor even before an indictment was issued. Burr turned himself in to the federal authorities. Defended in a Kentucky courtroom by a rising young attorney named Henry Clay, Burr was released after two grand juries separately found his actions legal. But Jefferson's warrant followed Burr to Mississippi, where still another grand jury
refused to indict him in February 1807. Certain that the president and Wilkinson would not permit him to go free, Burr fled toward Spanish Florida. It was there that Nicholas Perkins recognized him late on the night of February 19, 1807.

Burr was brought to trial before the United States circuit court at Richmond, Virginia. Thomas Jefferson watched as his distant cousin and political antagonist, John Marshall, chief justice of the United States, presided over the trial. A staunch Federalist, Marshall had been appointed by John Adams just before Adams left office and in February 1803 had written the landmark decision in
Marbury v. Madison
, establishing the principle of judicial review, under which the Supreme Court can declare an act of Congress unconstitutional.

Playing a minor supporting role in Richmond, Andrew Jackson, who was never called as a witness, took every opportunity to publicly rail against Jefferson, call Wilkinson a liar, and contend that Burr was an innocent victim. The proceedings, which got under way in the spring of 1807, would involve weeks of pretrial motions and testimony before a grand jury stacked with Jefferson's allies, preceding the actual trial. It lasted until October 1807. But it still captivated political America. Convinced of Burr's guilt, eager to destroy the New Yorker who he thought had betrayed him in 1800, and also looking to damage Marshall, Thomas Jefferson gave the prosecutors blanket guarantees of pardons for anyone who testified against Burr.

Burr would lead his own defense, but his team of lawyers included Luther Martin, a Prince ton classmate whom Burr had watched skillfully defend Samuel Chase in his impeachment trial. Martin had
also been a delegate to the Constitutional Convention, where he had insisted on a resolution that prohibited further importation of slaves, or at least a tax on them if the trade was permitted. Martin said, “It was inconsistent with the principles of the Revolution and dishonorable to the American character to have such a feature in the Constitution.”
²⁹
Ultimately, Luther Martin was among those delegates at Philadelphia who refused to sign the Constitution.

Irascible and long-winded, Martin was nevertheless called the best trial lawyer in America. But he had a penchant for bourbon and was often obviously drunk in court, as he had been at the Constitutional Convention. In their history of that convention,
Decision in Philadelphia
, James and Christopher Collier offer a clear portrait of Martin's habits. “By the time of the Convention, he drank at times to the point of making a public spectacle of himself. It was, of course, a hard-drinking age, and the world was full of alcoholics. But gentlemen were expected to drink and stay reasonably sober, and Martin clearly went beyond the bounds of propriety.”
³⁰

Although it took place in the early nineteenth century, the trial was a close equivalent of a modern “media circus.” Richmond was filled with eager spectators, and there were reports that the town's population had doubled, to 10,000. And most of the journals of the day, almost all of which were aligned with one party or the other, were well represented. Among the “reporters” was a twenty-four-year-old New Yorker who wrote for a New York City newspaper edited by his brother and partly owned by Aaron Burr. An aspiring attorney, this writer had contributed to the
Morning Chronicle
under the pseudonym “Jonathan Oldstyle.” But his real name, not
yet well known in America, was Washington Irving.* He provided readers with a description of one of the most dramatic and eagerly anticipated moments in the courtroom: the arrival of General James Wilkinson, the chief government witness against Burr:

The grand jury heard Wilkinson's testimony and saw the crucial piece of evidence: the letter Wilkinson said he had received from Burr. It was the only piece of physical evidence presented to
the grand jury. This “Cipher Letter,” allegedly written by Burr, proposed taking over territory that had been acquired under the Louisiana Purchase. But during the examination it was discovered that this key to the prosecution's case was in Wilkinson's own handwriting—a “copy,” the pompous Wilkinson testified, because he had “lost” the original. The grand jury threw the letter out, and the news discredited Wilkinson and made him a laughingstock for the rest of the proceedings. Five days of cross-examination further demolished his reliability and his reputation. Thomas Jefferson had bet the house on Wilkinson and would lose badly. Other important prosecution witnesses failed to place Burr at the scene of the alleged conspiracy, an island in the Ohio River named for its owner Harman Blennerhassett, one of Burr's indicted coconspirators. And the credibility of the prosecution was further damaged because one of the men who was supposedly a witness to the conspiracy was never called to testify, even though he was sitting in the courtroom.

Overseeing these proceedings was a giant of American legal history. Born in rural Virginia in 1755, Justice John Marshall had, like Burr, served in the Revolution, including a winter at Valley Forge. Devoted to George Washington—he wrote a five-volume biography of the first president—Marshall was also a vigorous supporter of adopting the Constitution, and a staunch Federalist. He had been a “midnight appointee” to chief justice in 1801 by a lame duck President Adams, and he and President Jefferson became bitter rivals as Jefferson attempted to bend the judiciary to his will and Marshall resisted. In 1803, Marshall had irked Jefferson with the decision in
Marbury v. Madison
, establishing the principal of “judicial review”—the idea that courts could overturn and nullify the acts of other
branches of government. In Burr's trial, Marshall would set more precedent. First, he allowed Burr to subpoena papers from Thomas Jefferson, establishing the fundamental concept that the presidential claim of executive privilege had limits and that the president was still answerable to the law.

On August 29, Chief Justice Marshall began work on his decision, which would really amount to a charge to the jury. Running to some 25,000 words, it was the longest decision he ever wrote in a storied and influential career. It took three hours to read in court, and then, after ruling on several points of law, Marshall turned the case over to the jury. One of the significant elements of his decision was a very narrow definition of treason, based on his reading of Article III of the Constitution. On Monday, September 1, the jury returned a verdict: “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.”

With this verdict, the charges of treason against Burr's companions were also dropped. A second trial on a misdemeanor charge against Burr also resulted in a verdict of not guilty. Aaron Burr was a free man.

Summarizing the case and its importance, the legal historian Joseph Wheelan concluded, “Had a more pliable judge than Chief Justice John Marshall presided over Burr's treason trial, the Judiciary might have evolved into an instrument of repression, as it is in other nations. Rather than being interpreted as the Constitution's framers wished, the charge of treason might have become a means of silencing political opponents. The president and his official papers
might today be immune from subpoena, and lie concealed behind a curtain of unassailable secrecy.”
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A
FTERMATH

I
N THE WAKE
of the sensational trial, Burr was left deep in debt. He was also under a constant threat of lynching by mobs of people who believed the worst of the press accounts. One of his codefendants, Harman Blennerhassett, was similarly in debt; his fortune, his home, and his property on the private island in the Ohio River where the alleged conspiracy had unfolded were all gone. Preparing to run for governor of South Carolina, Burr's son-in-law, Joseph Alston, provided Blennerhassett with funds that in retrospect seemed suspiciously like hush money. A broken man, Blennerhassett eventually moved to England and died there, bankrupt.

In June 1808, Burr also left for England, still hoping to get financial backing for another adventure, or “filibuster,” against Spanish territories in America. He spent the next four years traveling around Europe, speaking, writing, and living on the edge of bankruptcy. But he was a shell of his former self. Once among the most powerful men in American politics, he no longer had any influence, and none of the European powers, including France under Napoléon, showed any interest in backing another of his schemes.

Finally he sailed back to the United States, disguised in a wig and whiskers and using an assumed name, Adolphus Arnot. After receiving assurances that he would not be arrested for debt, Burr
returned to his former base of power, New York, at just about the time that the War of 1812 was declared. Despite his very checkered past, Burr opened a law office, and though very much a social outcast at first, he attracted clients who still valued his skills.

In June of that year, Burr learned that Theodosia's ten-year-old son, Aaron Burr Alston, had died in South Carolina. Crushed by the loss and also in poor health, Theodosia, decided to return to New York to visit with her father. Although travel was dangerous because England and American were at war, she boarded a fast ship, the
Patriot
, from Charleston, bound for New York. The trip should have taken five or six days. Burr went to the docks each day to await his beloved daughter's arrival. But Theodosia was never seen again. A bad storm had hit the coast and the ship was never heard from. There were rumors that pirates had captured the vessel. Burr continued to return to the docks for days until it was clear that there was no hope. He was heartbroken.

“When I realized the truth of her death, the world became a blank to me,” Burr later said. “And life had then lost all value.”

Burr lived on, often in debt. But he still proved a loyal friend when Luther Martin, his attorney at the trial, fell on hard times. Alcoholism had broken Martin, and Burr took his old friend and ally into his New York home, where Martin died in 1826, four days after both Thomas Jefferson and John Adams died on the fiftieth anniversary of the Declaration of Independence.

In 1830, Burr suffered the first of several strokes. Yet in 1833, at age seventy-seven, he married a former courtesan, Eliza Bowen Jumel, now fifty-eight and the widow of the wealthy wine merchant
Stephen Jumel. When she realized that her fortune was dwindling as a result of her new husband's land speculation, the couple separated, after only four months. Within a year, she had sued for a divorce; it was finalized on September 14, 1836, the day Burr died in the village of Port Richmond on Staten Island. He is buried in Prince ton Cemetery near both his father and his grandfather.

 

I
N HIS LAST
years, Burr told anyone who would listen that he had never harbored any treasonous ambitions. Before his death, having learned that America had recognized the independence of Texas from Mexico, he supposedly said, “There! You see? I was right. I was only thirty years too soon! What was treason in me thirty years ago is patriotism now!”
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I
N HIS LANDMARK
History of the United States of America during the First Administration of Thomas Jefferson
, Henry Adams, son of one American president and grandson of another, aptly summed up the Burr case: “Never in the history of the United States did so powerful a combination of rival politicians unite to break down a single man as that which arrayed itself against Burr.”

 

M
ORE THAN
200 years after Aaron Burr's trial, the story of his prosecution—or persecution?—remains timely and instructive. Recent history attests to the awesome power of an unchecked presidency
in destroying a political enemy. The downfall of Richard Nixon in the aftermath of Watergate was largely a result of his concerted effort to destroy “enemies,” an effort that involved not only the White House and the executive branch but the FBI and CIA as well. Nixon's “high crimes and misdemeanors” related to Watergate bordered on paranoia and certainly assaulted the Constitution. More recently, during the Iraq War, in the case of Ambassador Joseph Wilson and his wife, the CIA operative Valerie Plame, there was an effort to destroy a man's reputation and, in Plame's case, ruin a woman's career, if not threaten her life by exposing her clandestine work. After Ambassador Wilson had contradicted the Bush White House regarding Saddam Hussein's supposed attempt to acquire materials for an atomic bomb, Wilson was attacked through leaks to selected journalists and Plame's CIA cover was blown.