The Great Divide

by Thomas Fleming

  Jefferson read his speech in a low, barely audible voice. But the National Intelligencer had copies of it in print in the day’s edition. It was chiefly a summary of what his administration had accomplished. The national debt had been reduced, the expenses of the tiny federal government had been trimmed, and America had remained at peace with all the world’s nations.

  The latter claim was not the case, if the Muslim pirates in Algiers and other ports along the North African coast were regarded as nations. The President’s undeclared war with them was now in its fourth year. A few minor victories had been won at sea, and several of the city-states had negotiated treaties of peace. But Pasha Yussef Karamali remained defiant behind his formidable forts at Tripoli. His posture was strengthened by an extremely embarrassing American blunder. The frigate USS Philadelphia had run aground in Tripoli’s harbor, and its three hundred-man crew had been forced to surrender.

  In spite of cries of pain from Secretary of the Treasury Gallatin about the cost, the President was forced to send reinforcements, swelling the expeditionary force to five frigates, three brigs, and three schooners as well as numerous smaller vessels. The navy remained stymied by Tripoli’s forts until, in 1805, an enterprising American civilian named William Eaton, a former consul at Tunis, launched an unorthodox land war with the help of a handful of U.S. Marines. Eaton recruited a ragtag force of five hundred Arabs, Greeks, and Albanians who marched overland from Egypt and intimidated Yussef into negotiating a treaty of semi-peace. The Pasha forced the United States to pay him $60,000—at least a million dollars in modern money—to free the Philadelphia’s crew.

  Numerous congressmen were outraged by this costly pseudo-victory and said harsh things about President Jefferson. Worse, a kind of guerilla war continued at sea, forcing the commander in chief to keep two or three warships on duty in the Mediterranean for the rest of his second term. Jefferson’s contention that a navy could entangle a nation in foreign wars came true in a very ironic way. The man who issued the warning became both entangler and entangled.10

  The military sideshow off North Africa was by no means the only sword rattling that President Jefferson pursued in his second term. In 1803, soon after the Louisiana Purchase, the President and his Secretary of State convinced Congress that the Spanish colony of West Florida was included in the acquired territory. Congress passed a bill, organizing the area around Mobile for the collection of customs. But Spain, angry over Napoleon’s sale of Louisiana without consulting them, insisted the land still belonged to them. The President’s envoy to Madrid, James Monroe, got nowhere in months of wearisome negotiations.

  A stalemate ensued until December 1805, when the President, in his annual message to Congress, made it clear he was ready to use force to seize the disputed area. This was a dangerous thing to say. In 1804, Spain had joined France in the war against England, which meant Emperor Napoleon Bonaparte was in the picture as well. For a while, to Secretary of State Madison’s distress, President Jefferson talked of making an alliance with England to support his obsession with West Florida.

  Suddenly, the President sent another message to Congress, reporting that war with Spain might not be necessary. Majority leader John Randolph, the President’s partner in the attempt to impeach Judge Chase, was summoned to the presidential mansion and told that Florida could be obtained by paying $2 million in bribes to certain French and Spanish officials.

  Randolph exploded. This was a violation of his Old Republican principles. The hot-tempered Virginian went back to Congress and denounced the President for deserting the purism of Old Republicanism. Implicit in Randolph’s wrath was the Federalist refusal to pay bribes to Foreign Minister Talleyrand’s friends, Messrs. X, Y, and Z. How could the President risk the reputation of the Democratic-Republican Party by violating a principle the monarchists and Anglomen had upheld?

  Buoyed by the party’s massive majorities in both houses, Jefferson ignored Randolph and persuaded Congress to vote the money. The fiery congressman called those who voted for the bribes “pages of the presidential water closet”—the 1805 term for toilet. He organized about twenty similar minded Old Republicans into a third party, the “Tertium Quids.” These “Third Somethings” would soon give the President more than a few restless nights.11

  All this war talk and money talk in regard to Spain came to nothing. Napoleon, growing more and more surly toward the Americans, abruptly decided West Florida should remain in Spanish hands. This left a large number of western Americans in a very unhappy mood. During these months of many words and little action, Aaron Burr had been travelling through the west, talking to politicians such as Andrew Jackson in Tennessee. Their widely shared desire to drive the Spaniards into the Gulf of Mexico was the sort of thing the former vice president was hoping to hear. In St. Louis, Burr found his friend General Wilkinson, now the governor of the Louisiana Territory, equally enthused by the wrath the President had stirred up against Spain.

  An even larger worry was America’s relationship with Great Britain, which was again showing signs of desperation in the renewed war with Napoleon. Parliament added destructive new rules to the Royal Navy’s blockade of Europe, which entitled His Majesty’s captains to seize American merchant ships almost at will. While admiralty courts debated their fates, the ships lay inert in various harbors in England and the West Indies, their hulls and their cargoes rotting and their owners fuming. In six months, Philadelphia alone lost one hundred ships, valued at $500,000.

  Soon British warships cruised off every American port, ready to board any ship that emerged. At first President Jefferson did nothing but step up construction of his worthless gunboats. In his State of the Union message in December 1805, he went much further, recommending the construction of six ships of the line—seventy-four gun craft that were the battleships of the era. Unfortunately, Congress declined to pay for them. The President’s long-standing fear of military despotism from standing armies and navies was not easily altered by a sudden embrace of moderate realism a la George Washington. Congressman John Randolph and his Quids were quick to join this fray on the Old Republican side, with ruinous effect.12

  The grievance against Britain that stirred America’s deepest emotions was the Royal Navy’s readiness to induct into their ranks any sailor on a captured ship whom they suspected of being a British subject, or worse, a deserter from one of their men of war. Senator John Quincy Adams called it an “authorized system of kidnapping upon the ocean.” The British admitted to seizing three thousand men during these years of global war. Americans claimed it was double that figure.13

  The British were totally intransigent on this issue. In London, envoy James Monroe persisted in a long and wearisome series of discussions. As we have seen, Jefferson’s “pell-mell” etiquette added to his woes. The President sent William Pinkney, Attorney General of Maryland, to assist him with fresh instructions. The move infuriated Monroe, much as his special embassy had angered Robert Livingston in Paris. Finally, the two weary diplomats signed an agreement that would supposedly replace the hated Jay Treaty, without quite resolving the impressment issue.

  When President Jefferson read the document, he found it unsatisfactory. The British promised to offer “immediate redress” to any American mistakenly kidnapped. This was better than nothing. But Jefferson’s hatred of Britain convinced him that his spokesmen could and should obtain a total abandonment of impressment, plus a public apology.

  Equally irritating to the President was a clause in which America surrendered the right to bar British imports as a form of protest. Jefferson refused to abandon this tactic, which had worked well in the years preceding the American Revolution. President Washington might have signed the treaty, with the proviso that this clause would be dropped. But President Jefferson’s British hatred led him to inform the dismayed Monroe and Pinkney that he would not even submit their effort to the Senate. In retrospect, this decision would become a major step down the slippery slope to the War of 1812.14

  C
HAPTER 31

  The President vs. The Chief Justice

  ABSORBED BY FOREIGN POLICY, President Jefferson remained oblivious to a conspiracy that was taking shape on his western frontier. Aaron Burr was recruiting a thousand-man army in western New York, Pennsylvania, and Ohio. Ambassador Merry’s letter requesting British assistance had failed to win a response in London. The ex-vice president had refused to be discouraged by this rebuff. Nor did his hunger for revenge diminish when Jefferson and Secretary of State Madison abandoned their threats of war with Spain to deal with the British assault on America’s merchant ships. Burr was betting on what he saw and heard from several visits to Washington, D.C.

  John Randolph’s revolt was threatening Jefferson’s control of Congress. “Administration is damned,” Burr gleefully informed General Wilkinson. The President’s failure to do anything about British depredations on the high seas or Spanish intransigence in Florida was convincing many people that the Man from Monticello was not a strong president in the George Washington tradition.1

  An aggressive move by Spain added to Burr’s hopes. The Spanish had sent thirteen hundred men across the Sabine River to seize a slice of land east of this stream, which supposedly marked Louisiana’s border with Texas. The President had ordered General Wilkinson to challenge them. A war with Spain seemed theirs for the starting. Burr rushed messengers to New Orleans to inform Wilkinson that he and his volunteers were about to board boats to descend the Mississippi and begin their attack on Texas.

  Burr did not know that General Wilkinson had been dismayed by the British failure to respond to Ambassador Merry’s letter. The General had been especially disappointed by the British dismissal of Burr’s request for a badly needed $500,000 to finance the expedition. Wilkinson had also been unnerved by rumors of Burr’s plan that had gotten into several western newspapers. The General arrested Burr’s messengers and rushed letters to President Jefferson declaring he had just uncovered a nefarious plot to revolutionize the West and start a war with Spain. Other letters went to the Spanish governor of East Florida and the imperial viceroy in Mexico City, revealing Agent 13’s good deed and demanding an appropriate reward.2

  President Jefferson went berserk. Gone was the philosophical detachment he had displayed in the past, when he had spoken almost casually about the eventual separation of the western states from the Union. Now he became a Unionist with a passion that rivaled George Washington. Jefferson knew Burr was trying to deprive him of the Louisiana Territory—the greatest—and perhaps only—noteworthy achievement of his presidency.

  The man who had serenely announced there would be no “monarchical” proclamations issued while he was president now unleashed one. He announced—and denounced—a plot to destroy the Union, and ordered the U.S. Army and federal officials in the West to treat Burr and his volunteers as traitors. When the colonel and his flotilla reached Natchez, U.S. soldiers arrested them at gunpoint. Burr tried to flee, but was quickly captured and shipped to Richmond, Virginia for a trial and possible execution.

  The enraged President announced to Congress and the country that Burr was guilty “beyond question.” This was a reckless thing for a president with a law degree to say about a man before he even reached a courtroom. In Washington, D.C., Chief Justice John Marshall decided he was not going to let Thomas Jefferson hang the man who had rescued the Supreme Court from Democratic-Republican destruction. The Chief Justice announced he would personally preside over Aaron Burr’s trial for the crime of treason.3

  If there was a man on earth Thomas Jefferson hated more than George Washington, it was John Marshall. The President suspended all other federal business to superintend Aaron Burr’s trial. When the attorney general, Caesar Rodney of Delaware, withdrew from the case, explaining he had no enthusiasm for prosecuting a man who had once been a friend, the President appointed George Hay as his replacement. This was the same man who had battered James Thomson Callender over the head with a club for revealing Jefferson’s supposed liaison with his slave, Sally Hemings. In spite of—or perhaps because of—this unorthodox demonstration of loyalty, the President had appointed him the federal attorney for Virginia.

  Chief Justice Marshall staggered Prosecutor Hay by announcing that he could find probable cause for a trial on only one count: the misdemeanor of waging war against Spain, a country with whom the United States was at peace. As for the evidence of treason presented thus far—the cipher letter that General Wilkinson had seized from Burr’s messengers in New Orleans—it was much too weak to take seriously. The General himself was still en route from New Orleans to testify at Burr’s trial.

  The Chief Justice saw no reason to send the ex-vice president to prison while awaiting better proof. Quoting the famed British jurist, William Blackstone, Marshall said he could not allow “the hand of malignity” to seize an individual and deprive him of his liberty.

  Among the politicians crowding the Richmond courtroom, there was not one who failed to recognize whose hand was being accused of malignity. As they sat in stunned silence, Marshall set May 22, 1807, as the trial date.4 When news of this ruling reached the Presidential mansion, a tantrum ensued. An enraged President Jefferson sent letters whirling to his leaders in Congress, urging them to revive the proposed constitutional amendment that had loomed over the trial of Justice Chase, permitting any federal judge to be removed by a majority vote of Congress.

  The Chief Justice’s reply to this threat did nothing to moderate President Jefferson’s tantrum. Marshall insisted on the importance of adhering strictly to the Constitution—another thrust certain to make a former strict constructionist squirm. Treason was a charge that was “most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of parties struggling for power.”5

  The presidential residence all but vibrated with President Jefferson’s rage. Soon dozens of federal marshals were heading west to find proof that Burr intended to create a new empire out of a “scissionist” Tennessee, Kentucky, and perhaps Ohio, plus conquered Texas and Mexico. In seven frantic weeks, the federal agents collected a mini-army of 140 witnesses who were ordered to struggle across the Alleghenys to Richmond without an hour’s delay. This roundup cost $100,000—well over a million dollars in modern money. Secretary of the Treasury Gallatin must have blanched at the hole this outlay punched in the precariously balanced federal budget, which was no longer supported by domestic taxes.6

  In Richmond, ex-Vice President Burr enjoyed the hospitality of numerous leading citizens. He added four lawyers to his defense team. The most important was his friend Luther Martin, the successful defender of Judge Chase against the accusations of the man he still called “that scoundrel, Jefferson.” By the time the trial resumed on May 22, 1806, the population of Richmond had leaped from five thousand to ten thousand. Many of these newcomers were westerners, led by Andrew Jackson, who repeatedly proclaimed that the President was a would-be tyrant and General Wilkinson was an abominable liar.7

  A steaming Senator William Branch Giles was among the Democratic-Republican politicians on the prospective grand jury that federal attorney George Hay assembled. Jefferson’s neighbor and closest collaborator in Congress, Senator Wilson Cary Nicholas, was also there. Echoing the President’s disregard for legal niceties, Giles had proclaimed Burr guilty on the floor of the Senate. Both men were startled when Chief Justice Marshall permitted Burr, serving as his own attorney, to challenge each grand juror. The ex-vice president acidly suggested that Giles and Nicholas would have difficulty pretending they were impartial. Red-faced and fuming, the two senators withdrew.8

  Almost every other juror admitted he thought Burr was guilty. One of the few who said they would wait to hear the evidence was Congressman John Randolph, who was definitely not there to obey President Jefferson’s orders. Chief Justice Marshall coolly appointed him the jury’s foreman.

  Next, Burr asked Marshall’s approval of another motion, designed to send President Jefferson’s b
lood pressure soaring to new and dangerous heights. Burr asked the Chief Justice to order the President to come to Richmond with all possible speed, bringing with him the papers pertinent to the case. A frantic Federal Attorney Hay insisted subpoenaing the President was out of the question. Luther Martin and his fellow defense attorneys seized this opportunity to descant on President Jefferson’s “peculiar” relationship to the case. The Chief Justice cautioned them not to allow the “heat of debate” to produce extreme sentiments. But he did nothing to stop them—and he issued the subpoena.9

  Unlike a king, the Chief Justice said, the president was no more immune to a subpoena than any other citizen. He might have wryly added that Democratic-Republican principles virtually demanded this policy. Only if President Jefferson could prove that his job was consuming his “whole time” would he be permitted to stay in his Washington, D.C. mansion. Marshall added that it was “apparent” the President had plenty of time to spare.

  Once more, even the most comatose political insider got the implication: each year, the President spent the summer months in Monticello, leaving clerks to run the federal government in sweltering Washington, D.C. Further bolstering the subpoena, Marshall remarked that it was obvious the President “wished” to convict his former vice president. That made it necessary for the court to give the defendant all possible assistance.

  When Federal Attorney Hay frantically protested the word “wished,” Marshall admitted he might be right, and substituted “expected.” He refused to change this word, in spite of Hay’s continued unhappiness. All this was, of course, reported in newspapers and in letters to the presidential mansion. President Jefferson replied that he was ready to surrender Wilkinson’s letter to him, but he would be the judge of what other papers he might reveal to the court. As for coming to Richmond—his “paramount duties” as chief executive made this impossible.