As the red-faced Hay read this response to Chief Justice Marshall, many spectators in the courtroom may have asked themselves if President George Washington would ever have let himself get into such a contretemps. Such thoughts were even more probable when General James Wilkinson finally arrived in Richmond in a uniform virtually oozing gold braid. With every well-liquored breath, Spain’s Agent 13 exhaled righteous wrath against his former partner, Burr. Federal Attorney Hay had a long talk with the General and informed the President he was convinced of his “unsullied integrity.” An overjoyed Jefferson added a warm letter of welcome to his favorite soldier. The faceless operatives running Madrid’s secret service must have exchanged covert congratulations for all the money they had paid Agent 13. How many other agents had been able to totally bamboozle a nation’s ruler?
Grand Jury Foreman John Randolph had a very different welcome for President Jefferson’s key witness. He called Wilkinson “the most finished scoundrel that ever lived.” The General’s performance on the stand added weight to that opinion. Under cross-examination from a Burr attorney, Wilkinson admitted that he had erased much of the cipher letter he had seized from Burr’s messengers. When another defense lawyer asked Wilkinson if he had had prior knowledge of Burr’s purported plot, the General declined to answer on grounds of possible self- incrimination.10
Swallowing his disgust, Federal Attorney Hay summoned some fifty witnesses to testify that Burr had taken command of a thousand well-armed men on an island in the Ohio River near the town of Marietta. These witnesses claimed to have listened to plans to seize control of Texas, followed by a call for the western states to join them in a new confederacy, whose first task would be the conquest of Mexico. The grand jurors indicted Burr for plotting to attack Spain’s empire—and for treason against the United States.11
Burr’s jury trial was another public spectacle. It took place in the spacious hall of the Virginia House of Delegates to accommodate the huge crowd of onlookers. General Wilkinson was caught in numerous lies and contradictions by the defense lawyers. A distressed Federal Attorney Hay told the President he was no longer a believer in his star witness’s unsullied integrity. Jefferson, apparently by an act of will, ignored this denunciation and bombarded Hay with suggestions on other ways to obtain a conviction.12
Several witnesses testified to hearing Burr discuss his plans. But had he committed an “overt act” that could be described as treasonous? The legal contest soon revolved around this question. No one had opposed the Burr expedition on their trip down the Mississippi. No one had fired a single shot when federal soldiers called on them to surrender in Natchez.
Federal Attorney Hay focused on the day that Ohio militia under the command of General Edward Tupper had raided the plotters’ island camp. One witness claimed that the Burrites had leveled their muskets at them and forced a hasty retreat. But no one corroborated the incident, and General Tupper denied seeing a leveled gun anywhere. Burr’s attorneys asked the Chief Justice if there was any point in hearing similar non-evidence from the rest of President Jefferson’s 140 witnesses.13
Marshall agreed that it would be a waste of time. He ordered both sides to make their closing arguments. Luther Martin spoke for three days, denouncing the prosecution as a plot engineered by the scoundrel President Jefferson. Prosecutor Hay, doing his utmost to overcome the missing overt act, reiterated again and again that the assembled army was proof of Burr’s treason. Finally, it was time for the Chief Justice’s decision.14
Marshall spent a full weekend composing his judgment on President Jefferson’s prosecution. He solemnly declared that assembling an army was not enough to convict Aaron Burr of treason. As long as there was no proof of an overt act, he remained beyond the reach of the law. It was one of the most important decisions Marshall ever wrote. Henceforth, no future American prosecutor would be able to convict opponents for theoretical or putative treason. The Chief Justice cited reams of authorities to support his conclusion.
Marshall also noted that the government’s attorneys had hinted that he faced impeachment if he ruled for Burr. “That this court does not usurp power is most true,” the Chief Justice said. “That this court does not shrink from its duty is no less true.” It was an unmistakable challenge to the President to dare try to remove him.15
The jury retired to ponder the case within the framework that the Chief Justice had decreed—and returned in less than an hour to declare that Burr was “not proved to be guilty under this indictment by any evidence submitted to us.” Burr’s attorneys protested this wording but the Chief Justice let it stand. However, he wrote “not guilty” in the trial record. Within a week, the still enraged President Jefferson sent a copy of the proceedings to Congress, and renewed his call for an amendment to enable him to remove any federal judge if a two-thirds majority of Congress approved. The President called Luther Martin “a federal [federalist] bulldog,” and talked of prosecuting him, based on hearsay evidence that the attorney had been involved in Burr’s revolutionary plans.
Any senator or representative who read the details of General Wilkinson’s embarrassing performance on the witness stand almost certainly concluded that the President’s pursuit of vengeance was fatally flawed. Nevertheless, Jefferson’s demand for the amendment was sent to committees in the Senate and House.
Senator William Branch Giles went beyond the President’s attempt to reduce the federal courts to an appendage of the party in power. The hotheaded Old Republican introduced a bill calling for the death penalty for anyone who assembled to resist a federal law, as well as for anyone who assisted such an assembly, even if he were not present when the arrests were made. It made the penalties under the Sedition Act seem trivial. In the hysterical atmosphere that President Jefferson had generated, Giles’s bill passed the Senate, but it was rejected by the House of Representatives. A similar fate befell the President’s demand for a constitutional amendment to demolish the independence of the federal judiciary.16
Burr’s attorneys easily defeated attempts to convict him of waging war against Spain, and he was soon a free man. Travelling north, he stopped in Baltimore and a menacing mob surrounded his hotel. The ex-vice president was forced to flee into the night. It was the first glimpse of the average American’s reaction to Burr’s acquittal. A huge majority was infuriated. Why? Louisiana again. The thought that the ex-vice president had attempted to deprive them or their children or grandchildren access to those 828,000 square miles of fertile land was grounds for detestation and even murder.17
In New York, Burr’s home territory, the reaction was equally hostile. An outcast, Burr fled to Europe, hoping to persuade either the French or the English to back his no longer viable scheme. In the United States, the purchaser of Louisiana remained a popular hero. If Thomas Jefferson had managed to hang Aaron Burr, he would have won cheers in every city and town in America. But historians, looking back on the trial, find it difficult to avoid a shudder at the President’s unWashington performance.
CHAPTER 32
The Final Defeat of the UnWashington President
AMONG THE POLITICAL CLASS, the excesses of the Burr trial had not a little to do with what one historian has called the “ungluing” of the Democratic-Republican Party in the closing years of President Jefferson’s second term. In the House of Representatives, John Randolph and his Tertium Quids remained on the offensive against the President. Revived Federalists collaborated with them whenever possible.1
Another reason for Jefferson’s loss of prestige and control was the ongoing conflict with the Royal Navy on the oceans. American hopes of ending British impressments had expired when Jefferson rejected Monroe’s treaty. But the President persisted in demanding a complete surrender of London’s claim to the right to inspect American merchantmen to make sure they were not violating London’s blockade of Napoleonic France.
Events in Europe worsened the situation for the Americans. Napoleon shelved his plan to invade England. Instead, he turned east and wo
n stupendous victories over the Prussians and the Austrians, giving him control of almost every European port. Deciding to win by ruining the British economy, the Man of Destiny issued decrees banning all trade with the island nation. Ships of neutral countries were liable to seizure if they had so much as visited a British port. The British responded with new Orders in Council, creating a tighter blockade of Bonaparte’s continent. The two belligerents in effect declared commercial war on the ships of every other trading nation. The British admiral in Halifax, Nova Scotia, issued an order to the squadron patrolling off Virginia to board any and all ships, including men of war, to seize deserters from the Royal Navy.
Meanwhile, President Jefferson was still fighting his undeclared war with the Muslim pirates off North Africa. A new fifty-gun American frigate, the USS Chesapeake was ordered to join this seemingly interminable struggle. On June 22, 1807, the warship was put to sea for the long voyage. Suddenly, lookouts shouted that a British man of war was heading toward them. HMS Leopard surged alongside and demanded the right to board the Chesapeake to search for deserters.
When the American frigate’s captain refused to submit to such an indignity, the Leopard opened fire at point blank range, killing three Americans and wounding eighteen. The unprepared, mostly untrained crew of the Chesapeake surrendered. A boarding party seized four men, only one of whom was a British-born deserter. The other three were Americans who had been impressed a few months earlier from a merchant ship. They had escaped from another frigate in the British squadron and joined the Chesapeake’s crew.2
The nation exploded. Calls for war blossomed in dozens of newspapers. President Jefferson broke his no proclamation rule again and barred all British warships from American ports. He summoned Congress to meet two months earlier than its next scheduled session, and intimated they might be asked to declare war to settle once and for all the “long train of injuries and depredations under which our commerce has been afflicted on the high seas for years past.” He summoned all America’s merchant ships home as soon as possible, and ordered dozens more of his gunboats built to defend the nation’s harbors. He also asked the states to mobilize an army of one hundred thousand militiamen and discussed the possibility of conquering Canada.3
The President was dismayed to find his cabinet deeply divided about these measures. Secretary of State Madison was in full agreement with his enraged leader. But Secretary of the Treasury Gallatin disliked the President’s entire message. He told Jefferson the country was totally unprepared for war with the British.
Secretary of War Henry Dearborn warned the President that it would take months for the understaffed federal government to persuade the states to muster one hundred thousand militiamen to serve in a federal army. Secretary of the Navy Robert Smith told Jefferson he was making a huge mistake, linking the attack on the Chesapeake with the British impressment policy. The captain of HMS Leopard was clearly at fault. Why imperil a chance for an advantageous negotiated peace or at least truce with a “manifesto against the [whole] British government?”4
Jefferson was suddenly in the same presidential hot seat that George Washington had occupied when half his cabinet disagreed with the other half. By August, the President was semi-backing down and thinking of war with Spain rather than Great Britain. “Our southern defensive force can take the Floridas, volunteers for a Mexican army will flock to our standard…Perhaps Cuba will add itself to our Confederation,” he told the startled Madison. Aside from the wildly unrealistic dimensions of these thoughts, the President did not seem to realize that he was virtually admitting Aaron Burr’s game plan had some merits.5
The British tried to avoid a war by admitting that the attack on the Chesapeake had been a blunder. They relieved the captain of HMS Leopard, offered to pay reparations for the dead and wounded, and said they were ready to return the three seized Americans. The British-born deserter was, however, hanged in Canada. President Jefferson stubbornly insisted he would be satisfied only with the complete abandonment of impressments. He dismissed the British offer as “unfriendly, proud and harsh.”
Soon the President was cheering new victories by Napoleon. He informed Madison that if he had to choose between George III and Bonaparte, he leaned toward the Corsican. “I say, ‘Down with England!’” he cried, as his long-running hatred of the British overcame his judgment.
A harried Secretary of the Treasury Gallatin warned Jefferson that public opinion was now hostile to a war over the Chesapeake. Most people, especially in New England and the Middle States, were satisfied with the British semi-apology and offer of compensation. The outrage over the attack on the warship had evaporated. Unfortunately, Gallatin’s wise advice was overwhelmed by the latest news from Europe. A new British decree declared naturalization papers of British-born American seamen would be disregarded in impressment operations. Any and every Briton was liable to seizure. From Paris came word that, henceforth, American ships would be treated as former friends and seized without mercy.
On December 18, 1807, President Jefferson responded with a new and truly astonishing message to Congress. He wanted approval for a measure that would protect American ships and seamen from all “the belligerent powers of Europe.” How was this to be done? By an “inhibition of the departure of [all] our vessels.” With almost no discussion of its merits, Congress passed the Embargo Act, which forbade American ships to trade with Britain, France, and every other nation in the world.
A leading historian has called this move “the greatest example in American history of ideology brought to bear on a matter of public policy.”6 Americans would soon discover how President Jefferson, the apostle of minimal government, ruled, when the people rejected one of his theories.
Once more, Secretary of the Treasury Gallatin disagreed with the President’s policy, this time vehemently. He accused Jefferson and his Secretary of State of reacting much too hastily. Gallatin went even further, with words of warning that deviated sharply from standard Democratic-Republican thinking. “In every point of view, privations, sufferings, revenue, effect on the enemy, politics at home, I prefer war to a permanent embargo.” The Secretary of the Treasury added words that remain to this day a standing rebuke to all ideologues: “Governmental prohibitions do always more mischief than had been calculated, and it is not without much hesitation that a statesman should hazard to regulate the concerns of individuals as if he could do it better than themselves.”7
President Jefferson ignored Gallatin. He confused the Secretary of the Treasury and other critics by urging Congress to prepare the nation for war. At first, he apparently did not see the embargo as more than a temporary device. But it dawned on the President and his cabinet that announcing a six-month limit was self-defeating. Both Jefferson and Madison hoped to force Britain to negotiate on their terms. This leverage would only be achieved if the King and his ministers were frightened by fear of permanent damage to their economy.
Unfortunately, another Jefferson policy, the abolition of all internal taxes, forced the President to allow the British to continue to export goods and products to America in British ships. The duties on these imports were needed to keep the federal government solvent. This contradiction at the heart of the embargo would prove to be a fatal flaw.8
In January 1808, another important matter seized President Jefferson’s attention—the choice of his successor. He strongly preferred James Madison. But he had to deal with angry cries from New York that it was their turn to have a president. There sat Vice President George Clinton waiting for the call. John Randolph and his Quids backed James Monroe and said nasty things about Madison’s fragile health and lack of leadership qualities. But the President made his choice very clear, and not many politicians were ready to challenge the purchaser of Louisiana. On January 23, 1808, the congressional Democratic-Republicans caucused and nominated Madison almost unanimously. Aging, incompetent George Clinton was again nominated for Vice President.
With the Federalist Party in ruins, Madison was a c
ertain victor in the fall elections. There was no campaign worth mentioning, in the modern sense of the word. Even if the Federalists had remained a viable party, it would have been a strange one-issue contest. The nation was totally absorbed by the burden that President Jefferson had inflicted on them: the embargo.
The President soon found himself forced to explain to puzzled citizens and critics in Congress, such as John Randolph and his Quids, the reasoning behind this totally unexpected experiment. Secretary of State Madison rushed three anonymous articles into print in the National Intelligencer. He called the embargo a noble alternative to war. It was a chance for Americans to show the world that “we will flinch from no sacrifices which the honor and good of our nation demand from virtuous and faithful citizens.”
This was the ideological rhetoric that had almost destroyed the Americans in 1776. The satisfaction of being virtuous was supposed to be the only motivation for a true patriot. Realist General Washington’s response to this theory had been interest; nothing political was ever accomplished without appealing to people’s self-interest or hope of some reward. Alas, the so-called Revolution of 1800 had blurred, if not destroyed, the value of Washington’s wisdom.9
In Congress, Democratic-Republican ideologues decreed that all parts of the nation should prove their virtue by suffering mutually under the embargo. They persuaded Congress to ban the export of all farm crops as well as manufactured products. Meanwhile, the Secretary of War reported that there was no hope of the states recruiting one hundred thousand militia for the army. Jefferson responded by calling for eight additional regiments for the regular army at a cost of $4 million.
John Randolph and his Quids mocked this proposal. Didn’t it violate the Democratic-Republican principle of no standing army in time of peace? The eight regiments raised the number of regulars to ten thousand men, hardly enough to defend a single state, much less the whole nation. The unreality of Democratic-Republican military thinking was underscored by laying keels for another 188 worthless gunboats.10
The Great Divide Page 44