by H. W. Brands
Hay proceeds to detail Burr’s treasonous plans. “It will be proved to you, gentlemen of the jury, that the design of the prisoner was not only to wage war against the Spanish provinces but to take possession of the City of New Orleans, as preparatory to that design; to detach the people of that country from this, and establish an independent government there, and to dismember the union, separate the western from the eastern states, making the Allegheny Mountains the boundary line. You will perceive from the evidence that he intended to take possession of New Orleans, to excite the people there to insurrection, and to take advantage of the hostile sentiments which prevailed to the west of the Alleghenies against the Spaniards.”
Hay allows that Burr did not reveal his entire project to all those he drew into his web. “But he did disclose it to a few; and fortunately for our country he was mistaken in his opinion of those persons in whom he confided.” These persons will tell their story, and Burr’s, Hay says.
The prosecutor traces Burr’s travels during the previous eighteen months. “For the purpose of accomplishing these great designs, of establishing an empire in the West, of which New Orleans was to be the capital, and the accused was to be chief, he made two long visits to the western country. He went to Ohio, Tennessee and Kentucky, in fact to all the western world, and traveled in various directions, till he went finally to New Orleans. Wherever he went, he spoke disrespectfully of the government of his country, with a view to facilitate the consummation of his own designs. He represented it as destitute of energy to support or defend our national rights against foreign enemies, and of spirit to maintain our national character. To those in whom he confided, he asserted that all the men of property and influence were dissatisfied with its arrangements, because they were not in the proper situation to which they were entitled; that with five hundred men he could effect a revolution by which he could send the president to Monticello, intimidate Congress, and take the government into his own hands; that the people of the United States had so little knowledge of their rights, and so little disposition to maintain them, that they would meanly and tamely acquiesce in this shameful usurpation.”
Hay details how Burr’s treasonous plan took material shape. “In the summer and fall of 1806, men were actually enlisted, boats were built on the waters of the Ohio, provisions purchased to an enormous amount and arms and ammunition provided.” The men were promised land in Louisiana, but this was “merely a cover to conceal the real design.” Those who knew of the plan against Spain were lulled into complacency. “All were told that the design was just and honorable, known and approved by the government, in which the cooperation of the army was to be expected, in which great wealth was to be acquired, and that it would be developed as soon as the proper time for the disclosure arrived.”
That time, however, did not arrive. James Wilkinson, having discerned Burr’s designs, rescued the republic. “If he had acted the part of a traitor instead of performing the character of a patriot, I ask: What would have become of this country at this moment? There would have been a civil war waging in the West, and the people of the United States, united as they are by interest, by sympathy and blood, would have been involved in a sanguinary contest, while our eastern coasts would have been insulted and ravaged by an insolent and rapacious foe, in consequence of our divided situation.”
Hay asks the jury not to be swayed by the defendant’s previous high office. “It is true that the prisoner has been vice president of the United States; he has been the second in office in the government of this country, and perhaps second in the confidence and affection of the people.” But this simply aggravates, rather than mitigates, his guilt. “I call upon you, gentlemen of the jury, to disregard all such distinctions in this land of liberty, equality and justice, to view this case in the same light in which you would regard it if any other man in the community were brought before you. I call on you to do justice, and to decide the cause according to the evidence which will be produced before you.”
27
Hay scarcely finishes before the defense challenges the weak spot in the prosecution’s case. The Burr side’s objection takes the form of a challenge to the prosecution’s proposed order of examining witnesses, but it goes deeper—to the issue of whether a crime has even been committed. As Luther Martin explains: “The question is, whether the prosecutors must not prove an overt act in the first instance, before any other evidence can be introduced?” The prosecution has put forward an irregular definition of treason, one not approved by the Supreme Court. Before the prosecution begins questioning witnesses, Martin says, it must demonstrate that treason has been committed. “If A were indicted for killing B, would the legal order be to prove, in the first instance, that long and frequent animosities had existed between them? The counsel for the prosecution must first prove that B has been killed by somebody.” Likewise in a case of horse-stealing: “Does the public prosecutor go into proof of the felonious intention before proving that the horse has been taken?” Similar logic applies to the present case. “They charge us with having committed treason in ‘levying war’ against the United States. This charge is too vague, and must be supported by full testimony according to the well known principles of the law.… If you should permit the witnesses to go into complicated tales of schemes and plots of severing the union, resting solely on the imputed intentions of the accused, and yet the result of a long and elaborate inquiry would be that there was no act of war, it would be worse than a mere waste of time.… Prejudices would be increased; the intention would be taken for the deed, under the influence of impressions not to be resisted when the act was incomplete. The jury ought not to be troubled with evidence which is wholly immaterial till the overt act be proved.”
John Marshall ponders the objections of the defense but lets the prosecution call its witnesses. “Levying of war is a fact which must be decided by the jury,” he said. The evidence must be heard for the jury to render its decision.
The prosecution summons William Eaton, the controversial hero of the war against the Barbary pirates. “During the winter of 1805–6—I cannot be positive as to the distinct point of time, yet during that winter,” Eaton says, “at the city of Washington, Aaron Burr signified to me that he was organizing a military expedition to be moved against the Spanish provinces on the southwestern frontiers of the United States, I understood under the authority of the general government. From our existing controversies with Spain, and from the tenor of the president’s communications to both houses of Congress, a conclusion was naturally drawn that war with that power was inevitable. I had just then returned from the coast of Africa, and having been for many years employed on your frontier or on a coast more barbarous and obscure, I was ignorant of the estimation in which Mr. Burr was held by his country. The distinguished rank he held in society and the strong marks of confidence which he had received from his fellow citizens did not permit me to doubt of his patriotism. As a military character, I had been acquainted with none within the United States under whose direction a soldier might with greater security confide his honor than with Mr. Burr. In case of my country’s being involved in a war, I should have thought it my duty to obey so honorable a call as was proposed to me. Under impressions like these, I did engage to embark myself in the enterprise, and pledged myself to Mr. Burr’s confidence.”
Burr showed him maps of Mexico, Eaton says, and other documents pertaining to an invasion of that country. But gradually Eaton divined that more was involved. “From certain indistinct expressions and innuendoes I admitted a strong suspicion that Mr. Burr had other projects. He used strong expressions of reproach against the administration of the government; accused them of want of character, want of energy, and want of gratitude. He seemed desirous of irritating my resentment by dilating on certain injurious strictures I had received on the floor of Congress, on account of certain transactions on the coast of Tripoli, and also on the delays in adjusting my accounts for advances of money on account of the United States.�
��
But Eaton says he kept his doubts to himself. “As I had by this time begun to suspect that the military expedition he had on foot was unlawful, I permitted him to believe myself resigned to his influence, that I might understand the extent and motive of his arrangements.”
The ruse worked. “Mr. Burr now laid open his project of revolutionizing the territory west of the Allegheny; establishing an independent empire there; New Orleans to be the capital, and he himself to be the chief; organizing a military force on the waters of the Mississippi and carrying the conquest to Mexico.… He proposed to give me a distinguished command in his army; I understood him to say the second command. I asked him who would command in chief. He said, General Wilkinson.” Eaton knows Wilkinson and evinced skepticism that he would accept a position inferior to Burr or anyone else. Burr waved away the objection. “From the tenor of much conversation on this subject, I was prevailed upon to believe that the plan of revolution meditated by Mr. Burr and communicated to me had been concerted with General Wilkinson and would have his cooperation, for Mr. Burr repeatedly and very confidently expressed his belief that the influence of General Wilkinson with his army, the promise of double pay and rations, the ambition of his officers and the prospect of plunder and military achievements would bring the army generally into the measure.”
Prosecutor Hay asks why Eaton did not share his suspicions with members of the administration.
“The situation which these communications, and the impressions they made upon me, placed me in was peculiarly delicate,” Eaton explains. “I had no overt act to produce against Mr. Burr. He had given me nothing upon paper, nor did I know of any person in the vicinity who had received similar communications and whose testimony might support mine.” Moreover, Burr’s justifications carried a certain plausibility. “Mr. Burr talked of this revolution as a matter of right, inherent in the people, and constitutional: a revolution which would rather be advantageous than detrimental to the Atlantic states, a revolution which must eventually take place, and for the operation of which the present crisis was peculiarly favorable.” Moreover, Eaton says, he feared Burr. “I durst not place my lonely testimony in the balance against the weight of Mr. Burr’s character, for by turning the tables upon me, which I thought any man capable of such a project was very capable of doing, I should sink under the weight.”
Hay completes the prosecution’s questioning of Eaton, and Burr approaches the witness to cross-examine. “You spoke of my revolutionizing the western states,” he says. “How did you understand that the union was to be separated?”
“Your principal line was to be drawn by the Allegheny Mountains,” Eaton replies. “You were persuaded that you had secured to you the most considerable citizens of Kentucky and Tennessee, but expressed some doubts about Ohio—I well recollect that, on account of the reason which you gave: that they were too much of a plodding, industrial people to engage your enterprise.”
“How was the business to be effected?”
“I understood that your agents were in the western country, that the army and the commander in chief were ready to act at your signal, and that these, with the adventurers who would join you, would compel the states to agree to a separation. Indeed, you seemed to consider New Orleans as already yours, and that from this point you would send expeditions into the other provinces, make conquests and consolidate your empire.”
Why, again, Burr asks, had Eaton taken no action to oppose this scheme?
“I determined to use you, until I got everything out of you, on the principle that when innocence is in danger, to break faith with a bad man is not fraud but virtue.”
28
The next witness is Thomas Truxton, the naval hero. “Have you not had several conversations with the accused about the Mexican expedition?” prosecutor Hay asks.
“About the beginning of the winter of 1805–6 Mr. Burr returned from the western country to Philadelphia,” Truxton replies. “He frequently, in conversation with me, mentioned the subject of speculations in western land, opening a canal and building a bridge. Those things were not interesting to me in the least, and I did not pay much attention to them.” Burr then changed the subject, Truxton says. “Mr. Burr mentioned to me that the government was weak, and he wished me to get the navy of the United States out of my head; that it would dwindle to nothing, and that he had something to propose to me that was both honorable and profitable.… He told me that he wished to see me unwedded from the navy of the United States, and not to think more of those men at Washington; that he wished to see or make me—I do not recollect which of those two terms he used—an admiral; that he contemplated an expedition to Mexico in the event of a war with
Spain, which he thought inevitable. He asked me if Havana could be easily taken in the event of a war. I told him that it would require the cooperation of a naval force. Mr. Burr observed to me that that might be obtained. He asked me if I had any personal knowledge of Carthagena and La Vera Cruz, and what would be the best mode of attacking them by sea and land. I gave him my opinion very freely. Mr. Burr then asked me if I would take command of a naval expedition. I asked him if the executive of the United States were privy to or concerned in the project. He answered emphatically that he was not.… I told Mr. Burr that I would have nothing to do with it.… He observed to me that in the event of a war, he intended to establish an independent government in Mexico; that Wilkinson, the army and many officers of the navy would join. I told Mr. Burr that I did not see how any officer of the United States could join. He said that General Wilkinson had projected the expedition, and he had matured it; that many greater men than Wilkinson would join, and that thousands to the westward would join.”
Truxton says he doubted the premise of Burr’s plan. “I told him there would be no war.” Burr insisted there would be. “He said, however, that if he was disappointed as to the event of war, he was about to complete a contract for a large quantity of land on the Washita; that he intended to invite his friends to settle it, that in one year he would have a thousand families of respectable and fashionable people, and some of them of considerable property; that it was a fine country, and that they would have a charming society, and in two years he would have doubled the number of settlers. And being on the frontier he would be ready to move whenever a war took place.… Mr. Burr said that after the Mexican expedition, he intended to provide a formidable navy, at the head of which he intended to place me; that he intended to establish an independent government and give liberty to an enslaved world.”
Burr, cross-examining, asks Truxton to characterize the tone of their conversations. “Was there any reserve on my part?” he inquires.
“We were very intimate,” Truxton answers. “There seemed to be no reserve on your part.”
“Did you ever hear me express any intention or sentiment respecting a division of the Union?”
“I never heard you speak of a division of the Union.”
“Did I not state to you that the Mexican expedition would be very beneficial to this country?”
“You did.”
“Had you any serious doubt as to my intentions to settle those lands?”
“So far from that, I was astonished at the intelligence of your views contained in newspapers received from the western country after you went thither.”
“Would you not have joined in the expedition if sanctioned by the government?”
“I would most readily get out of my bed at twelve o’clock at night to go in defense of my country at her call, against England, France, Spain or any other country.”
Peter Taylor, the prosecution’s next witness, was a gardener on Blennerhassett Island. He explains how Harman Blennerhassett boasted of the aims of the military expedition he and Burr were putting in motion. “I will tell you what, Peter, we are going to take Mexico, one of the finest and richest places in the whole world,” Taylor quotes him. Taylor adds, “He said that Mr. Burr would be the king of Mexico, and Mrs. Alston, the daughter of Mr.
Burr, was to be the queen of Mexico, whenever Mr. Burr died. He said that Mr. Burr had made fortunes for many in his time, but none for himself; but now he was going to make something for himself. He said that he had a great many friends in the Spanish territory; no less than two thousand Roman Catholic priests were engaged, and that all their friends too would join, if once he could get to them; that the Spaniards, like the French, had got dissatisfied with their government and wanted to swap it. He told me that the British were also friends in this piece of business, and that he should go to England, on this piece of business, for Mr. Burr.”