The Heartbreak of Aaron Burr

by H. W. Brands

  Prosecutor Hay asks Taylor about the activities at Blennerhassett’s. “Were you not on the island when the people were there?”

  “Yes.”

  “When did the boats leave the island?”

  “It was contemplated to sail on the sixth of December, but the boats were not ready. They did not come till the tenth, Sunday.… They sailed on the Wednesday night following.”

  “How many boats were there?”

  “Four.”

  “How many men from the boats came ashore?”

  “About thirty.”

  “What did the men do who did not belong to the boats?”

  “Some were packing meat, and some were packing other things.”

  “Had they any guns?”

  “Some of them had; some of the people went a-shooting. But I do not know how many there were.”

  “What kind of guns—rifles or muskets?”

  “I can’t tell whether rifles or muskets. I saw no pistols but what belonged to Blennerhassett himself.”

  “Was there any powder or lead?”

  “They had powder, and they had lead both. I saw some powder in a long small barrel, like a churn. But I was so employed I could not notice particularly. Some of the men were engaged in running bullets, but I do not know how many.”

  “Did you carry some boxes to the boats?”

  “I carried half a bushel of candles and some brandy—several boxes—but I knew not what they contained, and a great many things besides, of which I knew nothing.”

  William Love says much the same thing as Taylor, but neither man can place Burr on the island. Dudley Woodbridge remembers seeing Burr with Blennerhassett at Marietta when Burr ordered the construction of the boats and the purchase of the provisions.

  “Do you recollect that I told you that I wanted the description of boats used in the Mohawk River?” Burr asks Woodbridge on cross-examination. “And were they not made for shoal water, and to go up the stream?”

  “You did. The boats were to be calculated for shallow water.”

  “You know Mr. Blennerhassett well,” Burr says. “Was it not ridiculous for him to be engaged in a military enterprise? How far can he distinguish a man from a horse—ten steps?”

  “He is very near-sighted. He cannot know you from any of us, at the distance we are now from one another. He knows nothing of military affairs.”

  William Wirt, for the prosecution, interrupts: “What were his pecuniary resources? What was the state of his money matters?”

  “I believe they were not as great as generally imagined,” Woodbridge replies. “His fortune is much less than is generally understood. He has not over five or six thousand dollars in the hands of his agent at Philadelphia. His island and improvements cost about forty or fifty thousand dollars. It would not, however, sell, except to a person of the same cast with Mr. Blennerhassett.”

  “Is he esteemed a man of vigorous talents?” Wirt inquires.

  “He is, and a man of literature. But it was mentioned among the people in the country that he had every kind of sense but common sense.”

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  The prosecution is about to summon further witnesses when the defense renews its objection to the order of evidence. More testimony on the events on Blennerhassett Island will illegitimately and irrevocably prejudice the jury, John Wickham declares. “It not only appearing from the proofs, but being distinctly admitted, that the accused, at the period when war is said to have been levied against the United States, was hundreds of miles distant from the scene of action, it becomes necessary for his counsel to object to the introduction of any such testimony, as, according to our view of the law on this subject, it is wholly irrelevant and inadmissible.” Wickham surveys the history of England, France and the United States to support his point. “The great object of the American constitution was to perpetuate the liberties of the people of this country. The framers of that instrument well knew the dreadful punishments inflicted, and the grievous oppressions produced, by constructive treasons in other countries.” Kings in England made mere dissent a species of treason. Robespierre sent his critics to the guillotine as traitors. The framers of the Constitution insisted on guarding against such excesses. “The language which they have used for this purpose is plain, simple and perspicuous. There is no occasion to resort to the rules of construction to fix its meaning. It explains itself. Treason is to consist in levying war against the United States, and it must be public or open war; two witnesses must prove that there has been an overt act.” The prosecution has failed to produce such witnesses or to demonstrate such an overt act. It has adduced evidence that Aaron Burr did not agree with the administration and perhaps envisioned a future for the United States different from the one endorsed by a majority of the American people. But to construe this as treason, as the methods of the prosecution attempt to do, is to pervert the very meaning of the Constitution and of American history. “They have a direct tendency to root out and destroy every principle of freedom.… I trust they will never be sanctioned in this country.”

  John Marshall agrees. On August 31, Marshall delivers a learned and lengthy opinion. He notes that the prosecution has conceded that Burr was not at Blennerhassett Island when the acts described in the indictment took place. He considers what the framers meant when they said, “Treason against the United States shall consist only in levying war against them.” Citing additional precedents from English and American law, Marshall asserts that levying war requires “overt acts,” not merely the planning or preparation for such acts. Moreover, the Constitution stipulates that these acts be witnessed by two persons.

  Circumstantial evidence does not suffice. Of particular significance in the present case: “No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transaction on Blennerhassett’s Island can be admitted, because such testimony, being in its nature merely corroborative and incompetent to prove the overt act itself, is irrelevant until there be proof of the overt act by two witnesses.”

  With this statement Marshall effectively explodes the case against Burr. The prosecution hasn’t produced one witness, let alone two, to any overt acts of war by Burr. Yet the jury must render the final verdict, Marshall says. “The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty as their own consciences may direct.”

  So instructed, the jury requires little time to deliberate. “We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us,” the foreman declares. “We therefore find him not guilty.”

  30

  Burr is enough the lawyer to appreciate the historical significance of his acquittal, and enough the ironist to relish the way the decision was reached. Jefferson has long been the voice of strict construction of the Constitution; with few exceptions (including the purchase of Louisiana, the territory at the heart of the current controversy) he contends that what the Constitution does not expressly authorize is forbidden. The words of the federal charter mean what they say and nothing more. And yet in the present case Jefferson and his prosecutors have urged the court to accept a broad construction of the treason clause, appealing to an underlying meaning rather than the letter of the law. On the other side, John Marshall in most matters has advocated and practiced a generous construction of the Constitution, allowing the courts latitude in interpreting the charter and the government energy in pursuing its goals. Yet Marshall in the present case has insisted on the letter of the law as it relates to treason and has placed handcuffs on the government in its prosecution. Burr understands the power of precedent, and he can guess that

  Marshall’s handcuffs will stay on government prosecutors for a long time, making treason very difficult to prove in American courts.

  But Burr is also enough the realist to recognize that his victory, however politically ironic and legally historic, is personally pyrrhic.
He won’t be hanged or go to prison on the treason charges, but neither will he resume anything like a normal life. Jefferson has already excommunicated him from the Republican party; angrier than ever, the president will forbid Republicans from engaging Burr even as a lawyer. Nor will the Federalists furnish a refuge; Hamilton’s blood has made Burr a pariah for the opposition party as well.

  He briefly resumes his law practice, but clients are scarce. As the practice falters, his creditors close in. Prison looms, not for treason but for debt. Having attempted to flee west, unsuccessfully, he turns his face east. He quietly informs Theo, who has returned to South Carolina after accompanying him to New York, that he is departing for Europe. “My letters to you will be often in a strange handwriting, and with various signatures, sometimes feminine,” he says. “Put all my papers and manuscript books into some one box (you may get one made for the purpose, if you please), and leave it with Mrs. P., keeping yourself the key. Tell her, in a manner which she may or may not understand, that they are yours.” Theo should write to him as G. H. Edwards, the name under which he will travel.

  She does so, in sibling guise. “After your departure, my dear brother, we were alarmed with a report that you had been taken by the French,” she says. “But as it was immediately contradicted, I yielded to my belief in the superiority of the English at sea, and to my reliance in the protection of your friend Neptune. I am extremely anxious and impatient to hear from you, and learn the particulars of your voyage. Never were hopes brighter than mine. To look on the gloomy side would be death to me, and without reserve I abandon myself to all the gay security of a sanguine temper. Adieu.” She adds: “A. B. A. is well, and kisses you, as does your devotedly affectionate, Mary Ann Edwards.”

  They share a cipher code for references to friends, lest their letters be read by Jefferson’s spies and those friends be compromised. “It was omitted in my last to say that 69 has given me letters to the two principal partners of the house of 70,” Burr writes. “69’s had not arrived. My health has been improved by the journey. Communicate thus much to 71 and 72.”

  He lands in London and charms the locals. Jeremy Bentham, the famous utilitarian philosopher and reformer, becomes a confidant and fast friend. Bentham invites Burr to Barrow Green, his summer estate outside London. “Mr. Bentham’s countenance has all that character of intense thought which you would expect to find,” Burr writes Theo. “But it is impossible to conceive a physiognomy more strongly marked with ingenuousness and philanthropy. He is about sixty, but cheerful even to playfulness.” Bentham makes Burr one of his household. “After assigning to me my apartment, he led me immediately into what he calls his ‘workshop’ (a spacious room, fitted up with great convenience for his purposes), showed me his papers, and gave me an unqualified privilege to read anything and at any time. It was impossible to have given me a more flattering mark of confidence. We pass about six hours a day in our separate rooms, and the residue together—hitherto without ennui. Mr. Bentham loses nothing by being seen and known. I have daily new reason to admire the amazing extent and acuteness of his mind.”

  Burr tells Bentham of Theo and her intellectual attainments. Bentham, an advocate of women’s education, applauds Burr’s and Theo’s efforts and contributes to them. “Make up, if you can find room, for my dear little Theodosia, a packet of all my combustibles that you can find,” he directs Burr: “Panopticon; Hard-labour Bill; Pelham’s Letters and Plea for the Constitution; Poor Management; Judicial Establishment; Political Tactics and Emancipation.” Some of these works have not been published yet and are available only in pages. “Thus you see you are to possess his works by his own special gift,” Burr tells Theo. He adds: “By the next ship, also, I shall send you a bust of Mr. Bentham, a very good representation of him, but has not the force of the original. Still you will admire it; and so you ought, for you may rank him among your admirers.”

  Transatlantic delivery, however, is uncertain. “Not one word from you has reached me since those few lines from the first stage,” Theo writes after several months. “I did not expect to have remained thus long in this painful suspense. There are a thousand vague reports about you. As it regards myself, conjecture on the subject is at a stand, and I write now almost without a hope of being read. I write without pleasure, and only, indeed, to satisfy my desire of seizing every opportunity to gratify you, even though I should have only one chance of success in a million.”

  Burr replies that the lack of letters is not his fault. “I write you a great deal, but do not choose to trust it to ordinary modes of conveyance. The next safe private hand, you shall have some details. I have on hand (that is, in my head) a stock that will serve you for some years of amusement. I write by this conveyance to 71, whom I must ever recommend to your affection and confidence.” He appends a matter of business: “Out of the money which you will receive on 1st December, remit to Jeremy Bentham, for me, two hundred guineas. T. W. Moore will put you in a way to remit with safety and without loss.”

  Eventually one of his letters gets through. “I cannot tell you what pleasure it gave me to find that you had already introduced me to so great and celebrated a person as Jeremy Bentham,” Theo replies. “At such a distance, amid so many new and interesting objects, to think constantly of me; that I should be present to your thoughts, and the subject of your conversations during your first interview with a man so calculated to absorb all your attention, and so likely to converse on things of a very different order from me and my concerns, delights and flatters me really more than I can express.”

  She relates the most recent news from Washington. “Our politicians and wise ones predict that Madison must be president and the embargo continued.” The embargo of America’s foreign trade is Jefferson’s attempt to halt the seizure of American shipping by the navies of Britain and France as those historic rivals struggle for mastery of Europe. The measure is highly unpopular, especially in the commerce-dependent seaboard states. “The legislature of Connecticut, or, rather, a committee named for the purpose, have framed some very spirited resolutions on the subject of the embargo, protesting against its indefinite continuance as an infringement of the rights of the people. Indeed, from the temper of the Eastern states at present, it is very generally believed that, unless the embargo is raised, rebellion in that part of the Union will take place speedily.”

  31

  Theo’s news is vital to Burr. His exile and false identity shield him from his American creditors and meanwhile afford him the opportunity to pursue his western plans, which remain inchoate and opportunistic but which, if successful, will win him the fame to foil his enemies and the fortune to satisfy his creditors. “If I had nothing but amusement in view, this would be my residence for at least six months,” he writes Samuel Swartout, an American merchant and fellow western enthusiast then in London, from Bentham’s Barrow Green. But he does have more in view. “The key of the drawers which contain my papers is herewith enclosed. Please to select out Gould’s Surveys of the Coast of Florida, four sheets. A map of North Carolina, four sheets. Map of Mexico, large sheet, manuscript. A map of certain roads, &c, on very thin paper. A map of the Lake Nicaragua, one sheet, manuscript. Two maps on common paper, and coarsely executed, very long and narrow; one of the river Chattahoochie, the other of a route from Washington City to Mobile. A map of part of New Orleans territory and

  Florida, manuscripts, thin paper. Let all these be rolled up in one roll, and on a round stick. The widest first, and so on. These, with anything else you may have to forward to me, must be put into the hands of Mrs. Stoker, at J. Bentham’s house, Queen Square Place, Westminster, by nine o’clock on Monday morning. This lady is Mr. Bentham’s housekeeper. Ask at 30 Craven Street for letters for me.”

  Burr explains to Swartout that Spanish Florida, which at this time stretches from the Atlantic to the Mississippi, is ripe for the picking. “It is a country very thinly peopled, there being not more than 2500 families in the whole extent of six hundred miles, from
St. Augustine to Baton Rouge. The American settlement (above the Spanish line) on the Mobile is about 400 families, and dependent wholly on the towns of Mobile and Pensacola, having no other course to market but down the Mobile. The Natchez settlement, just above the line, and bordering on the Mississippi, is flourishing and wealthy, and, if you can get access to it, will take all your merchandise, and supply as much cotton as you may be disposed to purchase. The persons whose names I have given you will put you in the way to accomplish everything that may be practicable, and will aid you in the execution. The two excellencies to whom you have letters are to be approached with caution. Colonel M. and Dr. W. will advise you. Perhaps it may be expedient, in the first instance, to sound them as a merchant, without disclosing yourself further. One cannot conjecture the sort of influence which the late political changes may have had on their minds. The country overflows with the productions you want.”

  What he proposes is not illegal under English law, but he has to remain cautious. Jefferson’s reach is long, as an associate reminds him: “The political and personal enemies of Colonel Burr might not look on the Atlantic as an obstacle to their persecution, but endeavour surreptitiously to obtain, even on this side the water, communications certainly confidential, probably in their nature important.”

  Theo, as ever, cheers him on. When he explains that complications have required him to drop Mexico from his planning, she registers disappointment and encouragement together. She has conceived of Mexico, a large country with great resources, as a proper field for his incomparable talents. “This certainly was inevitable,” she says of his decision, “but I cannot part with what has so long lain near my heart, and not feel some regret, some sorrow. No doubt there are many other roads to happiness, but this appeared so perfectly suitable to you, so complete a remuneration for all the past; it so entirely coincided with my wishes relative to you, that I cherished it as my comfort, even when illness scarcely allowed me any hope of witnessing its completion.” She knows, however, that he will discover other outlets for his gifts. “You will not remain idle.… Your mind needs no external impetus. I presume that when you last wrote to me, none of your plans could be matured; but, as soon as you have formed any determinations, I conjure you to inform me of them as soon as possible.… My mind is anxious, impatiently anxious in regard to your future destiny. Where you are going, what will occupy you, how this will terminate, employ me continually.… Tell me that you are engaged in some pursuit worthy of you. This is the subject which interests me most.”