Though New York dropped the murder charges, Burr was nevertheless indicted for violating the dueling law. Next, New Jersey called its own grand jury, and indicted him for murder. But dueling was legal in New Jersey! (The court’s action is explained by the fact that a party of Federalists was behind the proceedings.) Burr once again exercised his wit, in writing to his daughter that the two states were now battling to determine “which shall have the honour of hanging the vice-president.”116
The general reaction to the duel was not uniform. In the East, Federalist politicians thought to use Hamilton’s stunning death as a means to generate “excitement,” or “ferment,” as Burr looked on it, and to recover lost ground. William Coleman described Burr not only as a cold and selfish assassin but an “isolated man,” devoid of family and national affections. Elevating Hamilton into a martyr and devoted family man, Federalists hoped to regain their claim to moral authority. The Clintons alike were glad to witness Burr’s self-destruction as a political force in New York State, especially because there was a cluster of New Yorkers who did not find moral culpability in Burr’s actions. In the South and West, Burr would receive widespread credit for having brought down his man in a fair and honorable fight.117
His plans were to head south. He had been invited by Pierce Butler to lodge at his plantation on St. Simons, a small island located off the coast of Georgia. Butler was a former Federalist, turned Republican, who recognized the duel as just another affair of honor. For his long trip, Burr was joined by his slave Peter Yates and John Swartwout’s younger brother Samuel. The young man was to be his “fellow traveler,” as Burr denoted him, over the next two months.118
During his southern sojourn, Burr already had in mind to “visit the Floridas for five or six weeks.” He sent Theodosia (nowadays with her husband on Alston’s rice plantation, The Oaks) detailed letters of his travels, including animated observations about the people he met, descriptions of the geography he traversed, local habits, and other curiosities; he was acting as if he were an anthropologist leisurely studying a strange new land. So she might “better understand” what he wrote to her, he told his daughter to obtain a copy of William Bartram’s celebrated Travels; the famed eighteenth-century natural historian had journeyed through Florida and Georgia in 1772.119
Although Burr was a fugitive, and was occasionally forced to conceal his identity (he told Theodosia to address her letters to “Mr. R. King”), he moved on almost as if nothing had changed. But clearly, a transformation was in progress. Figuring the world of national politics offered no place for Hamilton’s killer, he had resolved to channel his energies elsewhere. The Floridas and the Louisiana Territory both captured his attention. As he moved easily through the South, he conjured up an expedition—a new challenge drawing on his military expertise, his mapmaking skill, and an old passion to explore. The ruined vice president would be heard from again.120
Aaron Burr in 1802 by John Vanderlyn; General James Wilkinson in 1796 by Charles Willson Peale
Chapter Eight
LITTLE QUID EMPEROR
It is discovered beyond the possibility of doubt, that there has been a dangerous and daring conspiracy afoot . . . carried on by those, and those exclusively, who style themselves “the union of honest men.” . . . Aaron Burr, the leader of the lawless conspirators, is notoriously known to be the father of the quid faction.
—Lancaster [Pa.] Intelligencer, Dec. 10, 1806
Once he had killed Hamilton, Burr could do nothing right. At least, that is how the popular imagination today construes the events of 1805–06. Whether he is understood to have planned to enter Mexico with a private army, amid a general U.S. military invasion, or to have “conspired” to detach the restless trans-Allegheny West from the Atlantic-lying Union, his activities after Weehawken have been presented as a psychological mystery the general outlines of which are (or appear) unmistakable. It is only Burr’s mind-set—the full nature of his ambition—that has been called into question.
This pivotal episode in the life of the nation has long been presented as a whodunit in which the “who” is known and only the “dunit” or deed, lies in obscurity. To begin with, by labeling Burr’s western dealings a “conspiracy,” commentators have reached a consensus that there was a single unified project, and that it was headed by one person: Aaron Burr. Modern scholars have done as the journalists of 1805–06 did: they have gathered up scraps of testimony, relied on unsubstantiated rumors, and retold questionable stories, so as to construct a seamless tale. The record must be set straight—not to absolve Burr, but to get at the truth.
What if there was not a carefully laid plot encompassing grandiose and treasonous designs? What if the “Burr Conspiracy” was created by the newspapers, and then inflated by a primary actor in the drama so as to protect himself from possible retribution from Washington? What if the “conspiracy” was created for Burr, that is, to fit Burr into? This is not to say that he was an innocent. He was indisputably interested in promoting cross-border filibustering activities to topple Spain’s New World governments. But that is not the same as being a traitor.
For those convinced of his treasonous intentions, then and now, this is what he is supposed to have done: With the help of England and Spain, and an army of his own making, he aimed to overthrow the states and territories west of the Alleghenies, and to follow up the domestic victory with a triumphant invasion of Mexico and possibly Spanish Florida. And as if that were not enough, some came to believe that he contemplated marching on Washington to unseat Jefferson.
“ONE OF THE BEST PRESIDING OFFICERS I EVER WITNESSED”
In the winter of 1804–05, before he headed west, Aaron Burr may have been politically wounded but he was still officially vice president. In Washington, he faced his colleagues with the poise he was known for, and on occasion dined peaceably with President Jefferson. With Burr’s power in New York much diminished, and the way ahead for the Virginia dynasty of presidents looking clearer, Jefferson was extremely cordial to the man who slew his longtime arch nemesis Hamilton.
The lame duck vice president had returned to Washington to preside over the Senate at impeachment proceedings recently initiated against Supreme Court Justice Samuel Chase, alleged by Jefferson to have made seditious remarks from the bench. Burr’s reception at the Capitol was mixed. Federalists close to Hamilton shunned him, of course. But many Republicans welcomed him with open arms. Jefferson invited Burr to several dinner parties, and Madison and Gallatin frequently called at his boardinghouse. Of the Republican leadership, it was Gallatin who spent the most time with Burr, and who clearly continued to treat him as a friend. The treasury secretary was appalled by the duel, not because he considered his friend a murderer but because he knew it spelled “catastrophe” for Burr’s career. Gallatin had confided to his wife’s brother that he thought Burr blind to the fact that his enemies would use the event to produce “an artificial sensation . . . to deify Hamilton and treat Burr as a murderer.” How could someone so smart and capable be at the same time so unsuspecting? Gallatin wondered. How could Burr doubt the resolve of his enemies in plotting his political downfall?1
Slander had already made Burr notorious, and so his return to Washington piqued the curiosity of Federalist gadfly William Plumer. The New Englander, who could barely contain his fury over Hamilton’s death, watched Burr’s every move. He found it remarkable that Republicans of both houses were exceedingly “attentive” to Burr, as Plumer noted in his private journal on November 26. If they had the choice to make over—between George Clinton and Aaron Burr as the number two executive—it would be no contest. Burr would be the man. Or so it seemed to him at that moment. Returning to reality in his journal entry nine days later, the Federalist was convinced that after all that had occurred, Burr would never “rise again.” And yet, Plumer concluded, “surely he is a very extraordinary man, & is an exception to all rules.”2
An exception to all rules.
Burr’s political enemies routinely drew this kind of portrait of him: he possessed magic; he retained his appeal, even after ruining his career. It was not very different from what Cheetham had written: Burr was a “proteus.” Even his supporters could not help but imagine him “incomparable.” His audacity amazed.
Jefferson had sparked the Chase impeachment. On May 13, 1803, he wrote to Congressman Joseph H. Nicholson, complaining about the judge’s “extraordinary charge” from the bench. In it, Chase had railed against the visionary Jefferson, and the Declaration of Independence, and accused the new administration of provoking lawlessness and civil rebellion. Jefferson had heard about the judge’s harangue and had by now developed a strong distaste for Chase; he also was determined to weaken the judiciary, because he considered it a bastion of the Federalist opposition. Why did he complain to Nicholson? The Maryland congressman had already carried out Jefferson’s wishes by leading an impeachment of Federalist John Pickering, a federal district judge of New Hampshire, who had been convicted on March 12, 1803, and removed from office.3
The Chase trial was a political trial. It was a direct attempt at using impeachment to remove a political enemy. Jefferson said as much to Nicholson, accusing Chase of making a “seditious and official attack on the principles of our Constitution, and on the proceedings of [the] State.” Jefferson felt quite comfortable with what he called “selected” prosecutions for sedition. Just a month before his aggressive letter to Nicholson, he wrote to Governor Thomas McKean of Pennsylvania, endorsing the state prosecution of Federalist editor Joseph Dennie. Jefferson did not say that a “general prosecution” was in order, for that “would look like persecution”; but “a selected one” would have a “wholesome effect.” Jefferson was repeating the sins of his Federalist foes, who had vindictively exploited the 1798 Sedition Act in order to silence their (Jeffersonian) political opposition.4
The Chase case fits a pattern. Republicans were fashioning a doctrine of impeachment that relied on the same English precedent of “bad tendency” that Federalists had used to prosecute Republicans for seditious libel and treason in the 1790s. According to this doctrine, any tendency for political excess could be interpreted as threatening to subvert republican institutions. And, as we shall see, the same impulse was shortly to influence the government’s prosecution of Aaron Burr for treason. Jefferson urged on Chase’s impeachment, without dirtying his own hands, telling Nicholson that “it is better that I should not interfere.” His directive to the Maryland congressman was nevertheless understood. Attacking Jefferson was meant to be viewed as (and prosecuted as) an attack on the republic itself.5
Representative John Randolph of Roanoke—not Joseph Nicholson—took the lead in pursuing the impeachment of Justice Chase. In January 1804, he initiated an inquiry into the judge’s conduct. The House overwhelmingly voted by 73 to 32 to impeach Chase in early March. And on March 26, one day before Congress went into recess, Randolph skillfully guided the House committee under his direction in presenting several articles of impeachment.6
Randolph was not close to his fellow Virginian Thomas Jefferson, but—as he would do many times over during his colorful career—he made the Chase impeachment his own cause. Randolph stood out in the House for a number of reasons: he was known as eccentric and combative, and his sanity was occasionally called into question. In 1804, at thirty-one, he cut an odd figure; standing just over six feet tall, gangly and unwieldy, he had legs that were long and spindly, and his shoulders were abnormally narrow. Randolph was a mesmerizing orator, though his voice was considered “shrill,” similar to a woman’s. Many commented on his beardless face, one of the several symptoms of a genetic condition known today as Klinefelter’s syndrome: Randolph apparently had two X and one Y chromosomes.7
The talented, if peculiar, Republican would be taking on Justice Chase, a man with an equally unsettling and imposing demeanor. Chase’s white locks ranged down to his shoulders. He was nicknamed “Bacon face” because of a reddish and fleshy visage. He was also compared to the British wit Samuel Johnson, for at sixty-four, he was large, portly, and intimidating. Neither Randolph nor Chase would take kindly to defeat. Both men’s antics (and the justice’s impressive defense team) promised to make the trial the most spectacular event in Washington that season.8
Aaron Burr assumed a critical role in the Chase trial. As presiding officer in the Senate, he was responsible for regulating the proceedings. He alone had to set the tone of the trial. The court first convened on January 2, 1805, and Chase was allowed to respond to the eight articles of impeachment already approved by the House. He was provided with a chair, but William Plumer angrily complained that he should have had a table as well, which Burr refused to provide. Burr had no intention of coddling the judge. He unnerved Chase by interrupting when he saw fit, and Chase was reported later to have been on the verge of tears. Plumer and others may have felt that Burr’s behavior amounted to harassment, but his purpose was abundantly clear: he wanted to shame the judge. He had anointed himself a moral enforcer, a part he had once before played so well, when he commanded troops in the Revolutionary War.9
Why did Burr do this? Federalists at the time simply thought he was trying to placate Jefferson. But that is not quite correct. A distinct principle directed his behavior: The articles of impeachment brought against Chase had highlighted the justice’s greatest flaw—he was a bully. For Burr, this was Chase’s real crime. He had made it a habit to hector and badger defense attorneys; he made arbitrary and impulsive rulings; and he took punitive action against grand juries that refused to do his bidding. Over and over, he abused his authority as a judge. In fact, in Article Four of the eight articles, Justice Chase was rebuked for his “repeated and vexatious interruptions” of defense counsel. So Burr had decided—and had every right as president of the Senate—to teach the bully a lesson.10
He transformed the Senate chamber into a High Court of Impeachment. After granting the judge a month’s delay to prepare his defense, Burr reconvened the court on February 4, and those in attendance were amazed by what they saw. Federalist senator Uriah Tracy claimed that the chamber had been “fitted up in a stile beyond anything which has ever appeared in the Country.” The president’s raised chair (which Burr occupied) assumed center stage; on the right was a box for the managers (Randolph and his team), and to the left, a similar box for Chase and his defense counsel. Both boxes were covered in green cloth. Benches draped in crimson, placed on each side of the president’s chair, were provided for the senators. Additional seats were added to accommodate the hundreds of spectators who came to watch the grand performance. Other boxes were occupied by visiting dignitaries, and a special gallery was built for the “exclusive accommodation of the ladies,” as one reporter described it.11
The man who shot Alexander Hamilton was in charge of a great national tribunal. This may seem strange to us, but Burr was not relieved of office for having engaged in a duel. During the month-long delay, he had gone to Philadelphia to meet with Governor Bloomfield of New Jersey, conferring on his outstanding indictment for murder in that state. Meanwhile, a group of Republican legislators in Washington signed a petition entreating the governor to intervene on the vice president’s behalf. Federalist newspapers, eager to embarrass the administration, savored the irony in observing a man under indictment for murder standing in judgment of a Supreme Court justice.12
But Burr refused to be distracted—or deterred. He imposed his will, asking for decorum whenever a disruptive senator strutted about the chamber in the middle of testimony. He even bade one of the defense attorneys to remove his winter coat. And he seemed particularly incensed with those legislators who sat snacking on apples and cake. Outraged, Senator Plumer called the vice president a “pedagogue” for scolding his peers as though they were a pack of unruly schoolboys. “Really, Master Burr,” Plumer sniped in his journal, “you need a ferule, or birch, to enforce your lectures on polite behavior!”13
; Plumer was partially right, but he missed the larger point. Burr demanded a high degree of decorum for good reason: etiquette, combined with the presence of ladies in the galleries, would curb partisan excess. He was striving for civility, so that this High Court of Impeachment might achieve something of real value: impartiality. If this was his court, Burr wanted reason to rule in it. Given the combustible temperament of his colleagues, he knew that would only happen if he enforced an atmosphere of politeness.
For nearly ten days, Randolph and his team of managers brought forward a long line of witnesses, all of whom recounted episodes of Chase’s heavy-handed behavior in his courtroom. Though the defense supplied witnesses as well, Chase himself only made an appearance on the first day. His counsel urged him to sit out the Senate trial, worried that he might let loose with some damaging outburst.14
Burr’s importance grew as the trial continued. Following the testimony attentively, he asked witnesses to clarify their statements, and made certain the proceedings were not bogged down. If a point of order was raised, he solicited the senators for their opinion, gradually deepening their sense of his impartiality. An observer remarked: “Burr has displayed much ability, and since the first day I have seen nothing of partiality.” A Massachusetts Federalist, Samuel Taggart, who was also a clergyman, offered poignant praise: “I could almost forgive Burr for any less crime than the blood of Hamilton for his decision, dignity, firmness and impartiality with which he presides in this tyral [sic].” And then he underscored: “He is undoubtedly one of the best presiding officers I ever witnessed.”15
Burr watched as the lawyers for Justice Chase unraveled the arguments and exposed the weaknesses inherent in Randolph’s case. This was not exceptionally difficult. The managers had proven that Chase was obnoxious, but they had failed to demonstrate that he had committed anything approaching a high crime or misdemeanor.
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