Fallen Founder

by Nancy Isenberg

  Though the jury refused to indict him, Burr was not free to go. One of the judges, Thomas Rodney, father of Attorney General Caesar Rodney, insisted that he remain in the vicinity of the court. Rodney’s high-handed action put Burr in a dangerous predicament. Wilkinson’s henchmen were in the area, ready to nab the so-called “conspirator” and drag him back to New Orleans. Sizing up the situation, Burr determined he had only one choice: to flee. Yet as a lawyer—a very good lawyer—he drafted two letters in defense of his action, which he addressed (while in hiding) to Territorial Governor Robert Williams, who had just resumed his duties. In one letter, he complained of the judge’s “vindictive temper and unprincipled conduct” in ordering him not to leave town. And then he protested as “unworthy” the proclamation Williams had issued when Burr refused to show up again in court after having been acquitted. Williams had persisted in calling Burr a fugitive from justice, which he, of course, disputed.3

  Then Burr vanished. His whereabouts were completely unknown. No one who may have seen him over the next week was willing to expose him. But on February 18, federal land registrar Nicholas Perkins spotted him in the small village of Wakefield, in Alabama Territory, 200 miles from his earlier campsite along the Mississippi, and Burr’s fortunes changed dramatically.

  It was approximately midnight, and Perkins had been working late at the courthouse, when he heard the sound of horses on the road nearby. He went to the door, as a man on horseback passed at a brisk trot, followed a moment later by another rider who stopped to ask directions to “Major Hinson’s.” Knowing the difficulty in following this route at night, Perkins warned the man to stay at the tavern. But the rider refused his advice. These were “extraordinary men,” Perkins later claimed, riding at such a “late hour in a strange country,” and willing to travel on seven or eight miles along bad roads and over dangerous bridges when a comfortable tavern was just around the corner. Their odd behavior made him suspicious. Could they be robbers with a “bad design on Hinson or his property”? he wondered. Then another thought crossed his mind. Might the mysterious rider be Aaron Burr, making his escape through this remote country?4

  Perkins resolved to follow the men, and he persuaded the local sheriff to accompany him. They discovered the travelers at Hinson’s, their horses tied outside the house. The man he had conversed with greeted him again, while the other retreated to the kitchen to warm himself by the fire.5

  When Perkins finally got a good look at the second guest, he was shocked by his bizarre getup. He wore a slouching white hat with a broad brim, sported a long beard and a checkered handkerchief around his neck, and a great, baggy coat tied with a belt. Hanging from the belt was a tin cup and a butcher’s knife. The outfit did not fit the profile of the dapper Burr, known for his stylish dress and genteel manners. But something gave him away: “His eyes,” attested Perkins. Burr had glanced at Perkins, then quickly withdrew his gaze; yet the land registrar was convinced he had just identified the stranger. He later testified in court that he had heard “Mr. Burr’s eyes mentioned as being remarkably keen, and this glance from him strengthened his suspicions.”6

  Leaving the sheriff behind at Major Hinson’s, Perkins rode off to Fort Stoddert, arriving just before sunrise. There, he informed Lieutenant Edmund Gaines of his astonishing discovery, and Gaines agreed to lead a small detail of soldiers back to Hinson’s farm. As they approached the house, they came upon Burr, who was accompanied by the sheriff. Gaines asked the unknown rider directly if he was “Colonel Burr,” and Burr replied, making no attempt to conceal his identity. After a brief conversation, Gaines arrested him, and they proceeded together to the fort.7

  Though he had just met Burr hours before, the sheriff was aiding his escape. Major Hinson was harboring a fugitive, as well, yet none of Burr’s local supporters was to suffer for their actions. Indeed, for most Alabama settlers the notorious ex-vice president was a hero for his daring filibuster rather than a villain. But to the soldier Gaines, a Virginian, Burr was a wanted man.8

  Gaines immediately wrote to both Wilkinson and Governor Williams of Mississippi that Burr was in his custody, “in one of our best rooms with a Sentinel at the door.” But when a Spanish officer suddenly appeared at the fort, wishing to see Burr, the lieutenant became nervous, worrying that the Spaniard was part of a plot to rescue his prisoner. Burr, however, took his incarceration in stride, requesting nothing more than a few bottles of wine from his Spanish visitor. Gaines then began to make arrangements for Perkins and six other men to escort Burr to the nation’s capital. This ad hoc civilian guard pledged its loyalty to the president, and its commitment to Burr’s safe conduct. The members of the escort made a practical decision, signing a contract to split the $2,000 reward equally.9

  Burr began his long trek north and east on March 5. The trip was hazardous and physically demanding for all involved: The party crossed swollen streams and rivers and traversed the rough terrain of the Alabama and Georgia backcountry. Perkins had few concerns until they neared South Carolina, home of the Alstons, who were a powerful clan in the state. If Burr had any hope of escape, it would be here, with the help of his son-in-law.10

  As the party reached Chester, South Carolina, Burr jumped from his horse. He called out to a group of men, urging them to fetch a local magistrate. He begged them for protection, claiming that he was being held without proper authority. Perkins, a large man, dismounted and forcefully threw Burr back into the saddle. Then the party quickly rode out of town. Understandably less trusting of his famous charge, Perkins hired a gig to convey Burr the rest of the way to Virginia.11

  On March 25, they arrived in Fredericksburg, at which point Perkins learned that plans had changed. Now Richmond was their destination, and so they backtracked, arriving in the state capital the following day. Gossip about Burr’s appearance immediately began to circulate. Virginia congressman John Randolph, who would assume a lead role as foreman of Burr’s grand jury, reported that Burr had been spotted en route, still dressed in the odd attire he was captured in, which was described by Randolph as a “shabby suit of homespun, with an old white hat flapped over his face.” Jefferson’s friends sent the chief executive similar reports, clearly amused by the transformation.12

  People back east were simply amazed by Burr’s capture, finding the story so “strikingly singular,” as one newspaper put it, as to surpass “the page of romance.” The haughty, elegant Burr, once considered a dandified member of the New York ton, was now reduced to an uncouth bumpkin, with “old Virginia leggins” and a tin cup hanging from his belt. In Richmond’s Republican newspaper, a debate ensued over his dress; some refused to accept the story that Burr had worn a disguise in order to more easily slip across the border into Spanish Florida. Once again the talk of town, Burr delighted his critics, who could now revel in his humiliation.13

  “MR. JEFFERSON HAS BEEN TOO HASTY”

  The Burr trial featured some of the greatest oratory of the age amid heated exchanges, exhibitions of wit, and incisive demonstrations of legal logic. Though Burr’s capture would receive numerous romantic retellings, it was his treason trial that gained the most attention, even acclaim, as one of the great criminal trials in American history. Spectators flocked to Richmond’s House of Delegates from places near and distant, jamming the courtroom to witness the prosecution of the former vice president for the high crime of treason. The state summoned over 140 witnesses, though only a few actually took the stand and testified. This was a political prosecution, and so it naturally enflamed public opinion, and consumed more newsprint than any other American court proceeding ever had. Burr’s trial was never simply about the law. It was political theater, an elaborate performance designed to mold public opinion as much as to defend public reputations.

  On March 30, 1807, at the Eagle Tavern in Richmond, Burr faced his initial examination before Supreme Court Chief Justice John Marshall. But even before the defendant appeared before the judge, political conditio
ns had already determined the direction the proceedings would take. The arguments made in Richmond were, by and large, in response to a series of events that took shape in the months immediately following Jefferson’s November 27, 1806, proclamation. During those crucial months from December to March, the furor over Burr’s so-called “conspiracy” reached its height, and a number of related events influenced the prosecution and defense equally.

  First, to make its case, the prosecution needed evidence of an “overt act” of war—necessary to prove treason. The event the prosecution chose in this effort was the assembly of a small but indeterminate number of men on Blennerhassett Island, in the days leading up to Harman’s escape on December 10. The prosecution wished to give the impression that warlike conditions existed there.14

  Accounts in the newspapers, and the message from the governor of Ohio to the general assembly, underscored the perception that Blennerhassett Island (and the flotilla assembling) was heavily armed. There were reports of French mercenaries transporting boxes of muskets down the Ohio River, and of large numbers of men, as many as 20,000, gathering to feed this astonishing enterprise. The French connection was meant to imply that Burr and his henchmen were consorting with foreigners, who were not just willing but hell-bent on destroying the union—for the right price. Blennerhassett, too, was attacked as an Irish royalist, whose loyalty to republican principles was suspect. Rumors circulated that he had authored several anonymous essays calling for the separation of the western states from the union.15

  The obvious (but generally overlooked) question is this: What had happened in Ohio? A peculiar shift in language was evident in the newspapers and emerged, as well, in the letters of men of local prominence; it was, as a loyal militia captain wrote to Secretary of War Dearborn, as if Ohio was making preparations to fight “foreign troops.” In the minds of those charged with Ohio’s defense, Burr’s expedition had been transformed into a grand imaginary army, indistinguishable from a foreign enemy. It was the militaristic context—the illusion of a pending war—that made Blennerhassett Island the centerpiece of the prosecution’s case.16

  On January 18, 1807, one observer captured the tension in Ohio in a letter he sent to his father, in Virginia: “The minds of the people in general seem to be very much agitated at the time about a civil war that appears to be taking place among us.” He explained that the president’s proclamation had contributed to this state of affairs, as it was “very copious and unlimited in authorizing and requesting all Governors of states, military officers down to private citizens to do their best endeavors to bring condign punishment to all persons contriving or plotting a war against his Catholic Majesty [the king of Spain].” The writer placed Burr at the crux of all these machinations, and wished for the most extreme punishment for the ex-vice president: “I entertain a pleasing hope that I shall soon hear that Mr. Burr is summoned to the bar of Almighty God by the message of a rifle ball through his blood-thirsty heart to give an account of Hamilton’s and other innocent blood he is seeking to shed.”17

  These trumped-up threats in Ohio made it possible for those inclined to call Burr a “villain, rascal, thief and highway robber” to see him as a desperate man who could be hunted down and shot like a common criminal. But more important for the coming prosecution, it made Burr the commander of an invading army. His unusual treatment in Mississippi confirmed this view: Burr was not simply arrested there but taken into custody after—the language is important—an “armistice” was reached. Mississippi officials accepted the terms of his surrender as if they had been negotiating with the head of a foreign force.18

  The flaw in the evidence from Blennerhassett Island, though, was enormous: Burr was not there! At the time the Wood County (Virginia) militia descended on the island, Burr was still in Kentucky, hundreds of miles from the scene of the supposed crime.

  If the prosecution scripted its narrative of treason through stories told about Burr’s “war” emanating from Blennerhassett Island, the defense followed Burr’s lead by drawing on his appearance before the Mississippi grand jury in early February. The dismissal of all charges there (after a rousing defense) resulted because jurors found General Wilkinson’s actions in New Orleans to be criminal—not Burr’s. In early March, Republican newspapers in the East printed Burr’s highly critical letter of Wilkinson, in which he called the general a notorious pensioner of the Spanish—the letter Burr sent to Acting Governor of Mississippi Cowles Mead.19

  At the same time, other prominent men published their rebukes of the devious general. Edward Livingston exposed Wilkinson’s flagrant abuse of the courts and his suspension of habeas corpus in New Orleans, and Ohio senator John Smith printed his denial of ever having heard Burr speak of treason. The most damning attack came from former Kentucky senator John Adair, who called Wilkinson a “petty tyrant” and condemned his abuse of the law as a far more egregious attack on democracy than President Adams’s infamous Sedition Acts. As one of the men whom Wilkinson had placed under military arrest and sent east for trial, Adair was a forceful critic; his words carried greater weight after the charges against him were dismissed with the determination that there was no evidence against him. Immediately upon his discharge, Adair demanded that the attorney general conduct a full investigation into his false arrest.20

  The resentment Adair drummed up found a particularly receptive audience in Washington. The Senate had just passed a bill suspending habeas corpus for a period of three months, only to have its tactic rejected in the House by a vote of 113 to 19. The bill had been conceived in an effort to keep two of Burr’s allies—two “conspirators,” Samuel Swartwout and Dr. Erich Bollmann—behind bars. Like Adair, they had been sent east by Wilkinson to stand trial, and were being held in a marine barracks, under heavy guard, though no evidence had been presented before a judge.21

  Their February 1807 hearing was a two-week sideshow, a buildup to Burr’s treason trial. Lawyers for the two prisoners requested a writ of habeas corpus and their release from custody, as the two sides debated whether the evidence was adequate to have them held. Chief Justice Marshall presided, laying out his definition of treason. According to the U.S. Constitution, he said, an overt act was required. To hold the men over for trial, it would have to be proven that they had participated in a warlike assembly of men for treasonable purposes. The evidence failed to show this, and so Swartwout and Bollmann were released. But at the same time, Marshall also expanded the meaning of treason, to permit room to consider “constructive treason,” as derived from British common law. He said that “all those who perform any part, however minute, or however removed from the scene of action,” could be considered traitors. Thus, the chief justice supplied the foundation for both defense and prosecution cases: The state would argue in favor of constructive treason (insofar as Burr was not on Blennerhassett Island), while the defense was left to contend that no evidence existed to suggest that Burr had committed an overt act of treason on Blennerhassett Island or anywhere else.22

  On February 18, amid the debate over habeas corpus in Congress, Virginian John Randolph took the opportunity to attack Wilkinson. He claimed that the suspension of habeas corpus would have given the general unlimited power—so much power that he could easily have shot Burr or anyone else accused of treason, and been immune from any legal consequences. Randolph’s example was not arbitrarily chosen. He probably had heard that Samuel Swartwout was nearly shot by Wilkinson’s men when they were bringing him east for trial. “Dead men tell no tales,” the colorful congressman warned his colleagues ominously. Because he was rumored to be deeply implicated in Burr’s project, Wilkinson had every reason to silence Burr. According to Randolph (who was at that moment the most influential Republican in Congress), he was a renegade general and a potent symbol of military despotism.23

  This growing sense of public outrage set the stage for Burr’s defense. It was obvious that the trial would center on the credibility of two men: Wilkinson and Burr
. Wilkinson had made many enemies. And though Jefferson stood by his general, many others saw Wilkinson as a bigger scoundrel and a more serious threat to the republic than the former vice president.

  The final factor was the power of the press. The papers circulated unsubstantiated rumors and treated them as facts (indeed, the more outlandish the claim, the more dramatically it was asserted as irrefutable truth), and even the president of the United States was influenced by them. General William Eaton, a star witness for the prosecution, published his account of Burr’s plot in a Boston newspaper, and it was widely reprinted across the country. His tale became a kind of talisman for those declaring Burr’s guilt. Eaton also assumed a prominent role in the effort to commit Swartwout and Bollman for trial on treason charges. His deposition at their hearing replayed the story he gave to the newspapers, adding detail and spoken under oath. Remarkably, even Burr’s much-devoted political lieutenant Matthew Livingston Davis proclaimed in a letter that “if any confidence can be placed in the testimony of Eaton (and I am disposed to believe the greater part of it) Burr had acted in the most weak & childish manner, a great man ever did.” Clearly, Burr had ground to make up in winning over the public.24

  But the newspapers assumed an even more significant role in Jefferson’s thinking. He had bought into the Eaton story, as he bought into Wilkinson’s strained interpretation of events. Once the president’s January 22 message to Congress was published (in which he stated that Burr was guilty “beyond question”), he was entirely committed. His message was accompanied in the papers by a grossly embellished version of the cipher letter, supposedly drafted by Burr. The same text was printed up as a broadside, entitled “Message of the President of the United States, containing a Development of the Conspiracy.” Jefferson was doing his utmost to shape public opinion. Lest there be any doubt, his public denunciation seriously undermined Burr’s ability to receive a fair trial. The retired John Adams observed that there was probably a “lying spirit” at work against Burr, and that “Mr. Jefferson has been too hasty in his message in which he has denounced him by name and pronounced him guilty.” Adams felt the judicial system should decide Burr’s fate, and “if his guilt is as clear as the noonday sun, the first magistrate ought not to have pronounced it so before a jury had tried him.”25