Fallen Founder

by Nancy Isenberg

  But Jefferson seemed to believe that Burr had been tried in the court of public opinion, and that it was public opinion, above all, which had crushed the conspiracy. He wrote to Governor Edwin Tiffin of Ohio on February 2 that “the hand of the people has given the mortal blow to the conspiracy which, in other countries, would have called for an appeal to armies.” A day later, he reassured Wilkinson that the general’s abuses of habeas corpus and illegal arrests “will be supported by the public opinion.”26

  Jefferson’s faith in public opinion only increased as Burr’s hearing and his two trials proceeded. To Virginia congressman William Branch Giles, the president predicted that the testimony of Eaton and Wilkinson “will satisfy the world, if not the judges, of Burr’s guilt.” In more explicit terms, he told Giles that “letters and facts published in the local newspapers” and the “universal belief or rumor of his guilt” justified that Burr be committed for treason; more than that, there was not “a candid man in the United States” who doubted that Burr had committed an overt act of treason. In writing to George Hay, who as the U.S. attorney for the Virginia District led Burr’s prosecution, he expressed a similar perspective. When his concern mounted that Burr might not be convicted, Jefferson urged Hay to present testimony before the legislature, and “through them the public,” as though the case could be retried before the people. Was this Jefferson blowing off steam, trying to make a wish come true? Or did he really see the law differently than the other trained attorneys involved in the case? At this point, he was so certain of Burr’s guilt in the court of public opinion that he told Hay: “before an impartial jury, Burr’s conduct would convict himself, were not one word of testimony to be offered against him.”27

  It seems clear that in the president’s construction of democracy, there were times when the rights of the individual were to be subordinated to the will of the majority. Could he possibly mean that public opinion should trump the courts, even when, as in this case, that opinion was mixed with rumor, hearsay, and a “lying spirit,” which, as John Adams so trenchantly observed, was part and parcel of democracy? It seems implausible. But that is what Jefferson meant: All the evidence contained in his correspondence during these months leads one to conclude that the president wished to submit Burr’s fate to the will of the people, whether or not it was just to do so.

  Jefferson betrayed his feelings in his last private interview with Burr, in 1806. At that time, he told Burr he had lost the favor of the people, to which Burr responded, discerningly, that this might be true only if one relied on the newspapers. But Jefferson did rely on the newspapers—that is, on certain Republican papers—when it suited him. (He called the opposition newspapers “polluted vehicles” of information.) In accepting select newspaper stories about Burr, he was unwilling to admit that he might have confused the people’s will with his own.28

  “ABOUNDING IN CRUDITIES AND ABSURDITIES”

  On March 30, Burr appeared before Chief Justice John Marshall for an initial examination that would last for three days. Court was held in a private room at the Eagle Tavern. George Hay and Attorney General Caesar Rodney represented the government. Burr, acting as his own counsel, was joined by two prominent Virginia attorneys: Edmund Randolph, who had served as both attorney general and secretary of state under President Washington; and John Wickham, perhaps the most brilliant lawyer of the Richmond bar. Wickham was seven years younger than Burr, born in New York, and this might explain in part how he had found sympathy for his client. Educated in France as well as at the College of William and Mary, he was admired for his polished manners, his wit, and his quickness of legal argument. Wickham presented himself well, as would his client. Two prominent Federalists had loaned Burr $1,000 for new clothes, so that he could be tastefully attired in black silk for the duration of his trials. As Wickham and Burr were the principal architects of Burr’s defense, it could not have hurt that the two of them came to court each day in sartorial splendor.29

  The first day of the examination was brief. Nicholas Perkins gave an account of Burr’s capture and his “attempted escape” in South Carolina. District Attorney Hay motioned that Burr be committed on charges of treason and high misdemeanor. Because both sides felt that the public should hear any arguments before the court, Chief Justice Marshall acceded to another motion that court be adjourned and moved from Eagle Tavern to the courthouse for the following day. Burr was released on $5,000 bail, and was free to move around town. When the trial resumed, the courtroom was so packed with curious spectators that Marshall agreed to move the proceedings to the even larger House of Delegates.30

  Hay opened for the state. He contended that Burr had violated federal law by organizing an expedition against Spain during peacetime; yet that misdemeanor paled in comparison to the charge of treason. The state’s entire case rested on three pieces of evidence, the same documents that had been presented in the Swartwout and Bollman hearing: the infamous cipher letter supposedly written by Burr to Wilkinson; an affidavit by Wilkinson; and William Eaton’s deposition.31

  From the beginning, Hay relied on Eaton’s narrative of intrigue to convince the court of Burr’s guilt. Eaton’s account centered on a series of conversations he had had with Burr during the winter of 1805–06, when the two men were living at the same boardinghouse in Washington. During those months, Burr talked about his planned expedition to Mexico. Soon, however, Eaton began to suspect that something more treacherous was being considered, for the colonel’s actions seemed, he said, “enveloped in mystery.” The general attempted to draw him out—somehow getting Burr to reveal his secret. And what he learned was incredible: Burr had every intention of revolutionizing the western country, separating it from the union, and “establishing a monarchy there, of which he was to be the sovereign, New Orleans to be his capital.” The ex-vice president claimed to have inexhaustible resources, willing recruits numbering 10,000 men or more, and assurances that the army would join him. General Wilkinson would be his second-in-command.32

  But that was not all. Eaton declared that Burr’s ambition was not limited to “a deep laid plot of treason in the west.” Burr contemplated overthrowing the present government, which he described as weak and impotent. If he could secure an alliance with the naval commanders, “he would turn congress neck and heels out of doors, assassinate the president, seize on the treasury and the navy, and declare himself the protector of an energetic government.”33

  Overwhelmed by this discovery, Eaton decided he could only stop Burr by getting him out of the country. He then approached the president, urging him to give the former vice president some post in London or Cadiz. Reward a traitor? This may seem odd, but Eaton believed that Burr’s sense of honor would contain his ambition and ensure his fidelity. Jefferson flatly refused to consider the suggestion, which prompted Eaton to lay open Burr’s darker plot to the chief executive. But even this was to no avail: Jefferson felt Burr had little hope of succeeding in the West, because the unwavering loyalty of citizens would foil him. As a final gesture, Eaton let Burr know his true feeling, when he delivered a public toast: “The United States—Palsy to the brain that should plot to dismember, and leprosy to the hand that will not draw to defend our union!” Eaton felt he had behaved honorably, and assumed he would receive the gratitude of his countrymen.34

  But Wickham observed that Eaton’s story sounded “strange.” The real question for us, too, is why he would concoct such an outrageous tale. Eaton craved public acclaim and public glory. Senator William Plumer of New Hampshire ranked Eaton, along with Wilkinson, as the vainest two men he had ever met. Even the American Citizen (a paper with no interest in protecting Burr) noted Eaton’s “weakness and vanity” when it published his questionable revelations about Burr.35

  Eaton was an army careerist. Thin-skinned and unguarded, he had earlier found himself mired in a court-martial when a fellow officer reported rumors of his misconduct. He left the army at that point, and then used his connections
to get an appointment as U.S. consul at Tunis. While there, in 1804, he organized a mongrel filibuster army of Greeks, Italians, and Arabs, which he led 600 miles across the Libyan Desert to capture the city of Derna. Eaton’s mission had been to restore the fallen Pasha to his throne, after having been driven into exile by his usurping brother. Upon his return to United States, Eaton met Burr while he was trying to collect money from the government for his military escapades. For his daring, Congress bestowed on him the honorary title of general. The “Hero of Derne” relished the limelight.36

  Eaton saw himself (much as Wilkinson saw himself) as the savior of the nation. In two letters he wrote to his patron, Senator Stephen Bradley of Vermont, in 1808, discussing whether he should take a commission in the army, Eaton, self-styled dragon slayer, fantasized meeting Burr on the field of glory. If he could not kill Burr in a fair fight, he wanted to earn the public’s praise for bringing down the conspiracy. Soon the people would see that he alone had prevented a “civil war,” he carped to Bradley. He had stopped Burr’s conspiracy from growing into a full-scale revolution.37

  For men like Eaton, reputation was everything. The larger and more threatening Burr’s plot appeared to be, the more important Eaton became. But the honorary general probably suffered from imposter syndrome, never quite certain that his accomplishments would be taken seriously by the nation’s most prominent men. His biographer readily admits that Eaton had a way of blurring fact and fantasy. He was restless, ambitious, and before he made it to Richmond in 1807, known for his drunken bouts and large gambling debts. There is little doubt that Burr discussed his expedition with Eaton during the winter of 1805–06, and he most likely tried to recruit him; but that does not alter the evidence pointing to the falsity of Eaton’s story. As William Plumer wrote in his journal, it seemed unlikely that Burr, a man known for his discretion would open himself up so foolishly to a man of Eaton’s cast.38

  There is another possibility. Burr might have criticized the president in his conversations with Eaton, or Eaton might have overheard a discussion between Burr and Dayton about the great tale they planned to tell the marqués de Yrujo. Given Eaton’s drinking habits, Burr assumed that few people would trust anything the general might say. But it is more likely that Burr said nothing serious to Eaton, and instead Eaton, who heard rumors about Burr, and had listened to Burr disparage Jefferson’s administration, created a narrative that placed him at the center of the scenario as Burr’s trusted confidant. His vanity and blurred memory best explains the fanciful tale told by the “Hero of Derne.”

  Hay knew little about the general personally, but he did see that Eaton’s story blackened Burr’s reputation. In his opening remarks, he took Eaton’s narrative and embellished it. He made Burr’s actions sound deeply personal, insisting that Burr’s motive was revenge: He hated Jefferson for withdrawing his confidence, and it was this hatred that had inspired him to “establish a monarchy within the territory of the United States.” He was cold and ruthless, caring not to temper the “incalculable evils” of his scheme, especially the “bloodshed and desolation which a civil war never fails to produce!” And if that was not enough, Burr had abandoned the “pure and republican principles” he had vowed to defend as “the second officer of the nation.” Catalinian conspirator, un-American monarchist, ambitious megalomaniac, bloodthirsty revolutionary, and Judas-like betrayer—this was the government’s picture of Aaron Burr. Jefferson’s handpicked prosecutor dredged up every horrifying allusion he could imagine—or could borrow from the blotted prose of the papers.39

  Hay referred to Wilkinson’s affidavit of his conversations with Samuel Swartwout, but mainly to confirm what Eaton had said. Then he pointed to the commotions in New Orleans and Ohio as proof of a serious threat, asking: “Was all this occasioned by the approach of one solitary and powerful individual?” Echoing what Jefferson had earlier concluded, Hay contended that “of the treasonable intentions and plans of Mr. Burr therefore there can be no doubt.”40

  When it was his turn, John Wickham quickly exposed the weaknesses in the prosecution’s case. He began by asking the most pertinent question: “Is there even one solitary witness who can depose to an overt act of treason?” In the constitutional definition of treason, proof required the testimony of two witnesses to the same overt act. If there was proof of anything, it was that Burr might have been planning an invasion of Spanish lands, which Wickham claimed was not illegal. The country was “in an intermediate state between war and peace,” and so a filibuster could easily be seen “as useful” to the United States.41

  Wickham also wondered aloud why Burr was being tried in Virginia, thereby questioning the prosecution’s decision to focus on Blennerhassett Island (which was, technically, within the jurisdiction of Virginia). Where did the prosecution get the idea that an offense had been committed on the island? From the newspapers, of course. Burr’s attorney belittled the evidence. Why had no one been brought to testify who witnessed the insurrection? “What kind of invisible army must this have been,” Wickham mused playfully, “when in the course of three months not an individual could be found to testify to its existence?”42

  Eaton was his next target, whom he called a “stranger” to Burr. His retelling of Eaton’s story made it appear not only improbable but ridiculous. It “surpasses the bounds of credibility,” Wickham declared, that Burr would have made such an outlandish confession as that he planned to establish a monarchy, and separate the western country, let alone “cut the President’s throat, & then turn Congress, neck and heels out of doors!” Eaton’s behavior defied common sense. He should have viewed Burr as a “madman,” but instead he begged the president to place him in a “most responsible and delicate situation,” as a foreign ambassador. And what was to be made of Eaton’s toast—“Palsy to the brain that should plot to dismember, and leprosy to the hand that will not draw to defend our union!”? Did he expect a public toast to cause Burr to reconsider a dangerous plan? The only conclusion to be drawn, Wickham insisted, was that Eaton “shews an irregular imagination” and a bad memory, his story “strange, passing strange.” To rely on such testimony just made the prosecution look as foolish as William Eaton himself.43

  Edmund Randolph, the elder statesman and Burr’s second co-counsel, underscored Wickham’s remarks. Prejudices had been propagated “from one end of America to the other,” he said, alluding to the role that newspapers played in manufacturing the conspiracy. As to Eaton’s statement, it served only a political purpose, inciting fears of “monarchy” among Republicans, especially Virginians. Lest we forget, Burr had been repeatedly caricatured in the newspapers as the “little Emperor”—demonized to conjure the Republicans’ worst nightmare.44

  Next, Burr spoke in his own defense. Turning to the law, he observed that treason “must consist in acts,” while the prosecution’s warrant relied on mere “conjectures.” The commotions that took place in the West could hardly be laid at his feet: “We are told by the President that the people of Ohio were alarmed; and how were they alarmed? He alarmed them. How was he alarmed? By Mr. Wilkinson.” The “historical facts” had to speak for themselves. Burr had been “honorably discharged” by three grand juries; and in Mississippi, he pointed out, he was not only acquitted but the clear-headed jury actually “censured the government.” And, he added, there was “no alarm in that part of the country.”45

  But his most interesting remarks concerned his promptness to concede to his filibuster plan: even “if it might be said that the designs imputed to me ever did exist,” he contended, “it might also be said they were long since abandoned.” By the time he descended the river, the equipment he was carrying proved that his object was, by then, “purely peaceable and agricultural.” His band of men were on their way to settle the Bastrop property, in Louisiana. He had never considered treason, and repeated what he had said all along: “My designs were honorable and would have been useful to the United States.”46

 
With his accustomed directness, Burr addressed Chief Justice Marshall, claiming that the court had three choices: acquittal; commitment for treason; or for misdemeanor. Wasting few words, he said that there was really only one reasonable choice: acquittal. For what the prosecution considered proof was not proof at all, given that the affidavits of Wilkinson and Eaton were “abounding in crudities and absurdities.”47

  The youngest attorney in the courtroom that day wrapped up the prosecution’s argument. Caesar Rodney was only thirty-five, and seemed embarrassed by the task before him. He had been a close friend of Burr’s, and he admitted as much to the court. But Rodney soldiered on, declaring that a chain of circumstantial evidence proved Burr’s guilt, and that the newspapers had firmly implanted in the public mind the certainty of this truth. Yet Rodney was willing to admit that the prosecution probably did not have evidence of an overt act. The only argument he could muster was to compare Burr to Jason, of the Greek legend. In effect, he was leading a band of foolish young men, what he called a “new argonautic expedition,” to capture the “golden fleece” in Mexico.48