Fallen Founder

by Nancy Isenberg

  Hay was baffled. At first, he said that he would supply the papers, though he felt the subpoena was uncalled for. Then he became annoyed, and decided to dispute Burr’s right to pursue this course of action. The following day, Luther Martin stepped in and gave one of his grand orations. “This is a peculiar case,” he intoned. President Jefferson had imperiously prejudged Aaron Burr, when he declared that there was “no doubt” as to his guilt. By taking this aggressive action, the president had placed himself in the middle of the case; he had bullied Burr with his accusations, usurping the power of the court system to decide his fate. “He had assumed to himself the knowledge of a Supreme Being himself,” Martin pointed the finger, “and pretended to search the heart of my highly respected friend.”74

  Martin’s client, his highly respected friend Burr, made no remark as his lawyer stepped up his impassioned appeal. Had Jefferson callously used the cry of treason to enhance his political reputation? He had called Burr a traitor “in the face of the country”; and the nation had “rewarded” the president for doing so. This was indecent, said Martin. It was evidence of Jefferson’s arrogance, and perhaps a crime as well. The president had “let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend.”75

  Wirt was livid, or certainly that is what his words at this moment suggest. Wilkinson’s letter had no bearing on Burr’s case, he insisted. And whatever “bloody orders” might have been issued, “Burr had placed himself in a state of war with his country.” In that case, it would have been a “great and glorious virtue” to kill the traitor. If Burr’s attorneys were to claim that the government had behaved dishonorably, then, Wirt scoffed, “let them clear the skirts of their client.” “Let them prove his innocence,” he dared, momentarily forgetting that basic tenet of the law: innocent until proven guilty. Proof of Burr’s innocence would be “the most eloquent invective which they can pronounce against the prosecution.”76

  Wirt’s outburst showed how effectively Luther Martin had baited the prosecution. Wirt had confirmed rather than disproved the defense’s contention that the government had a vendetta against Burr. Foolishly, he had raised the outlandish argument that the militia had a right to kill Burr simply on the presumption of his guilt. Just as Jefferson had done, Wirt, a future U.S. attorney general, had twisted the rule of law in contending that Burr’s guilt was so irrefutable that bringing him to trial was superfluous.

  Wickham could hardly believe what he had heard Wirt say. Did he really mean that “the acquittal of Colonel Burr will be a satire on the government”? It was a sad day when the president’s handpicked prosecutor confessed “that the character of the government depended on Burr’s guilt.” To Wickham, Burr could be acquitted without the federal government collapsing, morally or otherwise.77

  So the defense had decided on a strategy: Martin would go for the jugular, and Wickham take the higher ground. At this point, Wirt found himself backed into a corner. He must have recognized that his arguments had played into the defense’s hands. In this round of forensic digladiation, when Hay and McRae were not in the least agile, Wirt, the government’s best and brightest, could not keep pace.

  Wickham made it clear that Wilkinson’s letter was crucial. “He is the pivot on which this prosecution turns,” he keenly observed. The prosecution had no case without the general, and so the defense had every reason and every right to challenge his credibility—to prove the “falsehood of his testimony.” Given his tyrannical conduct in New Orleans, the general was not, Wickham remarked slyly, “so immaculate as the government.”78

  Next, Edmund Randolph took a series of swipes at Wilkinson, whom he described as a desperate man, willing to distort the truth in a frantic attempt to salvage his own reputation. By having Wilkinson’s original letter physically in court, Randolph said he would be able to show the general as he really was, and make certain that he would no longer be “worshipped as the political Messiah of America.” As for Jefferson, his principal crime lay in shielding such a character.79

  Finally, Burr entered the fray. He claimed that he had little interest in defaming the government. He denied that he had encouraged his attorneys to do so, either. At this point Martin chimed in, saying that Burr had encouraged restraint, and that any severe comments were his alone. Burr explained that he was requesting General Wilkinson’s letter because he was looking for “facts,” and that the letter would show no evidence of treason. He clarified, too, that Jefferson’s proclamation, based as it was on Wilkinson’s October 21 letter, made no mention of treason. The only issue at hand at that time was whether an attack on Spanish territories had been intended. Had there been any suggestion in the president’s mind that Burr was part of a treason plot, Jefferson certainly would have said so. And so, Burr concluded, the facts disproved the prosecution’s logic.80

  On June 13, after hearing from both sides, Marshall ruled that Burr had the right to request a subpoena duces tecum. The court then issued Burr’s subpoena to Jefferson. The president complied, up to a point; he gave Hay permission to hand over Wilkinson’s letter and any other documents pertaining to Burr’s case, though he reserved the right to withhold any information considered confidential. At the same time, he shifted his anger toward Luther Martin. He thought he could badger Martin into revealing what he knew about Burr’s conspiratorial activities, by supplying a communication he had received from a Martin acquaintance in Maryland, which attested to Martin having expressed his support for Burr’s plan to sever the West from the union. Thus the president thought he might be able “to commit Luther Martin,” along with Burr. He could silence Martin, if not convict him of misprision of treason (knowledge of treasonous activities). This was Jefferson at his most obsessed, believing that anyone who could effectively defend Burr—he was now calling Martin “this unprincipled and imprudent federal bull-dog”—had to be no less than Burr’s accomplice. To Jefferson, apparently, the reason that Martin sounded so persuasive was that he knew what Burr was up to all along.81

  “MAMMOTH OF INIQUITY”

  On the same day that Chief Justice Marshall delivered his opinion on Burr’s subpoena, several witnesses were sworn, including the flamboyant General Eaton. Burr later wrote Theodosia that when the general came out of the jury room, he was in “such a rage and agitation that he shed tears, and complained bitterly that he had been questioned as if he were a villain.” Burr drolly added to his report, “How else could he had been questioned with any propriety?”82

  But the swearing-in process was delayed when the prosecution’s surprise witness, Dr. Erich Bollmann, arrived in court. The German-born Bollmann had been one of two messengers who carried the cipher letter (supposedly written by Burr) to Wilkinson, and had been arrested and sent to trial along with Samuel Swartwout. Some months before the trial, he had approached Jefferson for a private interview, wherein he hoped to convince the president that the newspaper charges had been grossly exaggerated. Burr’s only plan, he told Jefferson, was an expedition against Spanish possessions. Jefferson persuaded Bollmann to put his statements into writing, which he did. Later, Bollmann publicly regretted having gone to Jefferson; he explained, in the newspapers, that English was not his native language, and some of his statements might be misleading. He was dismayed that Jefferson had used his statements against Burr after having given his “word of honor” to keep the matter private. Finally, Jefferson directed George Hay to give Bollmann full immunity in return for agreeing to testify against Burr.83

  Prior to Bollmann’s appearance in court on June 13, Hay offered him the presidential pardon. He said nothing. Hay tried once more, dramatically, before the packed courtroom, to dangle, as Burr put it, “a pardon under the great seal and with the sign manual [hand signature] of Thomas Jefferson.” At this moment, Luther Martin interjected: “It had always been Doctor Bollmann’s intention to refuse this pardon,” though he had not done so until now because “he wished to have this opportunity of publicly rejecting
it.” Hay asked again, and again, but his witness consistently refused to change his mind.84

  Martin contended that a pardon was an admission of guilt, and that was why Bollmann refused it. Here was a man with a heroic reputation, having done “so much to rescue the marquis la Fayette from imprisonment,” and who “bears too great a regard for his reputation” to “abandon his honour through a fear of unjust persecution.” Martin had turned the courtroom into a morality play, and Bollmann, who had gone to prison after his attempted rescue of Lafayette failed, was exhibiting the same kind of courage in his commitment to Burr. This, according to Martin, was the definition of “manly loyalty.”85

  The battle over dueling reputations reached its crescendo the following Monday. On the fateful day of June 16, the proud General James Wilkinson marched into court. He had arrived in Richmond prior to the weekend, with an entourage consisting of several young officers and ten or so witnesses in tow whom he had rounded up to testify before the grand jury. Wilkinson was known for pomp and circumstance. We can take an educated guess as to his appearance on the basis of an 1804 description, when the portly general was seen riding through Washington in an ornate uniform of his own design. His saddlecloth was of leopard skin, and his stirrups were made of gold. Gold braids, shiny buttons, the insignia of military office, and a large sword swinging from his side topped off his regalia. That was how he strode into the courtroom: in high style and clad in his military finest.86

  It was the moment the spectators had been waiting for. Wilkinson and Burr had not crossed paths since the former had accused the latter of treason. In the florid prose that befit the pomp of Wilkinson, he described their courtroom dance to Jefferson. “I saluted the Bench & in spite of myself my Eyes darted a flash of indignation at the little Traitor,” he gallantly recounted, assuring the president that “this Lyon hearted Eagle Eyed Hero, sinking under the weight of conscious guilt,” was no match for him. “With haggard Eye,” he noted of Burr, “he made an Effort to meet the indignant salutation of outraged Honor, but it was in vain.” Wilkinson believed that Burr’s “audacity” had failed him, so that the defendant “averted his face, grew pale & affected passion to conceal his perturbation.”87

  Wilkinson was living in his own world if we can go by the less self-interested (though still subjective) account of Washington Irving, who was close by. Still a relative unknown, the future author of such great American short stories as “Rip Van Winkle” had been sent to Richmond to cover the trial. His report brilliantly captured those qualities that made his fellow New Yorker’s reputation as the “incomparable Burr.” Irving described how Wilkinson strutted into court, and halted when he stood parallel to Burr, who just then was seated and conversing with one of his counsel. “Here he stood for a moment swelling like a turkey cock, and bracing himself up for the encounter of Burr’s eye,” Irving observed. Burr took no notice of him until the judge instructed the clerk to swear in General Wilkinson. Irving gave a detailed account of what happened next:

  At the mention of the name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly resumed his former position, and went on conversing with his counsel as tranquilly as ever. The whole look was over in an instant; but it was an admirable one. There was no appearance of study or constraint in it; no affectation of disdain or defiance; a slight expression of contempt played over his countenance, such as you would show on regarding any person to whom you were indifferent, but whom you considered mean and contemptible.88

  Burr was second to none in dismissing an adversary with a well-timed glance.

  Burr’s disciplined audacity was a rare and valuable quality for a political actor. He exhibited that subtle elegance, typified by Beau Brummell, which defined masculine sociability in a modernizing age. Brummell was the most distinctive trendsetter in England, a cultural celebrity, who had come to be part of the inner circle of the Prince of Wales. He was known for his meticulous control of every gesture, and especially for his dismissive gaze—the mark of masculine prowess. Brummell was a younger man, but like Burr he was small and slender. To Irving, a theatergoing aesthete who had traveled to England and the Continent, Burr possessed this distinctly modern style of self-presentation. He was, in that sense, the American version of Beau Brummell. Both men mastered the “effortless effort,” a trait that is more readily associated in modern times with such Hollywood legends as Humphrey Bogart and Clint Eastwood. This is a significant statement, because it is the only way we can truly comprehend the intangible in Burr’s personality that his admirers found so irresistible and his enemies saw as dangerously seductive.89

  Wilkinson, of course, represented the opposite personality type: Old World values of the eighteenth century, which measured worth according to rank, pomp, uniforms, and other surface indices. Burr had a distinct advantage over Wilkinson in the courtroom. He was not just a lawyer—he was in his element. Wilkinson was in a place where he could no longer throw his weight around and behave as a petty tyrant, as he had done in New Orleans. And his protector, Jefferson, was far away. Burr might have been on trial, but Wilkinson was certainly in the spotlight.

  Wilkinson was interrogated by the grand jury for four long days. Eventually he was forced to admit that he had altered his copy of the cipher letter. The opening sentence was missing, the gist of which implicated the general as Burr’s confidant; Wilkinson had erased several other words and replaced them with innocent-sounding language. Congressman John Randolph, the jury foreman, was predisposed to distrust the general, and sternly insisted that Wilkinson remove his sword upon entering the jury room—a move that symbolically unmanned the proud soldier. Randolph had listened skeptically to Wilkinson’s self-aggrandizing account of his actions in New Orleans, so that now, upon learning that Wilkinson had tampered with the evidence, he resolved that this “mammoth of iniquity,” as he called him, should be indicted for misprision of treason. A vote was taken on the matter, and of the sixteen jurors, seven pushed for indictment. Thus Wilkinson escaped a share in Burr’s fate by 2 votes.90

  No member of the distinguished jury thought that Wilkinson was innocent. Randolph gave his undisguised opinion: “Wilkinson is the only man I ever saw who was from the bark to the very core a villain.” The congressman was certain that Wilkinson was only saved because of his close connection to President Jefferson. And though they were both Virginia Republicans, there was no love lost between Jefferson and Randolph. He had supported the president during the election of 1800, but was now a defiant critic. In addition to wishing for Wilkinson’s indictment, he felt as strongly that Jefferson should be rebuked for sheltering this “mammoth of iniquity.”91

  Nearly fifty men were paraded before the grand jury. In addition to Generals Wilkinson and Eaton, the witness list included navy commodores, low-ranking soldiers, such trusted associates of Burr’s as Andrew Jackson, Erich Bollman, and Samuel Swartwout, plus several of Harman Blennerhassett’s servants. Among these, Swartwout proved to be a particularly compelling witness; several jurors later attested to his candor and innocence, which only added to their distrust of General Wilkinson.92

  In spite of such performances as Swartwout’s, the grand jury did what was expected. On June 24, it issued bills of indictment for treason and misdemeanor against Burr and Harman Blennerhassett. Additional indictments were issued one day later for Jonathan Dayton, Senator John Smith of Ohio, Comfort Tyler (who had been so prominent in recruiting for Burr’s enterprise), and two minor members of Burr’s expeditionary army. Nevertheless, the grand jury had no intention of endorsing Wilkinson’s reign of terror in New Orleans insofar as Bollman, Swartwout, John Adair, Peter Ogden, and James Alexander (all sent east by the general) escaped indictment.93

  The indictments revealed the prosecution’s strategy. So as to convince the jury that any assembly of men was proof of treason, Burr’s two alleged cr
imes were merged. The indictments were founded on the allegation that on December 10, twenty or thirty men stopped at Blennerhassett Island on their way down the Ohio; it was their intent to take temporary possession of New Orleans on their way to Mexico. Never mind that this group was unarmed and neither used nor threatened force. A war of some kind was underway—by construction of law—and centered on Blennerhassett Island. Though Burr was not on the island, the indictment claimed that he was. As to this particular, Burr wrote his daughter that “not a man on the jury supposed this to be true.” It was a faulty indictment.94

  Since there was no bail allowed for one accused of treason, Burr spent two nights in the city jail. His attorneys complained to Chief Justice Marshall that the miserable conditions in the jail were endangering his health, and making it difficult for them to consult with their client. By order of the court, Burr was then moved to Luther Martin’s residence, where he was confined to the front room. The windows were barred, the door padlocked; seven men guarded the house to prevent him from escaping.95

  On the last day of June, Burr was moved to the state penitentiary, located on the outskirts of Richmond. He would be joined there by Harman Blennerhassett after the latter was transported from the West and brought to Richmond to stand trial. Meanwhile, Burr had the top floor to himself, and guests of both sexes flocked to see him. Local women showered him with gifts of oranges, lemons, apricots, cream, and butter. No less than William Wirt’s mother-in-law supplied the prisoner with homemade treats. According to Washington Irving, the fair sex was hoping for his acquittal. Republican newspaper editor William Duane of the Philadelphia Aurora mockingly referred to the “emperor of the penitentiary.” There was some truth in this description. Blennerhassett would write with amazement, “Burr lives in great style, and sees much company in his gratings, where it is as difficult to get an audience as if he really were an Emperor.”96