Fallen Founder

by Nancy Isenberg

  As the men and women of Richmond rallied to Burr’s cause, Wilkinson accordingly became the laughingstock of the town. Another man who was never known to be shy about expressing his resentments was Andrew Jackson, who proclaimed to any who would listen that James Wilkinson was a scoundrel. The Tennessean was convinced that the trial was nothing but an example of political persecution. The great democrat Jefferson, whom he had previously esteemed, he now considered a dupe, if not corrupted as a result of his alliance with Wilkinson.97

  Samuel Swartwout echoed Jackson’s ridicule of Wilkinson. He insisted that the unprincipled general had stooped so low as to steal his gold watch in New Orleans, when he placed him under arrest. Here in Richmond, Swartwout confronted his erstwhile captor, literally pushing him into the street and challenging him to a duel. Wilkinson refused to settle the dispute through an affair of honor or any other way; in the vocabulary of the duelist, Swartwout branded him a “coward” and “poltroon” in a statement printed in the Virginia Gazette and picked up by other newspapers. A caricature of Wilkinson made the rounds in Richmond that summer: he was Falstaff, the bumbling, rotund, and foolish sidekick of King Jefferson.98

  “WHO IS BLENNERHASSETT?”

  On August 3, 1807, before a large crowd that filled the House of Delegates, Aaron Burr’s treason trial began. The unbearable summer heat could not keep the curious away from what was becoming the greatest spectacle in the short history of the republic. As he strode into court, Burr was accompanied by his son-in-law, Joseph Alston. This show of family loyalty was important. Alston had embarrassed both Burr and himself when a letter he wrote to the governor of South Carolina, disavowing any knowledge of Burr’s treasonous intentions, appeared in the newspapers. Alston had seemed more anxious to save himself than to repudiate Burr’s accusers, but he made up for his lapse of judgment by publishing a condemnation of Burr’s mistreatment. If there had been any tension between Burr and Alston, it did not last. On Burr’s request, Theodosia and her husband hastened to Richmond to lend their support, and they would remain by his side until the end of the trial.99

  Jury selection did not get underway until the second week. Once again, it was next to impossible to find an impartial juror, let alone twelve. During the first two days, forty-eight men were examined and only four accepted. Hay concluded that only a “solitary hermit” could have not formed an opinion about Burr’s guilt or innocence. Burr decided to speed things along by agreeing to take eight men from the second panel of forty-eight, though he recognized the bias among some of them.100

  This was a risky proposition, of course. Yet Burr had already calculated that his fate really would be in Justice Marshall’s hands. The chief justice had the sole authority to determine what evidence was admissible, and to prescribe the standard of proof needed to satisfy the court’s definition of treason. The entire trial centered on whether Marshall would endorse—or reject—the idea of “constructive treason.”

  As the indictment made clear, the prosecution’s entire case rested on proving that something akin to war—by construction of law—had occurred on Blennerhassett Island on December 10, 1806. From the state’s perspective, it did not matter whether Burr was on the island at that time or not. In constructive treason, at least in theory, all are principals, and there are no accessories; that is, guilt is supposedly equally distributed among the participants. Of course, the prosecution only used this legal fiction to get around the fact of Burr’s absence from the island on the night in question. According to the state’s scenario, Burr was the mastermind, and as such, his intentions could be manifest in the actions of his agents. It was the prosecution’s strategy to argue that Burr was the principal in absentia, the puppet master pulling the strings of Harman Blennerhassett. Consequently, the eccentric Irishman, who was indisputably present on the island, was now no less important than Burr to the state’s case.

  The jury having been seated, Hay delivered his opening remarks, summarizing the strategy of the prosecution. In laying the foundation for constructive treason, Hay quoted Marshall’s opinion in the Bollmann-Swartwout case, reminding the chief justice of his own language. Marshall had ruled that “all those who perform any part, however minute, or however removed from the scene of the action” are “to be considered traitors.” In other words, all were principals. Burr could be hundreds of miles away, and still be guilty. Then Hay argued that an overt act of treason need not necessarily look like war. It did not require the use of force, armed men, or any evidence that military hostilities had occurred. All that mattered was that an assembly of men with a “treasonable design” had gathered on Blennerhassett Island.101

  What Hay meant to prove was that a “treasonable design” had originated with Burr. For two years, Burr had traveled the country, criticizing the government and stimulating discontent, as he pushed forward his grand scheme, in Hay’s words, “of establishing an empire in the west.” As the plot thickened and the conspiracy took shape, it was Blennerhassett who became the linchpin of Burr’s grand design. Hay next reminded the jury that Blennerhassett was the author of several articles that called for separation of the West from the union. More important, on that December night, the Irishman had led an assembly of men from his island to a rendezvous with Burr at the mouth of the Cumberland River, and together they headed to New Orleans. At this crucial juncture, Hay contended, the treasonous assembly was “under the command of Burr and Blennerhassett” (italics added). As his proxy on the island, and as his co-commander along the Ohio and Mississippi Rivers, Blennerhassett was Burr’s right-hand man—and a vehicle for Burr’s treasonous intentions and designs.102

  Hay also used this opportunity to portray Burr as a man without a country. He lacked a sense of patriotism, and represented no constituency; he had no loyalty to anyone but himself. In the East, before his second trip to the West, Burr was alleged to have told potential recruits that westerners would “meanly and tamely acquiesce” to a new government. Perhaps even a monarchy. West of the Alleghenies, Burr told a different story, urging his hearers to free themselves from the oppressive easterners. He was suggesting that the Atlantic states merely thought of the West as a source of tax dollars, which amounted to little more than “a state of colonial dependence.”103

  Here Hay revived Cheetham’s imagery, in effect labeling Burr a “proteus,” as Cheetham had, that is, a man who shaped his conversation as a tool of seduction. In the initial examination, he had already described Burr as a man who turned to conspiracy in retaliation for Jefferson having withdrawn his confidence in his vice president. He was, in this way, like a spurned lover, a vindictive woman. Republican theory from the time of Niccolò Machiavelli had conceived of reckless ambition as the goddess Fortuna, a feminine power that was subversive, mysterious, capricious, and devoid of conscience. Burr, so his enemies claimed, possessed all of these traits in abundance, which the prosecution never grew tired of repeating.104

  After his opening remarks, Hay called his first witness, General William Eaton. Immediately, Burr rose and objected, claiming the prosecution had first to prove an overt act of treason, and Burr figured that Eaton knew nothing about the events on Blennerhassett Island. The challenge sparked debate that continued until the end of the day. Wirt said that the prosecution had every right to present its evidence in a chronological fashion, developing the conspiracy “from its birth to its consummation.” Luther Martin dismissed Wirt’s logic by arguing that it made no more sense than proving a motive for murder before a corpse had been found.105

  Marshall gave his opinion the following morning, ruling that he would only exclude evidence that “does not appear relevant.” He permitted the prosecution to carry on, but made it clear that Eaton’s testimony, or that of any other witness, must relate to the overt act of treason. He was giving the prosecution a warning: proving intention alone was insufficient. The testimony must have some connection to the crime charged, as stated in the indictment.106

  Eat
on returned to the stand. He retold his story one more time. Owing to Marshall’s ruling, his inflammatory account of Burr’s threat to assassinate Jefferson was dropped. On cross-examination, Burr forced him to admit that the government had finally paid him the $10,000 claim he had demanded for his North African filibuster. A payoff? Maybe. This was, in any case, the impression the defense wished to leave in the minds of the jurors.107

  The flamboyant general had become even more of an outcast than Wilkinson. Blennerhassett recorded in his journal: “the once redoubted Eaton had dwindled down in the eyes of this sarcastic town, into a ridiculous mountebank.” Eaton was regularly seen “strutting about the streets, under a tremendous hat, with a Turkish sash over colored clothes,” and his drinking bouts were by now legendary. Amazingly, he openly copulated with a prostitute at a local tavern before leaving town. He was dressed as a Turkish prince and she had donned a harem costume. The “Hero of Derne” had become a lewd and pathetic wretch in Richmond.108

  The next prosecution witness was retired Commodore Thomas Truxton, who had long been a close friend of both Burr and Wilkinson. He earned national fame during the Quasi-War (1798–99), defeating two heavily armed French warships. The commodore was not a man to be trifled with. He was shocked by the news that he had been implicated in Burr’s conspiracy, and that his name had been mentioned in the infamous cipher letter. Anxious to reclaim his honor, he dispatched a letter to Jefferson, followed by an unsolicited note to Burr’s grand jury, denying any role in the affair. He begged Burr to clear his name. Eventually, after Burr convinced him that he was not the author of the cipher letter, Truxton turned his wrath on Wilkinson, who he believed had framed Burr. He blasted the general as a “base hypocrite,” accusing him of double-dealing and of dragging his name through the mud. In Richmond, before a large crowd, the commodore came upon General Wilkinson and turned from him in disgust. He may not have pushed him, as Swartwout had done, but his snub was just as damning.109

  Truxton did little to help the prosecution. In fact, his testimony actually benefited the defendant. As he recounted his conversations with Burr, he asserted that he had never heard him say anything remotely treasonous. To the contrary, his discussions confirmed Burr’s account: in the event of a war with Spain, he intended to lead a filibuster into Mexico. Truxton was equally knowledgeable about Burr’s contingency plan, which Hay had dismissed as a mere cover story: if war did not materialize, then Burr had every intention of settling on the Bastrop property. Truxton again confirmed Burr’s version.110

  This seasoned naval commander was unflappable on the stand. Pressed by the prosecution concerning Burr’s “promise” to make him an admiral, he stated several times that he could not remember whether Burr “wished to see or make me an admiral.” On cross-examination, when Burr asked if they had been intimate, and whether he had ever heard him utter a disunionist sentiment, Truxton replied: “There seemed no reserve on your part. I never heard you speak of a division of the union.” Truxton also apprised the court that Burr had told him that the president was not privy to his plans. Thus, Burr came off as a candid man who was neither mysterious nor capricious, and this undermined the prosecution’s portrayal of the defendant as a deceptive schemer.111

  Peter Taylor was the next prosecution witness to take the stand. He was a poorly educated Englishman, who had been hired as the Blennerhassetts’ gardener. His testimony was intended to demonstrate the conspiratorial connection between Burr and Blennerhassett. On the stand, he asserted that Mrs. Margaret Blennerhassett had sent him down the Ohio River to warn her husband that the Wood County (Virginia) militia was threatening to raid their island, and that he might be in danger if he tried to return home. Taylor searched for his employer in Chillicothe and Cincinnati, before meeting up with Blennerhassett and Burr in Lexington, Kentucky. It was the one and only time that Taylor encountered Burr in person. Sometime later, Blennerhassett convinced his gardener to join in the expedition to settle the Bastrop property, in Louisiana. According to Taylor, when he asked Blennerhassett what seeds to bring along, the reply was “None.” When pressed, his master confessed that their real project was to take Mexico and to establish a new empire. Taylor recreated Blennerhassett’s remarks for the court: “Peter,” the Irishman was meant to have said, “Colonel Burr would be the king of Mexico, and Mrs. Alston, daughter of Colonel Burr, was to be the queen, whenever Colonel Burr died.”112

  Taylor further claimed that Burr’s young recruits had been lured into the expedition with false promises of settling the Bastrop property. Whether they wanted to or not, they were all expected to participate in the Mexican invasion. If someone refused, Blennerhassett would “stab” any man who defied orders. As unlikely as this scenario sounds, Blennerhassett was meant to have revealed to Taylor that the conspirators’ ultimate design was to provoke the western states to leave the union. Finally, Taylor testified that Blennerhassett had sent him to buy guns, ordering him to burn the letter he carried on this errand, because he recognized that it contained “high treason.”113

  Obviously, Taylor’s testimony was brimming with accusations of treason, though most of these were directed against Blennerhassett. He was portrayed as Burr’s co-conspirator and a ruthless commander. It was Taylor’s testimony that had led to his employer’s indictment, for the gardener had already told the same inflammatory story to the grand jury. Margaret Blennerhassett, when she learned of Taylor’s betrayal, wrote to her husband in disgust that he was “confined in a prison in the dogdays, and by the perjury of a wretch not many degrees from a brute!” Theodosia later joked about Taylor’s absurd testimony by referring to the Mexican people as her “subjects.”114

  The prosecution seemed perfectly comfortable putting the entire Blennerhassett household on trial. Taylor was just the first of three hired servants put on the stand, and a subpoena was even issued for Margaret to appear as a witness for the prosecution. To the prosecution, the Blennerhassetts were the perfect marks in the conspiracy Burr had hatched. One potential juror from Wood County, Thomas Creel, claimed that “Burr had seduced Blennerhassett” and had used “the medium” of his wife to do so. Creel’s comment extended the public’s fascination with this family, which grew into a full-blown fabricated romance. As one version of the story was told, Burr was bedding Margaret while her unsuspecting, nearsighted husband played his flute in the study.115

  The Blennerhassetts were perfect targets for another reason: class anger. On their grand estate on the Ohio River, they lived like British royalty. Harman was known as snobbish, and his wife attracted considerable attention for her horseback riding—another sign of aristocratic breeding. She rode a white horse, dressed in a bright scarlet habit adorned with gold buttons, and topped off by a white beaver hat with ostrich feathers. The couple owned at least a dozen slaves, in addition to hiring a sizable number of white servants. It is not surprising that their more humble frontier neighbors would resent them. When the Wood County militia ransacked the Blennerhassett estate, these were drunken soldiers toppling a symbol of class privilege. And thus, the civil war that the prosecution claimed was brewing on Blennerhassett Island was in fact something other: a minor skirmish in a simmering class war on the early American frontier.116

  Colonel George Morgan and his two sons, militia general John Morgan and the younger brother Thomas, were the next prosecution witnesses. According to the Morgans, Burr had said many things that sounded treasonous when he visited the colonel’s estate, Morganza, outside Pittsburgh, in the summer of 1806. At dinner, Burr predicted that the western states would soon leave the union, and he disparaged the “weakness and imbecility of the federal government.” In fact, Burr had gone so far as to claim that the administration was so weak that with two hundred men, “he could drive the president and congress into the Potowmac.” The Morgans were called to testify for one reason: their story confirmed Eaton’s. Burr appeared to be plotting disunion, boasting that he could overthrow the government—just as E
aton had claimed—by turning “Congress neck and heels out of doors.”117

  As in the case of Eaton, this was not the first time Colonel Morgan presented himself as one who had saved his country from a conspiracy. In 1788, he had warned of a plot by the lieutenant governor of Canada to engineer a rebellion in the western states. That was then. Now in his mid-sixties, Morgan had less credibility. In the fall of 1806, when Pennsylvania chief justice William Tilgham, General Presley Neville, and Judge Samuel Roberts visited him and listened to his account of his meeting with Burr, it was obvious to the visitors that Colonel Morgan’s mind exhibited signs of “delirium.” Tilgham apprised Governor McKean of Pennsylvania of his interview with Morgan. The governor did not take Morgan’s statements seriously, and therefore felt no need to warn President Jefferson that Burr might be up to something.118

  It was just as clear that the Morgans had been coached, or had otherwise reshaped their testimony to accord with Eaton’s well-publicized deposition. For example, when Justice Tilgham interviewed Morgan, there was no mention of Burr’s having uttered the offensive remark (which sounded most like Eaton) that with two hundred men, he could drive the president and Congress into the Potomac. It also seems likely that the two sons were protecting their father by echoing his testimony. During cross-examination, Burr brought up Colonel Morgan’s state of mind and forced one of his sons to admit that the colonel was “old and infirm,” though he would not acknowledge “delirium.” Burr insisted (in a private letter) that the Morgans were lying and the conversations had never taken place, but he refrained from accusing the Morgans of lying in the courtroom. It was enough to cast doubt.119

  Six additional witnesses followed. They included servants, the Blennerhassetts’ neighbors, and others who were on or near the island on December 10. It was another of the Blennerhassetts’ unfaithful servants, Jacob Allbright, who proved most valuable to the prosecution. He claimed to have actually observed something that resembled the use of force on the island. On the night in question, he said, General Tupper of the Ohio militia arrived on the island and tried to arrest Blennerhassett. When he put his hand on the Irishman, seven or eight of the men raised their muskets to stop him. Tupper was then forced to leave at gunpoint.120