by Gore Vidal
Memoirs of Aaron Burr—Twenty-one
IN THE MATTER of treason, the Constitution is explicit: two persons must witness the traitor in the act of levying war against the United States or of adhering to their enemies, giving them aid and comfort. Since the place where I was supposed to have raised my “army” of insurrection was Blennerhassett’s Island, in the month of December 1806, it was necessary for Jefferson to establish that I had indeed committed the crime he had told Congress I had committed.
Yet the facts were unimpressive. All that the prosecution could prove was that some thirty men associated with me stopped at the island on their way down the Ohio. They were not armed. They committed no acts of violence (unlike the local militia). They threatened no one. They said they were en route to the Washita River lands. But because General Wilkinson maintained that these unarmed men meant to seize New Orleans and revolutionize Mexico, they were accused of levying war against the United States by construction, and since I was thought to be responsible for their movements (even though I was in Kentucky at the time this “war” was levied against the United States in Virginia), I too was guilty of treason by construction.
May I say that the entire concept of constructive treason is unconstitutional and was known to be so by every lawyer in the United States, save Jefferson. But he was desperate. Although he had assembled nearly fifty witnesses to denounce me (of whom more than half perjured themselves), there was never any proof that I had levied war against the United States, or advised the thirty men on Blennerhassett’s Island to levy such a war.
During the trial, the Governor of Virginia very nicely assigned me a three-room suite in the new penitentiary outside Richmond. I have seldom been so well looked after. The jailer received me most courteously, and hoped that I would be comfortable.
“I am certain to be,” I said, graciously.
“I trust, Sir, it would not be disagreeable to you if I should bolt this door after dark?” He indicated the front door to my apartment.
“By no means, Sir. I should prefer it—to keep out intruders.”
“It is also our custom, Sir, to extinguish all lights at nine o’clock.”
“I fear, Sir, that that is not possible. I never go to bed before twelve, and always burn two candles.” I did not add that I never go to bed but with regret, and by violence to myself.
“Just as you please, Sir. I should have been glad if it had been otherwise …” A sigh. “But as you please, Sir.”
We became excellent friends, particularly when I shared with him the gifts that were hourly brought me by liveried servants—oranges, lemons, pineapples, raspberries, apricots, cream butter and even ice, a luxury in that equatorial zone.
On August 2, Theodosia and her husband arrived, and moved into Luther Martin’s house. Theodosia swiftly became the queen of Richmond society, presiding at the Golden Eagle with such charm—despite ill health and natural anxiety—that Luther Martin said, “I must marry her, Colonel. I shall kill her unworthy husband, and then she will be mine, by right of conquest.”
“You have my blessing.” At that moment I confess that I should not in the least have minded anyone murdering my son-in-law who had all but denounced me in order to avoid being arrested by Jefferson. Alston was a man of weak character with but one interest—his wife and his son. For that shared passion, however, I forgave him everything.
Meanwhile, Blennerhassett had joined me. He, too, was under indictment, and somewhat out of sorts. Our first meeting was not harmonious, largely because he saw fit to pay a call upon me just as a lady of Richmond (a young widow, I hasten to add) was stealing from my presence, with the good jailer’s assistance.
“I do not wish to criticise you, Colonel …”
“Then indulge your wish, my dear friend, and refrain from criticism.”
“But immorality of any sort, licence of any sort …”
“Come now.” I did my best to soothe the incestuous uncle.
“… and in a penitentiary!”
“Ah, it is not fitting. I see what you mean.”
“No, it is not.” He then told me that he wanted back the money he had contributed to our venture. Since I was not able to oblige him, he most quixotically refused to hire a lawyer to defend himself. Fortunately my cohort of attorneys was willing to save him from the gallows.
The government had been led to believe that my son-in-law would testify in their behalf. But we undid them. On the day of the trial, August 3, Alston and I entered the court-room together, my arm through his.
It took us a week to assemble a jury from the usual panels. As it turned out, every prospective juror was of the opinion that I was guilty. We might still be at Richmond if Marshall had not ruled that an opinion of the defendant’s guilt which was lightly held—as opposed to deliberately held—did not disqualify a juror. This exquisite decision pleased George Hay. But the wrangling continued.
Finally, I moved to pick any eight men from the existing panel, if the prosecution would accept them. Startled, Hay agreed. After all, the entire panel thought me guilty—and none appeared to hold their opinion with much lightness. Almost at random, I picked eight men, making the point that I was certain I could rely on the fairness of gentlemen. This proved to be an excellent move, and I won right off a convert or two, not that it much mattered. I knew that only the law could save me; the jury was irrelevant.
Next to Wilkinson, the government’s most important witness was William Eaton, an adventurer who called himself “general” as a result of some interesting skirmishes in North Africa that had gained him a degree of celebrity, a fascinating costume inspired by the Berbers, and a long outstanding claim on the United States government for services supposedly rendered.
I had met Eaton in Washington, had mentioned something to him of my plans for Mexico. He had shown interest, and that was all. Now, suddenly, he had a marvellous tale to tell. Apparently I’d planned to seize the capital, murder the President, and so on. To forestall me, he told the court, he had gone to Jefferson and suggested that I be given a foreign embassy to remove me from the scene. Out of tact he forgot to mention to Jefferson that I intended to murder him.
In court I probed Eaton on the subject of his claim against the United States. Had it been paid? He tried not to answer. Finally, reluctantly, he admitted that shortly after my arrest the government suddenly saw virtue in his claim and he had received some ten thousand dollars.
The Morgan family also testified. Their reports of my conversation were sketchy, and self-contradictory. Nevertheless they, too, were rewarded by Jefferson, who saw to it that the government granted them the disputed Indiana land.
My chief of staff the good French Colonel de Pestre was secretly offered a commission in the American army if he would testify against me. He refused. Even Blennerhassett was approached by Jefferson’s henchman, the editor Duane, and told that if he would fully incriminate me all charges would be dropped against him. Surprisingly, Blennerhassett refused. I suppose he thought that if I was hanged he would never see so much as a penny of the money he had lent me. The other witnesses for Jefferson made little impression.
Finally, Marshall asked Hay if he had any further “evidence” that Burr had been at Blennerhassett’s Island on the famous December 10 when an act of “war” had been supposedly levied against the United States. Hay said that he had none.
John Wickham then moved that no further testimony be admitted. He also entranced the court for two days, making the point—and re-making it in a hundred subtle ways—that it was not possible to commit treason unless the traitor was himself present when war was levied against the United States. This argument was essential to my defence. Quite simply, I had not been at Blennerhassett’s Island December 10. But the constitutional argument was even more important than my neck (which I would have, perhaps, denied at the time).
Wickham’s target was the ancient notion of “constructive treason.” In its purest sense this phrase means that anyone who might have wish
ed well a potential traitor was as guilty as the traitor himself even though the well-wisher was miles away from the act of war. Wickham reminded the court that the Constitution is a unique document in which treason is exactly and narrowly defined. The traitor must actually be caught in the act of levying war against the United States. These absent figures who wish him well, who might even have inspired him, are nowhere mentioned in the Constitution, and so are not traitors.
This point had to be spelled out with great care because John Marshall had made a serious error in his earlier ruling on Bollman-Swartwout. Although Marshall had not found any evidence of any war of any kind being levied on Blennerhassett’s Island, he did declare—no doubt wanting to impress Jefferson with the court’s impartiality—that “it is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting, by force, a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”
I am told that to the end of his days, Marshall regretted this extraordinary blunder, redolent of the medieval Star Chamber. As he himself was soon to recognise, if such a wide net is to be cast into the sea who cannot be caught in it if he has had the ill fortune to have said “God-speed” to a man who later levied war against the United States?
The prosecution was slow to use the weapon Marshall had forged for them. They were so intent on proving that I was on the island December 10 that when I was able, easily, to prove that I was elsewhere, their set-back made more of an impression on the jury than it ought. They would have been better advised to confine themselves to my distant leadership of the men on the island and to the treasonable words I was supposed so promiscuously to have said to the various perjurers Jefferson had paid to come to Richmond.
The task of the defence was now to modify Marshall’s doctrine of “constructive treason.” The Chief Justice, however, was moving in a different direction. He was going to evade as much as possible the trap he had set for himself by attending to the simpler issue of whether or not an act of war against the United States had indeed been levied December 10, and if it had could the government produce two witnesses to that act, as required by the Constitution?
Wickham’s presentation proved so thorough and so masterly that the prosecution asked for a recess (which was granted); they also asked for more witnesses to be heard, and heard they were—to no avail.
Then the counter-attack began. William Wirt insinuated himself into the history of American prose if not of law by a splendid flowery description of Blennerhassett’s Island as a perfect and innocent Eden to which Aaron Burr, the Devil himself, came as the sulphurous tempter of poor Blennerhassett (a monstrous composite of Adam and Eve), deliberately, cruelly changing to Hell a pristine island Paradise. I am told that this remarkable effusion is still taught in every school of the country as an example of—God knows what! I do suspect that my continuing dark fame in this republic is now almost entirely due to the fact that the only thing that three generations of American schoolchildren know of Aaron Burr they have learned while committing to memory William Wirt’s oration. Not long ago I had the pleasure of listening to one of my wards proudly recite by rote Wirt’s philippic against Aaron Burr, not realizing it was her kindly old Gamp she was denouncing in such rich, hyperbolic phrases.
Now on the defensive, George Hay not so delicately chose to threaten John Marshall, reminding him that for pre-judging a trial Justice Chase had been impeached. The defence made much of this threat. Wisely, Marshall made little. Luther Martin and Edmund Randolph then closed the case for the defence on Friday, August 29.
John Marshall spent Saturday and Sunday preparing his opinion. On August 31, he read it to us for three hours. From the legal and constitutional point of view, the opinion is often weak and contradictory. Having nearly undone himself (and the Constitution) with the Bollman-Swartwout ruling, he ignored, as best he could, his own previous statement that anyone who had contributed to the levying of war against the United States was as guilty as the actual leveller of war, and addressed himself to quite a different issue.
In order to prove treason, the government was obliged, first, to prove that an act of war had been levied against the United States and, second, to prove whether or not a given individual had been involved in that act. The case, in other words, had been presented backward. The government had arrested Aaron Burr for complicity in an act of war which had yet to be proved. Further, it was the government’s contention that Burr was present when the as yet unproved act of war was levied. Marshall briskly dealt with that: the court was satisfied that Burr was elsewhere.
Then Marshall affected to deal with the prosecution’s crucial point: had Burr incited others to treason? and if he had was he guilty of treason? Marshall now edged with elephantine grace away from his own earlier position. He pointed out that Burr had been indicted for acts of war against the United States on a certain day and at a certain place. Now on that day Burr was not present in that place. Nevertheless, the question remained: was he guilty of inciting to treason those who were there? If he was, then the court must point out that the government had not indicted him of this crime for the excellent reason that incitement to treason was no crime under the Constitution. There was a murmur from the lawyers in the court as they saw which way our legal history was about to go.
“To advise or procure a treason,” and Marshall’s voice became suddenly loud and clear, “is in the nature of conspiracy or plotting treason …” He paused, no doubt aware that the obvious always sounds novel when stated with unexpected emphasis. Then he made his point, and took his place in history, “which is not treason in itself.” With this formula, he undid his own decision of six months before.
As the murmuring increased in the court-room, Marshall patiently explained that no doubt there ought to be such a law, but since for the present it did not exist he would move on. Meanwhile, he was still not satisfied that “a secret furtive assemblage” on Blennerhassett’s Island had ever been intended as an act of war but even if it had been so intended, the absence of Aaron Burr made him no party to it, and what advice he might have given the men there furtively assembled could not be considered an act of war against the United States, as defined by the Constitution.
That was the end of the government’s case. George Hay slammed down his papers on the prosecution’s table for which diversion he was favoured with Marshall’s full attention yet mildest tone.
“That this court dares not usurp power is most true.” There was complete silence in the court. Everyone knew that Jefferson’s wrath would now be focussed upon the Chief Justice. How would the Chief Justice respond? John Marshall was direct: “That this court dares not shrink from its duty is not less true.” He spelled out as plain as any Martin Luther where he stood, and why he would not move, despite Jefferson’s threats of impeachment and the breaking of the Supreme Court. On that note the jury was sent out to do its duty.
The next day, Tuesday, the jury found me “not proved to be guilty under this indictment by any evidence submitted to us.” I was relieved; I was outraged. I was not to be hanged; I was also not to be exonerated. The jury had broken with all custom by refusing to answer simply “guilty” or “not guilty.” Marshall chose to allow the jury’s phrase to remain in the indictment while signifying that the court’s record would be decorated with the usual, unadorned “not guilty.”
The next day I was released from prison, on bail, and attended a dinner party given by John Wickham to celebrate our victory.
Theodosia was my consort for the evening, and we presided over the revels—and were happy except that I knew that my days in court were not yet finished while I was troubled by my daughter’s health. I prayed it would not follow the same course as her mother’s
. Yet that evening she was witty, resplendent, triumphant.
Eight
THE COLONEL STOPPED suddenly. “I cannot go on.” I put down my pen. “Are you ill?”
He shook his head. “No. Tired.”
“Shall I get Mrs. Keese?”
“No.” He sat back in the sofa; took a deep breath … I half-expected it to be his last but he is not ill as far as I can tell.
For some minutes I sat watching him, wondering whether or not to go. Finally he opened his eyes, turned toward me. “I am only tired,” he repeated, “unexpected as that may seem. It is not easy for me—re-living all this.”
The Colonel indicated the volumes of legal reference he has been using. “You must go through them yourself. Decide what you would like me to comment upon. I don’t seem to be able to …” He stopped.
“We’ve been doing too much.” I apologized at length.
But the Colonel was not listening. He was staring at the portrait of Theodosia. Finally, “Actually there isn’t much left to tell. We stayed on at Richmond for another two months and I was found innocent of the misdemeanour of wanting to invade Mexico. But Marshall was becoming frightened. Almost every evening he and I were burnt in effigy, an honour I was used to but one which distressed the Chief Justice who was—quite sensibly—fearful of Jefferson’s ability to stir up the people. So Marshall ruled that I be tried in Ohio for the misdemeanour of trying to levy war against Mexico. It was a shameful collapse before Jefferson and popular opinion—reminiscent of King Henry’s before Jack Cade. Fortunately Ohio never pressed the suit, and I was free—but shadowed.
“I went with Luther Martin to his home in Baltimore, but was forced by mobs to leave. Then I went to Philadelphia, and tried to re-assemble my life. I still had hopes in Mexico—with English or French aid something might yet have been done. There was also Texas. I had support there …” A long pause.
Then the voice changed from disjointed elegy to dry narrative. “Disguised as Mr. H. E. Edwards I sailed for Europe in June of 1808. By the middle of July I was in London, just in time to learn that Napoleon’s brother Joseph—yes, our New Jersey neighbour who ate pork and cabbage in Madame’s kitchen—would become king of Spain and, of course, of Mexico. That was the end of my Mexican venture. King Joseph was not about to help me dismember his newly-acquired empire. Nor was England about to dismember the empire of the previous king, in whose name England presently invaded Spain in order to drive out the Bonapartes …”