Chapter IV: Part 4

While Burr was in the East General Jackson had been fully occupied. In April his thoroughbred stallion Truxton won a classic race against Joseph Erwin’s Ploughboy, earning a stake of $3,000, which the General greatly needed, and establishing his owner as the leading turfman of the West. This sporting event was followed by the General’s meeting with Charles Dickinson in a duel in which Dickinson was killed. On the way to the duelling ground the General was not too preoccupied with the business in hand to discuss the Spanish matter with his second, General John Overton. He doubted that the conquest of Mexico would be as easy as Burr imagined. “Burr,” he commented, “is as far from a fool as ever I saw, and yet he is as easily fooled as any man I ever knew.”

Jefferson’s help the General did not value highly. He was then under the impression, which had been encouraged by Burr, that the Government was a silent partner in the plotting against Spain. He prophesied that the Federalists, when they learned about it, would assail the policy tooth and nail. And, he observed, when they did so Mr. Jefferson would “run like a cottontail rabbit.” Here was the rugged frontiersman’s scorn for the timidity of the intellectual in the White House.

In the autumn of 1806, more than a year after his first visit, Burr returned to Nashville. His welcome was as cordial as ever. Another banquet and a ball were given in his honor. Burr entered the hall on the arm of Jackson, resplendent in the uniform of a major general of militia. The General had seen to it that all his friends were on hand to pay their respects to the distinguished visitor. The tall, raw-boned Jackson and the trim, diminutive Burr made a striking contrast. When time came for the drinking of toasts, Jackson arose and offered the always popular one: “Millions for defense; and not one cent for tribute.” Did he have in mind the two millions Jefferson was just then trying to get from Congress for the purchase of the Floridas?

On this visit Burr gave Jackson an order for five large boats and provisions sufficient for the complement of men they would carry. In payment he tendered $3,500 in Kentucky bank notes. Jackson turned over the execution of the contract to his faithful friend and partner, John Coffee. Meanwhile another friend of Jackson’s, one Patton Anderson, set to work in earnest raising a company of young men to go with the Burr expedition down the river, whatever the destination might be.

On Colonel Burr’s appearance in Nashville in late September he imparted confidential information to Jackson which led the latter to believe that war with Spain was about to break out. On the strength of it the General on October 4 took it upon himself to issue a proclamation to the Tennessee militia stating that the menacing attitude of the Spanish forces already inside the American boundary required that the militia be called out and made ready for instant duty. He then notified President Jefferson of his readiness to tender his services:

“Sir: In the event of insult or aggression made on our government and country from any quarter, I am well convinced that the public sentiment and feelings of the citizens within this State, and particularly within my division, are of such a nature and such a kind that I take the liberty of tendering their services, that is, under my command; and at one moment’s warning, after your signification that this tender is acceptable, my orders shall be given conformably.” There could not have been a more generous and loyal gesture.

To a man of Jackson’s impetuous temperament Jefferson’s reply was like a dash of cold water in the face. “Always a friend of peace,” wrote the President, “and believing it to promote eminently the happiness and prosperity of mankind, I am ever unwilling that it should be disturbed as long as the rights and interests of the nation can be preserved. But whenever hostile aggressions on these require a resort to war, we must meet our duty, and convince the world that we are just friends and brave enemies.”

This noncommittal philosophizing was hardly agreeable to the ears of a man whose command was already drawn up under arms and waiting impatiently for the proper authorities to give the word “go.” It could not have failed to increase Jackson’s distaste for Jefferson.

The friendly relations between Burr and Jackson continued as late as November 3. Then, within a week, Jackson’s attitude underwent a sudden reversal. The change came with the visit to the Hermitage of a Captain Fort, a stranger to the General. Fort stayed for the night and part of a day. By this time the country was seething with rumors of a conspiracy, and the conversation between the master of the Hermitage and his guest turned on that subject. Captain Fort ventured the opinion that part of the plot was the division of the Union.

The General asked him how it would be done. Captain Fort replied that it would be done by seizing New Orleans and the bank there, closing the port, conquering Mexico, and uniting part of the Union to that country. It was to be accomplished, he said, with the aid of Federal troops under the command of General James Wilkinson. Jackson inquired if Burr was involved. Fort replied that he did not know. Asked where he got his information, he said it came from Col. John Swartwout of New York. At this the General pricked up his ears, for Swartwout was well known as a political lieutenant of Burr.

Impressed and shocked, Jackson acted with characteristic directness. He ordered Coffee to accept no more contracts from Burr. He penned a letter to Burr in strong terms, telling him of his suspicions and warning him that until they were cleared from his mind he wished no further intimacy to exist between them.

While Jackson had only suspicions of Burr he appears to have been convinced of the guilt of Wilkinson, whom he had known in years past, with whom he had had business dealings, and for whom he had no love. To Gov. William C. C. Claiborne, of the New Orleans territory, he dispatched a dramatic warning: “Indeed I fear treachery has become the order of the day.... Put your town in a state of defense. Organize your militia and defend your city as well against internal enemies as external.... Be upon the alert; and keep a watchful eye upon the General [Wilkinson] and beware of an attack as well from our own country as Spain.” In his idle moments at the Hermitage between horse races and duels General Jackson must have been dipping into Shakespeare. The letter continued: “I fear there is something rotten in the State of Denmark.... Beware the month of December. I love my country and government, I hate the Dons; I would delight to see Mexico reduced; but I will die in the last ditch before I yield a foot to the Dons, or see the Union disunited. This I write for your own eyes, and for your safety; profit by it and the Ides of March remember.”

To Jackson’s demand for an explanation Burr gave prompt attention. According to the General he answered “with the most sacred pledges that he had not, nor never had, any views inimical or hostile to the United States, and whenever he was charged with the intention of separating the Union, the idea of insanity must be ascribed to him.”

General Jackson was not the only one demanding reassurances from Burr. When Burr was about to appear before the Kentucky Grand Jury at Frankfort he asked Henry Clay to defend him. Clay, too, wanted to hear from Burr’s own lips whether there was any substance to the charges that had been preferred by Daveiss and the _Western World_ before accepting the commission. From Burr he got this categorical denial: “I have no design, nor have I taken any measure, to promote a dissolution of the Union or a separation of any one or more States from the residue.... I do not own a musket nor a bayonet, nor any single article of military stores, nor does any person for me, by my authority or with my knowledge.... Considering the high station you now fill in our national councils, I have thought these explanations proper, as well as to counteract chimerical tales, which malevolent persons have so industriously circulated, as to satisfy you that you have not espoused the cause of a man in any way unfriendly to the laws, the government or the interests of his country.”

Burr’s friend Senator John Smith, of Kentucky, also had expressed misgivings. To him Burr wrote: “I was greatly surprised and really hurt by the unusual tenor of your letter of the 23rd [October], and I hasten to reply to it as well for your satisfaction as my own. If there exists any design to separate the Western from the Eastern states, I am totally ignorant of it. I never harbored or expressed any such intention to anyone, nor did any person ever intimate such design to me.”

Following his exoneration by the Grand Jury in Kentucky, Burr went back to Nashville and called once more at the Hermitage. The General was not at home, but the visitor got a cool reception from Rachel. She evidently was not entirely satisfied by his written explanation to the General. Burr then put up at the tavern at nearby Clover Bottom where Jackson had a store. There he was confronted by Jackson and John Coffee and again protested he had no object in view except what was sanctioned by legal authority, and that, when the time came, he would produce the Secretary of War’s orders. According to one account not mentioned by Jackson in his letter to Campbell, Burr drew from his pocket a blank commission signed by Jefferson saying, “Gentlemen, I suppose this will satisfy you.”

Jackson concluded his letter to Campbell “... if he [Burr] is a traitor, he is the basest that ever did commit treason, and being tore to pieces and scattered to the four winds of heaven would be too good for him.”

Campbell turned the letter over to Jefferson. It may well have been responsible for the President’s declaration that Tennessee was faithful and “particularly General Jackson.”

At Clover Bottom Burr’s persuasiveness and apparent frankness dissipated the worst of Jackson’s suspicions. So much so that when Burr, using the boats that Jackson’s firm had built, dropped down the river, Rachel Jackson’s 17-year-old nephew, Stokely D. Hays, was permitted to go along. In later years Hays testified that he carried a letter to Governor Claiborne and that he had instructions from the Jacksons to leave the expedition if he should discover any action on its part that was inimical to the Government.

Jefferson’s expressed confidence in General Jackson, inspired by the letter to Representative Campbell, alas! came too late. All sorts of rumors were reaching the Government in Washington. One which was taken seriously came from a Captain Read, of Pittsburgh, who asserted that upon his honor he was firmly persuaded that “large bodies of troops from Tennessee, with General Andrew Jackson at their head, were in full march to join the traitors.” Perhaps Washington had also received reports of Burr’s visits to the Hermitage, which would have lent color to the charge. Indeed, Jackson’s complicity in the plot was so fully accepted in the East that the Richmond _Enquirer_, while rejoicing that Wilkinson had been “tampered with unsuccessfully” added that “we must acknowledge that we have entertained involuntary suspicions of him as well as of a militia general in Tennessee.” It regretted that it could not also withdraw its suspicions of the militia general.

So it came about that when Secretary of War Dearborn found it necessary to communicate with his subordinate in Tennessee on the subject of the nation’s defense, he assumed he was writing to a man whose loyalty was seriously questioned.

Prefacing his letter on his belief that an unlawful enterprise against the Government had been commenced, Dearborn stated hesitantly that “it is presumed that the Proclamation of the President ... will have produced every exertion ... and that you will have been among the most jealous opposers of any such unlawful expedition.” He then went on to say: “About Pittsburgh it is industriously reported among the adventurers, that they are to be joined, at the mouth of the Cumberland, by two regiments under the command of General Jackson.” He concluded: “... such a story might afford you an opportunity of giving an effectual check to the enterprise if not too late.”

Little did the Secretary of War understand the man to whom he was writing. The suspicion of guilt contained in the letter would have been calculated to arouse even the mildest of men. But Andrew Jackson was not a mild man. He was least mild when his honor was in question. The General took up his pen, but his emotions were too aroused to permit orderly thinking. He had to make several drafts of a reply before he settled on one that satisfied him. It would require an exhaustive search to find anywhere as bold and unrestrained an answer from a subordinate to his superior as the one Jackson directed to the Secretary of War.

Wrote Jackson: “You stand convicted of the most notorious and criminal acts of dishonor, dishonesty, want of candour and justice. You say, Sir, that it is industriously reported among the adventurers that they are to be joined at the mouth of the Cumberland by two regiments under the command of General Jackson. Such a story might afford him an opportunity of giving an effectual check to the enterprise, if not too late.

“After I have given the most deliberate consideration to your expressions ... I cannot draw from them any other conclusion but this: that you believe me concerned in the conspiracy and that I was fit subject to act the traitor of traitors, as others have done [the reference was to Wilkinson], and that the Secretary of War could buy me up without honor.” Dearborn did not answer the letter.

To his friend Patton Anderson, Jackson wrote: “I have received some communications from the President and the Secretary of War. It is the merest old-woman letter from the Secretary you ever saw.” Then he turned on Wilkinson: “Wilkinson has denounced Burr as a traitor, after he found that he was implicated. This is deep policy. He has obtained thereby the command of New Orleans, the gunboats armed; and his plan can be executed without resistance. But we must be there in due time, before our fortifications can be erected, and restore to our government New Orleans and the western commerce.” Then, as an afterthought: “The Secretary of War is not fit for a granny.”

General Jackson had taken one other precautionary measure. He had sent a messenger to Captain Bissell, who commanded the Federal post of Fort Massac on the Ohio River a short distance above its confluence with the Mississippi, warning him of the approach of Burr’s forces and urging him not to let any warlike party go past him down the river. He added that if Bissell should need help his troops were ready to march.

From Captain Bissell he shortly received a curt reply to the effect that Burr had already arrived at Massac, that his party showed no evidence of being on a warlike mission and had been permitted to proceed down the river.

Already Burr’s protestations of innocence had begun to have their effect on the General and now this report from Bissell strengthened his conviction of Burr’s sincerity. From then on in Jackson’s judgment Wilkinson, and not Burr, was the real culprit, and he acted accordingly.

In the ambitious roundup of witnesses that followed the Chief Justice’s demand on the prosecution for more evidence, General Jackson was caught and summoned by the lawyers of the Government to testify against Burr. But, contrary to the Government’s expectations, he turned out to be the noisiest of Burr’s champions, in the same breath attacking the Government and defending Burr in the very shadow of the Capitol for the benefit of anybody who chose to hear. Richmond’s best people already were aligned with Burr and needed no exhortations. But Jackson’s arguments were directed to the masses who up to this time had been clamoring for Burr’s blood. Jackson, too, spoke as a Republican to Republicans. Such a man was highly dangerous. To his friend Patton Anderson he wrote from Richmond on June 17: “I am sorry to say that this thing has in part assumed the shape of a political persecution.” No wonder then that, after bringing him all the way from Tennessee to Richmond, once the Government’s lawyers had heard about the speech, the prosecution decided it was best not to let him testify.

But the mischief went beyond the Burr trial. The break between Jackson and the Jefferson Administration was never mended. It was inherited by James Madison with the result that when the War of 1812 broke out the Government was reluctant to use their most competent general when he was sorely needed. Had Jackson commanded on the Canadian front the story might have been different.

_Chapter_ VIII

The Grand Jury had been selected. Counsel for the prosecution and the defense were present with the one important exception of Luther Martin. The audience was packed into the courtroom, impatient for the spectacle to go on. But there was an impelling cause for delay--the Government’s star witness had not turned up. Government’s counsel offered reassurances, yet they could not hide the fact that they did not know just where General Wilkinson was.

It is a considerable distance from New Orleans to Richmond, and, at the turn of the nineteenth century, transportation was primitive. One route Wilkinson might take was overland through wildernesses and by tortuous roads and trails. It had taken Burr and his captors three weeks to make the journey from Alabama to Virginia. It was more probable that the portly Major General, who liked his comfort, would choose a sea voyage. But that would put him at the mercy of wind and tide. To add to the uncertainty, the General was an inveterate procrastinator with an utter disregard for time.

Counsel for the defense made the most of the prosecution’s embarrassment. They enlarged upon the great inconvenience members of the Grand Jury were being put to, and that of the many witnesses waiting to be called. They expressed doubt as to whether Wilkinson would ever show up. Many thought him as guilty as Burr. Might he not prefer to flee the country rather than face Aaron Burr in person and possible exposure in Richmond?

Hay pleaded that allowance be made for a man “of General Wilkinson’s age and bulk to travel to this city.” To which Mr. Randolph of the defense retorted: “Surely there is enough time to travel from New Orleans to this city in seventeen days, even with the gigantic ‘bulk’ of General Wilkinson himself.”

General Wilkinson’s protracted absence left a void that somehow had to be filled. Mr. Hay of the prosecution was the first to try to fill it. When court met on the morning of Monday, May 25, he offered a motion that Colonel Burr be committed for treason. His contention was that new evidence had appeared since the Chief Justice refused commitment for treason earlier in the proceedings.

The defense immediately protested, Mr. Botts acting as spokesman. The motion, he declared, took them completely by surprise. It was their understanding that no such action was to be taken by either side without previous consultation. And here was the prosecution breaking the agreement. What was more, if Mr. Hay’s motion were granted it would mean taking away from the Grand Jury a task obviously its responsibility and giving it to the Chief Justice.

Here Mr. Randolph, the elder statesman, intervened to reinforce young Botts. Never, he asserted, in his thirty years of practice at the bar had he heard such an astounding proposal.

Mr. Hay explained that his purpose for making the motion was merely to get the prisoner’s bail raised. Borrowing the explanation of Burr’s friends for Wilkinson’s absence, he said that with the bail as low as it was Burr, knowing he would soon have to face Wilkinson, might be tempted to run away. He intimated that he would not put it beyond Burr to make his exit in that craven manner.

Mr. Wickham scoffed at this. Afraid that Burr would run away, indeed! What the prosecution was actually trying to do was to introduce evidence in order to ruin the character of his client before the trial had even begun.

To Wickham’s conjecture Wirt retorted: “Evidence, Sir, is the greatest corrector of prejudice. Why, then, does Aaron Burr shrink from it?”

Mr. Randolph charged that the Government had issued an order “to treat Col. Burr as an outlaw, and to ruin and destroy him and his property.” Then the Colonel himself took up the argument opposing the introduction of affidavits at this point. He called attention to the great disadvantage he, as an individual, suffered in contrast to the Government of the United States which could exercise a compulsory process to obtain them.

The strategy of the defense was making itself clear. Burr was to be portrayed as the victim of a ruthless government which denied him his civil rights and employed the military to seize his property and threaten his life. It was to charge the Jefferson Administration with brutal disregard of the dignity of the humblest citizen, whose equality before the law was Jefferson’s proudest boast.

Next day the Chief Justice presented his opinion, and it was a victory for the prosecution. The Court, he declared, had the right to commit even after the Grand Jury had been chosen. Mr. Hay’s motion was sustained and now he could proceed to present the new evidence he claimed to have on Burr’s alleged treason.

On hearing the opinion, however, Hay stated that he did not wish to present evidence at this time, provided the prisoner’s bail were raised. He proposed that counsel for both sides meet to see if an agreement could be reached. The proposal was accepted and the meeting was held, but it ended in a deadlock. Hay then proceeded to present his evidence while the defense challenged each affidavit and witness. Its objection to the Wilkinson affidavit was sustained. Peter Taylor, Blennerhassett’s gardener, and Jacob Allbright, a laborer on the island, were permitted to testify. But when the affidavit of one Sergeant Dunbaugh was offered the defense again protested.

Judge Marshall here interposed to remark that it was becoming highly embarrassing to him to be issuing opinions on the admission of evidence before the trial had actually begun. To this Burr replied that if the Chief Justice was embarrassed he would consent to a higher bail. The sum of $10,000 was agreed upon, which put an end to this quite unnecessary sideshow. That is, unnecessary so far as the legal proceedings were concerned. But it had provided an opportunity for the counsel on both sides to posture before the audience and to do their best to influence public opinion for or against the accused according to the side they were on.

The digression did result in setting forth a statement of the fundamental issue that was to be iterated and reiterated during the trial: what was treason? In the course of his argument Mr. Botts outlined the definition of treason as it is set forth in the Constitution.

He stated that treason is either levying war against the United States or else giving aid and comfort to the enemy. But since in the present instance the United States was at peace with the world, giving aid and comfort to the enemy was ruled out.

That left the charge of levying war. But, says the Constitution, there must be an “overt act.” Further that act must be proved by two witnesses, and it must have occurred in the district in which the case was being tried. All of these things, insisted Mr. Botts, had to be proved by the Government against Burr if he was to be found guilty of treason.

Mr. Botts contended further that the first obligation of the prosecution was to prove the overt act. Until that act was proved, no other evidence was admissible.

Nothing would be more damaging to the prosecution than a ruling of the Court sustaining the contention of the defense. The prosecution’s plan was to present the evidence chronologically, introducing all the scheming and plotting that had been common gossip during the past few years, and gradually working up to a climax. Colonel Burr and his counsel touched a tender spot when they challenged this procedure.

At this juncture the defense received valuable reinforcement through the arrival of Luther Martin of Maryland. Mr. Martin was a lawyer of exceptional talent. A native of New Jersey, he had been educated at Princeton from which he graduated with high honors in the class of 1766, six classes ahead of Aaron Burr. At the age of thirty he was Attorney General of Maryland, from which high office he resigned to build up a lucrative practice in Baltimore. Elected a delegate from Maryland to the Constitutional Convention, he showed his courage and his scorn for conformity by defying the powerful Virginia delegation, headed by Washington, and championing the cause of the smaller states. His service in the Convention, valuable as it turned out to be, had more recently been overshadowed by his stalwart defense of Judge Chase in the impeachment proceedings.

Another asset for the business in hand was Mr. Martin’s warm friendship for Burr and his inveterate hatred of Thomas Jefferson. In politics Martin was a Federalist; added to his political differences with the President was a personal grudge resulting from an injury quite unconsciously inflicted by Mr. Jefferson.

Luther Martin married Maria Cresap, a daughter of Col. Michael Cresap, a frontiersman of Allegheny County, Maryland. In his “Notes on Virginia” Jefferson included the eloquent speech of the Indian chieftain Logan, who had befriended the early settlers yet whose wife and children had been butchered by the whites. Jefferson’s purpose in introducing this classic piece of rhetoric was to call attention to the nobility of the red man. He was not aware that responsibility for the murder had been pinned on Colonel Cresap, Martin’s father-in-law. Martin voiced his resentment in a bitter letter to a Philadelphia newspaper, but this public outpouring was not sufficient in itself to erase the grudge he held against Jefferson.

Mr. Martin’s brilliance was offset by an untidy dress, coarseness of speech and manner, and an addiction to spirits that earned him the nickname “Old Brandy Bottle.” His capacity was phenomenal, and though he imbibed freely this did not seem to dull his wit or befuddle his mind. He made his entrance into the lists in Richmond as a foreigner, but, had he wished, he might have claimed kinship with his Virginia colleagues as a former student of Chancellor Wythe in Williamsburg and a member of the Virginia bar practicing briefly on the state’s eastern shore.

The business of Hay’s motion absorbed the attention of the Court for the better part of a week, but Wilkinson’s failure to appear continued to hold up proceedings. To a friend in New York Washington Irving wrote impatiently: “... you can little conceive the talents for procrastination that have been exhibited in this affair. Day after day we have been disappointed by the non-arrival of the magnanimous Wilkinson; day after day have fresh murmurs and complaints been uttered; and day after day are we told that the next mail will probably bring this noble self, or at least some account of when he may be expected.”

Finally the Court gave up hope of the immediate arrival of the General. The Chief Justice granted a recess of the Grand Jury for a week so that, as Irving put it, “they might go home, see their wives, and flog their Negroes.”

On Tuesday, June 9, the Jury was recalled and Court reconvened, but it had nothing to do. It was now the turn of the defense to provide diversion to keep the case from dying of inanition. Colonel Burr set things in motion by stating that he thought he might need for his defense a letter of General Wilkinson of October 21, 1806, addressed to President Jefferson, which had been mentioned by the President in his special message to Congress, and the President’s reply to the same. He also would like to have copies of the orders with reference to himself which had been issued to the Army and the Navy.

The Colonel said he had asked for the papers in Washington but without result. Therefore he requested the Chief Justice to issue a _subpoena duces tecum_ to the President of the United States demanding either that he supply the papers or else come into court with them himself.

Burr’s request called for quick thinking on the part of the District Attorney. How was Hay to protect his master from the indignity of a summons yet at the same time prevent his being exposed to a charge of concealing evidence? How was he to offer assurances without pledging the Government to go farther than the President might want it to go?

Mr. Hay settled on a delaying action. He expressed confidence that the Government would comply with the request if the Court should consider the papers pertinent. On the other hand he doubted whether the Court had the power to issue a _subpoena duces tecum_ to the President of the United States. And, suggested Mr. Hay, since the Government was perfectly willing to produce the papers if the Court decided they were pertinent, what need was there for issuing a subpoena at all? Such procedure he thought would be a waste of precious time.

Mention of time wasting brought a shout of derision from the defense. The prosecution, they retorted, had wasted enough of it. And suppose the Government in Washington--by which they meant Mr. Jefferson--turned out to be less obliging than the District Attorney? The Chief Justice here remarked somewhat wryly that the _subpoena duces tecum_ usually was requested in cases where it was anticipated that the papers asked for would not be produced. He inquired directly of the District Attorney whether the prosecution would consent to the issuance of the subpoena. On Hay’s refusal to consent the Chief Justice called for argument.

There followed a prolonged debate, in which the Chief Justice allowed each lawyer to say his say with no apparent time limit. The situation was a delicate one for Mr. Jefferson. If he were to answer the subpoena by complying with a demand to appear in court in person the executive branch of the Government would be making abject surrender to the judiciary. If, on the other hand, he were to claim an exemption, he--the champion of equality of all men--would be claiming a special privilege which even the King of England hesitated to exercise.

The Government’s counsel therefore did not go so far as to deny that the President could be called. But Mr. Hay insisted that the defense had to show that the papers were relevant and material. Further, he contended that the President had a right to reserve any portion of the letters requested whose production in court he considered detrimental to the interests of the United States. Nor was Mr. Hay sure the President was under any obligation to present a letter that had been addressed to him privately. To this, lawyers of the defense replied that in his message to Congress Mr. Jefferson had stated that the letter was addressed to him not as a private individual but as President of the United States. Mr. Hay suggested that a copy of the letter might do. Mr. Wickham of the defense said they would not have it that way. They demanded the original.

The debate gave Luther Martin the opportunity to chastise Mr. Jefferson for which he had impatiently been waiting since his entry into the proceedings. The President, he asserted, had undertaken to prejudge Mr. Martin’s client by declaring that “of his guilt there can be no doubt.” He had assumed the knowledge of the Supreme Being himself, and pretended to search the heart of Mr. Martin’s highly respected friend.

The President, declared Mr. Martin, had proclaimed Colonel Burr a traitor in the face of the country which had rewarded him. He had “let slip the dogs of war, the hell-hounds of prosecution to hunt down my friend.” And would the President of the United States, who had raised all this absurd clamor, pretend to keep back the papers which were wanted for this trial where life itself was at stake?

It was, continued Mr. Martin, a sacred principle that in all such cases the accused had a right to all the evidence needed for his defense. Then, releasing his venom on Mr. Jefferson, he exclaimed: “Whoever withholds willfully information that would save the life of a person charged with a capital offense, is substantially a murderer, and so recorded in the register of Heaven.”

Mr. Wirt of the prosecution jumped to his feet to express his astonishment at the unrestrained language used by Mr. Martin. He even had the temerity to attack the Chief Justice for permitting it in his Court. Suppose, he said, there were foreigners present accustomed to regular government in their own country. What would they infer from hearing the Federal Administration thus reviled before the Federal judiciary and the Administration likened to “blood hounds hunting the man with a keen and savage thirst for blood”?

“Sir,” protested Wirt, looking squarely at Judge Marshall, “no man, foreigner or citizen, who hears this language addressed to the Court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the Court.” He hoped the Court would compel a decent respect for that government of which they themselves formed a branch.

As for tracking the accused with bloodhounds thirsting for blood, Mr. Wirt wished to make it clear that, for their part, the prosecution wished only a fair trial of the case. “If the man be innocent, in the name of God let him go; but while we are on the question of his guilt or innocence, let us not suffer our attention and judgment to be diverted and distracted by the introduction of other subjects foreign to the inquiry.”

For three days opposing counsel held forth until the Chief Justice, with a sigh of exhaustion, announced that he had heard enough arguments on which to base a sound opinion. He then proceeded to deliver it. If, said Judge Marshall, upon any principle the President could be construed to stand exempt from the general provisions of the Constitution, it would be because his duties as chief magistrate demanded his whole time for national objects. But, he observed, it was apparent that this demand “was not unremitting.”

The last remark was a sly dig at Mr. Jefferson for spending several months every summer away from Washington at Monticello, his country estate in Albemarle County, Virginia.

Now, continued Judge Marshall, if the public’s demand on the President’s time should exist when his attendance at court was required, it could be sworn to on the return of the subpoena. It might serve as an excuse for not obeying the Court. But it did not serve as a reason for not issuing the subpoena.

The Chief Justice now assumed an apologetic attitude. It could not be denied, he said, that to issue a subpoena to a person filling the exacting position of chief magistrate was a duty which would be dispensed with much more cheerfully than it would be performed. But if it was a duty the Court could have no choice in the case. He recognized that the right to call the President into court could be abused. But, he assured, “the guard furnished to this high officer to protect him from being harassed by vexatious and unnecessary subpoenas, is to be looked for in the conduct of the Court after those subpoenas have been issued.”

In short, what Judge Marshall said was that the decision as to whether it was appropriate for Mr. Jefferson to appear in Court rested with the Chief Justice, not with the President.

The Chief Justice went on to defend his position. “It is not,” he said, “for the Court to anticipate the event of the present prosecution. Should it terminate as is expected on the part of the United States, all those who are concerned in it should certainly regret that a paper, which the accused believed to be essential to his defense; which may, for aught that now appears, be essential, had been withheld from him ... it would justly tarnish the reputation of the Court which had given its sanction to its being withheld.”

He therefore ordered that the _subpoena duces tecum_ be issued to the President of the United States, or such of the secretaries of the departments as might have the paper mentioned.

The Chief Justice had hardly finished delivering his opinion when Mr. MacRae was up, clamoring for recognition. Unless his ears had deceived him, he said, he had heard the Chief Justice remark that should the case terminate “as is expected on the part of the United States.” Against any such remark Mr. MacRae protested with all his might.

“The impression,” he said, “which has been conveyed by the Court that we not only wished to have Aaron Burr accused, but that we wished to convict him, is completely abhorrent to our feelings.” The prosecution, he insisted, was interested only that Burr be tried.

Judge Marshall did not immediately repudiate the comment. On the contrary, he defended it on the ground that he had inferred as much from remarks made by them assuming the guilt of the prisoner. But later, after reflection, he thought better of it. At the close of Court he called the reporters to him and observed that he had no desire that the words complained of by Mr. MacRae should remain in the written opinion and so he had expunged them.

However impelling the demand on the President may have been to give his time to other official matters, it did not keep him from paying close attention to what was going on in Richmond. Messengers were constantly passing back and forth between him and the District Attorney bearing suggestions from the President for trying the case and reports of the proceedings from Hay. No sooner, therefore, had the request for the papers been made by Colonel Burr than the President was so apprised.

Mr. Jefferson replied promptly that, reserving his right to decide independent of all other authority, what papers coming to him as President the public interest permitted to be communicated, he assured his readiness voluntarily to furnish on all occasions whatever the purposes of justice might require.

Mr. Jefferson said he was under the impression that General Wilkinson’s letter of October 21 and all other papers relating to the charges against Burr had been turned over to the Attorney General when he first went to Richmond in March. He took for granted they had been left with Hay. Since he could not remember exactly what was in the papers he would leave it to Mr. Hay to exercise his discretion as to what part to communicate and what part to withhold.

As to the requests for the orders to the Army and the Navy, the President observed that supplying them would amount to laying open the whole executive books. But he would get the Secretary of War to look at the records. He added that if the defendant supposed there were any facts within the knowledge of the heads of departments, or of himself, which could be useful to the defense he would be glad to provide depositions.

“As to our personal attendance at Richmond,” the President informed Hay, “I am persuaded it is sensible that paramount duties to the nation at large control the obligation of compliance with their summons in this case, as they would, should we receive a similar one to attend the trials of Blennerhassett and others in Mississippi territory, those instituted at St. Louis and other places on the western waters ... to comply with such calls would leave the nation without an executive branch.”

Feeling as he did the President was greatly annoyed when Judge Marshall’s opinion was reported to him, still obstinately maintaining that he should appear in court. After reflection he sat down and framed a letter to Hay presenting his arguments against obeying the subpoena. The Chief Justice, he complained, as was usual with him when an opinion was to be supported, right or wrong, dwelt much on smaller objections and passed over those which were solid. He had laid down the general position that all persons owe obedience to subpoenas. But, argued Mr. Jefferson, if the Constitution enjoined a particular officer to be always engaged in a particular set of duties, did not that supersede the general law, subjecting him to minor duties inconsistent with these? “The Constitution enjoins his constant agency in the concerns of six millions of people. Is the law paramount to this which calls on him in behalf of a single one?”

Mr. Jefferson applied the Judge’s doctrine to his own case. Suppose, he said, the sheriff of Henrico County (in which the Judge was domiciled) should summon him from court to quell a riot. Would the Judge abandon major duties to perform lesser ones? Then he got down to the root of the matter, which was the battle being waged between the executive and the judiciary.

“The leading principle of our Constitution,” he reminded, “is the independence of the legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary. But would the executive be independent of the judiciary if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?”

The President now came to the most personal part of the opinion in which the Chief Justice intimated that his duties were not unremitting. “If,” said Mr. Jefferson, “he alludes to our annual retirement from the seat of government, during the sickly season, he should be told that such arrangements are made for carrying on public business that it goes on as unremittingly there as if he were at the seat of government. I pass more hours in public business at Monticello than I do here every day and it is much more laborious, because all must be done in writing.”

Thus Mr. Jefferson excused himself from casting aside his official duties in Washington and departing posthaste to Richmond at the request of Aaron Burr and on the order of Judge Marshall. He still had to deal with his other tormentor, Luther Martin. The President was not very successful in concealing the fact that the vindictive attack of the Baltimore lawyer had gotten under his skin.

While Mr. Martin was shouting invectives against the President in Richmond there came into Mr. Jefferson’s hand a letter from a Mr. Graybill of Baltimore. Inquiry revealed that the writer was an old Revolutionary soldier who had set up as a flour merchant. According to the information reaching the President, Mr. Graybill was a man of respectable character whose word could be trusted implicitly. In his letter Mr. Graybill said that for more than a year it had been believed in Baltimore that Burr was engaged in some criminal enterprise and that Luther Martin knew all about it.

In his haste to even the score with Martin the President was carried away by the Graybill letter. He proposed to Hay that a subpoena be issued to Graybill to appear as a witness against Burr and, while Graybill was on the way, Hay might be considering how best to use his testimony. Then the President put forward a fantastic idea. How about summoning Luther Martin as a witness against Burr, meanwhile holding Graybill ready to confront Martin? How about the prosecution moving to commit Luther Martin as _particeps criminis_ along with Burr? Graybill, Mr. Jefferson was assured, would fix upon him misprision of treason at least. Mr. Jefferson did return to realities sufficiently to admit that there might be some doubt whether the prosecution could legally examine a witness to discredit its own witness. He recognized, too, that lawyers considered themselves privileged from being forced to breaches of confidence.

“At any rate,” concluded Mr. Jefferson, “his [Graybill’s] evidence will put down this unprincipled and impudent Federal bulldog, and add another proof that the most glamorous defenders of Burr are all his accomplices. It will explain why L.M. flew so hastily to the aid of his ‘honorable friend,’ abandoning his clients and their property during a session of a principal court in Maryland, now filled, so I am told, with the clamors and ruin of his clients.”

The District Attorney, wisely perhaps, ignored these chimerical suggestions from the White House.

Still another incident illustrated the zeal of the President of the United States to win a conviction against Colonel Burr. It will be recalled that Dr. Eric Bollman, the German adventurer, was one of the messengers dispatched to Wilkinson with the fateful letter which Wilkinson later disclosed; that when the conspiracy collapsed Wilkinson arrested him and Swartwout and shipped them east to Washington under arrest on charges of treason. Bollman shortly thereafter went to the President and denied some of the exaggerated charges against Burr that were being published in the newspapers. Bollman’s purpose was to show that the plan did not involve a division of the Union, but only an expedition against Spain. He was received by the President in the presence of Secretary of State James Madison, who listened sympathetically to what he had to say. The President suggested that Bollman put his oral statements in writing, which Bollman did. The German admitted later that, because of his difficulties with the English language, some of his statements may have been misleading. It was his understanding that Mr. Jefferson promised not to use them against him or to let them out of his keeping. Mr. Jefferson appears to have understood differently.

As early as May 20 the President wrote Hay that he was sending him some blank pardons that were to be filled out at Hay’s discretion “if you should find a defect of evidence and believe that this could supply it.” However, he cautioned Hay that they were not to be given to gross offenders “unless it be visible that the principal will otherwise escape.”

Bollman evidently was regarded by the President as a man whose testimony would be sufficiently important to justify his being given a pardon should he consent to turn State’s evidence. A week after sending the blank pardons to Hay he wrote him that: “If a bill [against Burr] be found and a trial had, his [Bollman’s] evidence is deemed entirely essential, and in that case his pardon is to be produced before he goes to book.” In short, Bollman was to be offered a pardon if he would testify against Burr. But Bollman was not so keen to betray his friend. Hay filled out the pardon; Bollman spurned it. Hay then wrote the President for instructions.

“You ask,” replied the President, “what is to be done if Bollman finally rejects his pardon, and the Judge decides it to have no effect. Move to commit him immediately for treason or misdemeanor.” There were times when the mild-mannered “Sage of Monticello” could be tough.

At this point the side play was interrupted by the arrival of the Government’s star witness, Major General James Wilkinson, Commander-in-Chief of the United States Army. In the excitement caused by his martial entry the _subpoena duces tecum_ was brushed aside and almost forgotten.

On the original subpoena, now in the Federal Courthouse in Richmond, is an indorsement in Burr’s handwriting indicating that he did not expect to bring the President into court. On the other hand, the language used by the Chief Justice in his opinion certainly indicated that he expected the President to appear in person. Certainly the President, in setting forth in his letter to Hay his reasons for not coming, indicated that he thought he had been summoned to appear. However, when the writ itself was drawn up it stated that neither the personal attendance of the President nor the other officers of government mentioned was required. When the critical moment came Marshall recoiled from a direct challenge.

Nevertheless a void of several days had been packed with dramatics. The lawyers had been given a chance to exercise their eloquence and the audience had been well entertained. More to the point, Mr. Jefferson had been unmercifully badgered. That probably was as much as Colonel Burr and his counsel expected anyway.

_Chapter_ IX

James Wilkinson was born of good English stock on a farm near Benedict, in southern Maryland, in 1757. A medical career was planned for the boy and he was put under a relative to study for the profession. This was followed by formal training in Philadelphia. A brief adventure into medicine was interrupted by the outbreak of the Revolution when young Wilkinson was seized with patriotic zeal, volunteered in a rifle company, and marched off to join the American forces in Boston.

This transition from a medical to a military career proved permanent. Wilkinson’s genius for self-advancement soon manifested itself. He was an extrovert who did not believe in hiding his light under a bushel. There may have been some doubt among his comrades as to his enthusiasm for engaging in hand-to-hand combat or making a desperate last stand, but none whatever as to his ability in ingratiating himself with his superiors.

He was aide successively to General Nathanael Greene and General Benedict Arnold and took part with the latter in the campaign against Quebec. On that strenuous expedition he first made the acquaintance of Aaron Burr. Unlike Burr he did not enjoy the distinction of having a general die in his arms, but his services were sufficiently noteworthy to lead to a promotion to lieutenant colonel.

The warrior’s next assignment was on the staff of General Horatio Gates who made him deputy adjutant general of the Army of the Northern Departments. It was then he first exhibited a fatal quality for appearing wherever intrigue was in the air. This instance was the Conway Cabal whose object was to cashier Washington and put Gates in his place. The Commander first got wind of it when Wilkinson, arriving in a garrulous mood at Lord Stirling’s headquarters, let out the contents of an incriminating letter from Conway to Gates. Wilkinson’s later version of the incident was that he deliberately made the disclosure. He was to develop an exceptional gift for shifting from the role of conspirator to patriot when the going got hot.

However deeply he may have been involved in the plot it did not interfere with his continued rise in the military. He was promoted to brigadier and appointed clothier-general of the American Army, but he neglected his work, drew a rebuke from Washington, and shortly thereafter resigned from the service.

Meanwhile Wilkinson had married Ann, daughter of John Biddle of Philadelphia, a merchant and innkeeper. His devotion to his wife was the one sincere and admirable feature of his life. He bought an estate in Pennsylvania and made a brief entry into local politics, serving as member of the State Assembly.

Like Burr, Wilkinson was extravagant, loved display, and lived beyond his means. In an age when heavy drinking was not uncommon his indulgence was sufficiently conspicuous to provoke comment. He was soon overwhelmed with debt and, following the example of many other men in the same predicament, decided to go west to recoup his fortunes. It was in Kentucky and the Southwest that he was destined to spend the rest of his life.

The Spaniards were then in possession of New Orleans, parts of the present Louisiana, the Floridas, Texas, and Mexico. They dreaded the crude American frontiersmen as the decadent Romans dreaded the Vandals and the Visigoths, expecting them at any time to swoop down, loot, destroy, and conquer. One of their defense measures was to seek out friends and informers among the Americans. In Wilkinson they found a willing collaborator. The Spaniards about this time closed the Mississippi to American goods coming down from the territories and the frontiersmen were indignant with the Spaniards--and with the indifference of their own government to their plight. It was then that the Spanish Plot took shape. Esteban Miro, Spanish Governor of Louisiana, fostered it by calling attention to the advantages to be gained by an establishment of a nation beyond the Alleghenies under the protection of Spain.