“The Burr Conspiracy” still remains after a hundred years an unsolved enigma. Yet whether Burr actually planned treason against the United States in the year of grace 1806 is after all a question of somewhat restricted importance. The essential truth is that he was by nature an adventurer who, in the words of Hamilton, “believed all things possible to daring and energy,” and that in 1806 he was a bankrupt and a social outcast to boot. Whether, therefore, his grandiose project of an empire on the ruins of Spanish dominion in Mexico involved also an effort to separate some part of the West from the Union is a question which, if it was ever definitely determined in Burr’s own mind, was determined, we may be sure, quite independently of any moral or patriotic considerations.
Burr’s activities after his term of public office ended in March, 1805, were devious, complicated, and purposely veiled, involving many men and spread over a large territory. ¹ Near Marietta on an island in the Ohio River, Burr came upon Harman Blennerhassett, a genial Irishman living in a luxurious and hospitable mansion which was making a heavy drain upon his already diminished resources. Here Burr, by his charm of manner and engaging conversation, soon won from the simple Irishman his heart and his remaining funds. He also made the island both a convenient rendezvous for his adherents in his ambitious schemes and a starting point for his own extended expeditions, which took him during the latter part of this year to Natchez, Nashville, St. Louis, Vincennes, Cincinnati, and Philadelphia, and back to Washington.
¹ An account of the Burr conspiracy will be found in Jefferson and his Colleagues, by Allen Johnson (in The Chronicles of America).
In the summer of 1806 Burr turned westward a second time and with the assistance of Blennerhassett he began military preparations on the latter’s island for a mysterious expedition. On the 29th of July, Burr had dispatched a letter in cipher to Wilkinson, his most important confederate. The precise terms of this document we shall never know, but apparently it contained the most amazing claims of the successful maturing of Burr’s scheme: “funds had been obtained,” “English naval protection had been secured,” “from five hundred to a thousand men” would be on the move down the Mississippi by the middle of November. Unfortunately for Burr, however, Wilkinson was far too expert in the usages of iniquity to be taken in by such audacious lying as this. He guessed that the enterprise was on the verge of collapse and forthwith made up his mind to abandon it.
Meanwhile exaggerated accounts of the size of Burr’s following were filtering to Washington, together with circumstantial rumors of the disloyalty of his designs. Yet for weeks Jefferson did nothing, until late in November his alarm was aroused by a letter from Wilkinson, dated the 21st of October. On the 27th of November the President issued a proclamation calling upon all good citizens to seize “sundry persons” who were charged with setting on foot a military expedition against Spain. Already Burr, realizing that the West was not so hot for disunion as perhaps he had supposed it to be, began to represent his project as a peaceful emigration to the Washita, a precaution which, however, came too late to allay the rising excitement of the people. Fearing the seizure of their equipment, thirty or forty of Burr’s followers under the leadership of Blennerhassett left the island in four or five flatboats for New Orleans, on the night of the 10th of December, and a few days later were joined by Burr himself at the mouth of the Cumberland. When the little expedition paused near Natchez, on the 10th of January, Burr was confronted with a newspaper containing a transcription of his fatal letter to Wilkinson. A week later, learning that his former ally, Wilkinson, had now established a reign of terror at New Orleans directed against his followers, and feeling no desire to test the tender mercies of a court-martial presided over by his former associate, Burr surrendered himself into the custody of the acting Governor of Mississippi Territory. But the refusal of the territorial grand jury to indict him suggested the hope that he might still escape from the reach of the law. He therefore plunged into the wilderness, headed for the Spanish border, and had all but reached his destination when he was recognized and recaptured at Wakefield, Alabama.
Owing to the peculiar and complicated circumstances which led up to it, Burr’s case was from the outset imbued with factional and partisan politics of the most extreme kind. While the conspiracy was at its height, Jefferson, though emphatically warned, had refused to lend it any credence whatever; but when the danger was well over he had thrown the whole country into a panic, and had even asked Congress to suspend the writ of habeas corpus. The Federalists and the President’s enemies within his own party, headed by the redoubtable Randolph, were instantly alert to the opportunity which Jefferson’s inexplicable conduct afforded them. “The mountain had labored and brought forth a mouse,” quoted the supercilious; the executive dragnet had descended to envelop the monster which was ready to split the Union or at least to embroil its relations with a friendly power, and had brought up—a few peaceful agriculturists! Nor was this the worst of the matter, contended these critics of the Administration, for the real source of the peril had been the President’s own action in assigning the command at New Orleans to Wilkinson, a pensioner of Spain, a villain “from the bark to the very core.” Yet so far was the President from admitting this error that he now attributed the salvation of the country to “the soldier’s honor” and “the citizen’s fidelity” of this same Wilkinson. Surely, then, the real defendants before the bar of opinion were Thomas Jefferson and his precious ally James Wilkinson, not their harried and unfortunate victim, Aaron Burr!
The proceedings against Burr occupied altogether some seven months, during which the sleepy little town of Richmond became the cynosure of all eyes. So famous was the case that it brought thither of necessity or out of curiosity men of every rank and grade of life, of every species of renown. The prosecution was in charge of the United States District Attorney, George Hay—serious, humorless, faithful to Jefferson’s interests, and absolutely devoid of the personal authority demanded by so grave a cause. He was assisted by William Wirt, already a brilliant lawyer and possessed of a dazzling elocution, but sadly lacking in the majesty of years. At the head and forefront of the defense stood Burr himself, an unerring legal tactician, deciding every move of the great game, the stake of which for him was life itself. About him were gathered the ablest members of the Richmond bar: John Wickham, witty and ingenious, Edmund Randolph, ponderous and pontifical, Benjamin Botts, learned and sarcastic, while from Baltimore came Luther Martin to aid his “highly respected friend,” to keep the political pot boiling, and eventually to fall desperately in love with Burr’s daughter, the beautiful Theodosia. Among the 140 witnesses there were also some notable figures: William Eaton, the hero of Derne, whom Burr’s codefendant, Blennerhassett, describes for us as “strutting about the streets under a tremendous hat, with a Turkish sash over colored clothes,” and offering up, with his frequent libations in the taverns, “the copious effusions of his sorrows”; Commodore Truxton, the gallant commander of the Constellation; General Andrew Jackson, future President of the United States, but now a vehement declaimer of Burr’s innocence—out of abundant caution for his own reputation, it may be surmised; Erick Bollmann, once a participant in the effort to release Lafayette from Olmutz and himself just now released from durance vile on a writ of habeas corpus from the Supreme Court; Samuel Swartwout, another tool of Burr’s, reserved by the same beneficent writ for a career of political roguery which was to culminate in his swindling the Government out of a million and a quarter dollars; and finally the bibulous and traitorous Wilkinson, “whose head” as he himself owned, “might err,” but “whose heart could not deceive.” Traveling by packet from New Orleans, this essential witness was heralded by the impatient prosecution, till at last he burst upon the stage with all the éclat of the hero in a melodrama—only to retire baffled and perplexed, his villainy guessed by his own partisans.
By the Constitution treason against the United States consists “only in levying war against them, or in adhering to their enemies, giving them aid and comfort,” and no person may be convicted of it “unless on the testimony of two witnesses to the same overt act, or on confession in open court.” The motion to commit Burr for treason thus raised at the outset the question whether in this case an “overt act” existed. Marshall, who held that no evidence had been shown to this effect, denied the motion, but consented to commit the prisoner on the lesser charge that he had attempted a military expedition against Spain. As this was a bailable offense, however, Burr was soon at liberty once more.
Nor was this the only respect in which the preliminary proceedings sounded a note of antagonism between the Chief Justice and the Administration which was to recur again and yet again in the months following. Only a few weeks earlier at Washington, Marshall had, though with some apparent reluctance, ordered the release of Bollmann and Swartwout, two of Burr’s tools, from the custody of the Federal authorities. Alluding in his present opinion to his reason for his earlier action, he wrote: “More than five weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the fact, if it exists. Why is it not proved? To the executive government is entrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety. It would be easy, in much less time than has intervened since Colonel Burr has been alleged to have assembled his troops, to procure affidavits establishing the fact.”
This sharp criticism brought an equally sharp retort from Jefferson, to which was added a threat. In a private letter of the 20th of April, the President said: “In what terms of decency can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve!… But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic!… All this, however, will work well. The nation will judge both the offender and judges for themselves.… They will see then and amend the error in our Constitution which makes any branch independent of the nation.… If their [the judges] protection of Burr produces this amendment, it will do more good than his condemnation would have done.” Already the case had taken on the color of a fresh contest between the President and the Chief Justice.