The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

Within the bar also sat that brave and noble man whose career of unbroken victories had made the most brilliant and honorable page thus far in the record of the American Navy – Commodore Thomas Truxtun. He was dressed in civilian attire.1130 By his side, clad as a man of business, sat a brother naval hero of the old days, Commodore Stephen Decatur.1131 A third of the group was Benjamin Stoddert, the Secretary of the Navy under President Adams.1132

In striking contrast with the dignified appearance and modest deportment of these gray-haired friends was the gaudily appareled, aggressive mannered Eaton, his restlessness and his complexion advertising those excesses which were already disgusting even the hard-drinking men then gathered in Richmond. Dozens of inconspicuous witnesses found humbler places in the audience, among them Sergeant Jacob Dunbaugh, bearing himself with mingled bravado, insolence, and humility, the stripes on the sleeve of his uniform designating the position to which Wilkinson had restored him.

Dunbaugh had gone before the grand jury on Saturday, as had Bollmann; and now, one by one, Truxtun, Decatur, Eaton, and others were sent to testify before that body.

Eaton told the grand jury the same tale related in his now famous affidavit.1133

Commodore Truxtun testified to facts as different from the statements made by "the hero of Derne"1134 as though Burr had been two utterly contrasted persons. During the same period that Burr had seen Eaton, he had also conversed with him, said Truxtun. Burr mentioned a great Western land speculation, the digging of a canal, and the building of a bridge. Later on Burr had told him that "in the event of a war with Spain, which he thought inevitable, … he contemplated an expedition to Mexico," and had asked Truxtun "if the Havanna could be easily taken … and what would be the best mode of attacking Carthagena and La Vera Cruz by land and sea." The Commodore had given Burr his opinion "very freely," part of it being that "it would require a naval force." Burr had answered that "that might be obtained," and had frankly asked Truxtun if he "would take the command of a naval expedition."

"I asked him," testified Truxtun, "if the executive of the United States were privy to, or concerned in the project? He answered emphatically that he was not: … I told Mr. Burr that I would have nothing to do with it… He observed to me, that in the event of a war [with Spain], he intended to establish an independent government in Mexico; that Wilkinson, the army, and many officers of the navy would join… Wilkinson had projected the expedition, and he had matured it; that many greater men than Wilkinson would join, and that thousands to the westward would join."

In some of the conversations "Burr mentioned to me that the government was weak," testified Truxtun, "and he wished me to get the navy of the United States out of my head;1135 … and not to think more of those men at Washington; that he wished to see or make me, (I do not recollect which of those two terms he used) an Admiral."

Burr wished Truxtun to write to Wilkinson, to whom he was about to dispatch couriers, but Truxtun declined, as he "had no subject to write about." Again Burr urged Truxtun to join the enterprise – "several officers would be pleased at being put under my command… The expedition could not fail – the Mexicans were ripe for revolt." Burr "was sanguine there would be war," but "if he was disappointed as to the event of war, he was about to complete a contract for a large quantity of land on the Washita; that he intended to invite his friends to settle it; that in one year he would have a thousand families of respectable and fashionable people, and some of them of considerable property; that it was a fine country, and that they would have a charming society, and in two years he would have doubled the number of settlers; and being on the frontier, he would be ready to move whenever a war took place…

"All his conversations respecting military and naval subjects, and the Mexican expedition, were in the event of a war with Spain." Truxtun testified that he and Burr were "very intimate"; that Burr talked to him with "no reserve"; and that he "never heard [Burr] speak of a division of the union."

Burr had shown Truxtun the plan of a "kind of boat that plies between Paulus-Hook and New-York," and had asked whether such craft would do for the Mississippi River and its tributaries, especially on voyages upstream. Truxtun had said they would. Burr had asked him to give the plans to "a naval constructor to make several copies," and Truxtun had done so. Burr explained that "he intended those boats for the conveyance of agricultural products to market at New-Orleans, and in the event of war [with Spain], for transports."

The Commodore testified that Burr made no proposition to invade Mexico "whether there was war [with Spain] or not." He was so sure that Burr meant to settle the Washita lands that he was "astonished" at the newspaper accounts of Burr's treasonable designs after he had gone to the Western country for the second time.

Truxtun had freely complained of what amounted to his discharge from the Navy, being "pretty full" himself of "resentment against the Government," and Burr "joined [him] in opinion" on the Administration.1136

Jacob Dunbaugh told a weird tale. At Fort Massac he had been under Captain Bissel and in touch with Burr. His superior officer had granted him a furlough to accompany Burr for twenty days. Before leaving, Captain Bissel had "sent for [Dunbaugh] to his quarters," told him to keep "any secrets" Burr had confided to him, and "advised" him "never to forsake Col. Burr"; and "at the same time he made [Dunbaugh] a present of a silver breast plate."

After Dunbaugh had joined the expedition, Burr had tried to persuade him to get "ten or twelve of the best men" among his nineteen fellow soldiers then at Chickasaw Bluffs to desert and join the expedition; but the virtuous sergeant had refused. Then Burr had asked him to "steal from the garrison arms such as muskets, fusees and rifles," but Dunbaugh had also declined this reasonable request. As soon as Burr learned of Wilkinson's action, he told Dunbaugh to come ashore with him armed "with a rifle," and to "conceal a bayonet under [his] clothes… He told me he was going to tell me something I must never relate again, … that General Wilkinson had betrayed him … that he had played the devil with him, and had proved the greatest traitor on the earth."

Just before the militia broke up the expedition, Burr and Wylie, his secretary, got "an axe, auger and saw," and "went into Colonel Burr's private room and began to chop," Burr first having "ordered no person to go out." Dunbaugh did go out, however, and "got on the top of the boat." When the chopping ceased, he saw that "a Mr. Pryor and a Mr. Tooly got out of the window," and "saw two bundles of arms tied up with cords, and sunk by cords going through the holes at the gunwales of Colonel Burr's boat." The vigilant Dunbaugh also saw "about forty or forty-three stands [of arms], besides pistols, swords, blunderbusses, fusees, and tomahawks"; and there were bayonets too.1137

Next Wilkinson detailed to the grand jury the revelations he had made to Jefferson. He produced Burr's cipher letter to him, and was forced to admit that he had left out the opening sentence of it – "Yours, postmarked 13th of May, is received" – and that he had erased some words of it and substituted others. He recounted the alarming disclosures he had so cunningly extracted from Burr's messenger, and enlarged upon the heroic measures he had taken to crush treason and capture traitors. For four days1138 Wilkinson held forth, and himself escaped indictment by the narrow margin of 7 to 9 of the sixteen grand jurymen. All the jurymen, however, appear to have believed him to be a scoundrel.1139

"The mammoth of iniquity escaped," wrote John Randolph in acrid disgust, "not that any man pretended to think him innocent, but upon certain wire-drawn distinctions that I will not pester you with. Wilkinson is the only man I ever saw who was from the bark to the very core a villain… Perhaps you never saw human nature in so degraded a situation as in the person of Wilkinson before the grand jury, and yet this man stands on the very summit and pinnacle of executive favor."1140

Samuel Swartwout, the courier who had delivered Burr's ill-fated letter, "most positively denied" that he had made the revelations which Wilkinson claimed to have drawn from him.1141 The youthful Swartwout as deeply impressed the grand jury with his honesty and truthfulness as Wilkinson impressed that body with his untrustworthiness and duplicity.1142

Peter Taylor and Jacob Allbright then recounted their experiences.1143 And the Morgans told of Burr's visit and of their inferences from his mysterious tones of voice, glances of eye, and cryptic expressions. So it was, that in spite of overwhelming testimony of other witnesses,1144 who swore that Burr's purposes were to settle the Washita lands and in the event of war with Spain, and only in that event, to invade Mexico, with never an intimation of any project hostile to the United States – so it was that bills of indictment for treason and for misdemeanor were, on June 24, found against Aaron Burr of New York and Harman Blennerhassett of Virginia. The indictment for treason charged that on December 13, 1806, at Blennerhassett's island in Virginia, they had levied war on the United States; and the one for misdemeanor alleged that, at the same time and place, they had set on foot an armed expedition against territory belonging to His Catholic Majesty, Charles IV of Spain.1145

This result of the grand jury's investigations was reached because of that body's misunderstanding of Marshall's charge and of his opinion in the Bollmann and Swartwout case.1146

John Randolph, as foreman of the grand jury, his nose close to the ground on the scent of the principal culprit, came into court the day after the indictment of Burr and Blennerhassett and asked for the letter from Wilkinson to Burr, referred to in Burr's cipher dispatch to Wilkinson, and now in the possession of the accused. Randolph said that, of course, the grand jury could not ask Burr to appear before them as a witness, but that they did want the letter.

Marshall declared "that the grand jury were perfectly right in the opinion." Burr said that he could not reveal a confidential communication, unless "the extremity of circumstances might impel him to such a conduct." He could not, for the moment, decide; but that "unless it were extorted from him by law" he could not even "deliberate on the proposition to deliver up any thing which had been confided to his honour."

Marshall announced that there was no "objection to the grand jury calling before them and examining any man … who laid under an indictment." Martin agreed "there could be no objection."

The grand jury did not want Burr as a witness, said John Randolph. They asked only for the letter. If they should wish Burr's presence at all, it would be only for the purpose of identifying it. So the grand jury withdrew.1147

Hay was swift to tell his superior all about it, although he trembled between gratification and alarm. "If every trial were to be like that, I am doubtful whether my patience will sustain me while I am wading thro' this abyss of human depravity."

Dutifully he informed the President that he feared that "the Gr: Jury had not dismissed all their suspicions of Wilkinson," for John Randolph had asked for his cipher letter to Burr. Then he described to Jefferson the intolerable prisoner's conduct: "Burr rose immediately, & declared that no consideration, no calamity, no desperation, should induce him to betray a letter confidentially written. He could not even allow himself to deliberate on a point, where his conduct was prescribed by the clearest principles of honor &c. &c. &c."

Hay then related what Marshall and John Randolph had said, underscoring the statement that "the Gr: Jury did not want A. B. as a witness." Hay did full credit, however, to Burr's appearance of candor: "The attitude & tone assumed by Burr struck everybody. There was an appearance of honor and magnanimity which brightened the countenances of the phalanx who daily attend, for his encouragement & support."1148

Day after day was consumed in argument on points of evidence, while the grand jury were examining witnesses. Marshall delivered a long written opinion upon the question as to whether a witness could be forced to give testimony which he believed might criminate himself. The District Attorney read Jefferson's two letters upon the subject of the subpœna duces tecum. No pretext was too fragile to be seized by one side or the other, as the occasion for argument upon it demanded – for instance, whether or not the District Attorney might send interrogatories to the grand jury. Always the lawyers spoke to the crowd as well as to the court, and their passages at arms became ever sharper.1149

Wilkinson is "an honest man and a patriot" – no! he is a liar and a thief; Louisiana is a "poor, unfortunate, enslaved country"; letters had been seized by "foulness and violence"; the arguments of Burr's attorneys are "mere declamations"; the Government's agents are striving to prevent Burr from having "a fair trial … the newspapers and party writers are employed to cry and write him down; his counsel are denounced for daring to defend him; the passions of the grand jury are endeavored to be excited against him, at all events";1150 Hay's mind is "harder than Ajax's seven fold shield of bull's hide"; Edmund Randolph came into court "with mysterious looks of awe and terror … as if he had something to communicate which was too horrible to be told"; Hay is always "on his heroics"; he "hopped up like a parched pea"; the object of Burr's counsel is "to prejudice the surrounding multitude against General Wilkinson"; one newspaper tale is "as impudent a falsehood as ever malignity had uttered" – such was the language with which the arguments were adorned. They were, however, well sprinkled with citations of authority.1151

CHAPTER IX

WHAT IS TREASON?

No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Constitution, Article III, Section 3.)

Such are the jealous provisions of our laws in favor of the accused that I question if he can be convicted. (Jefferson.)

The scenes which have passed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (Aaron Burr.)

That this court dares not usurp power is most true. That this court dares not shrink from its duty is no less true. (Marshall.)

While the grand jury had been examining witnesses, interesting things had taken place in Richmond. Burr's friends increased in number and devotion. Many of them accompanied him to and from court each day.1152 Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.1153 Fashionable Richmond was rapidly becoming Burr-partisan. In society, as at the bar, the Government had been maneuvered into defense. Throughout the country, indeed, Burr's numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, "even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests – or would make greater sacrifices to aid him than this man."1154 But this availed Burr nothing as against the opinion of the multitude, which Jefferson manipulated as he chose. Indeed, save in Richmond, this very fidelity of Burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his followers to aggressive action. On the streets, in the taverns and drinking-places, his adherents grew bolder. Young Swartwout chanced to meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower1155 shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On learning of the incident Jackson "was wild with delight."1156 Burr's enemies were as furious with anger. To spirited Virginians, only treason itself was worse than the refusal of Wilkinson, thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public impression of Wilkinson's cowardice. He challenged the General to a duel; the hero refused – "he held no correspondence with traitors or conspirators," he loftily observed;1157 whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the American armies as guilty of treachery, perjury, forgery, and cowardice.1158 The highest officer in the American military establishment "posted for cowardice" by a mere stripling! More than ever was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted, Wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward Burr; and he wrote to Jefferson in unctuous horror: "I had anticipated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour – … To my Astonishment I found the Traitor vindicated & myself condemned by a Mass of Wealth Character-influence & Talents – merciful God what a Spectacle did I behold – Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant."1159

Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. Accept I pray, my salutations and assurances of respect and esteem."1160

Before the grand jury had indicted Burr and Blennerhassett, Wilkinson suffered another humiliation. On the very day that the General sent his wailing cry of outraged virtue to the President, Burr gave notice that he would move that an attachment should issue against Jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.1161 The following day was consumed in argument upon the motion that did not rise far above bickering. Marshall ruled that witnesses should be heard in support of Burr's application, and that Wilkinson ought to be present.1162 Accordingly, the General was ordered to come into court.

James Knox, one of the young men who had accompanied Burr on his disastrous expedition, had been brought from New Orleans as a witness for the Government. He told a straightforward story of brutality inflicted upon him because he could not readily answer the printed questions sent out by Jefferson's Attorney-General.1163 By other witnesses it appeared that letters had been improperly taken from the post-office in New Orleans.1164 An argument followed in which counsel on both sides distinguished themselves by the learning and eloquence they displayed.1165

It was while Botts was speaking on this motion to attach Wilkinson, that the grand jury returned the bills of indictment.1166 So came the dramatic climax.

Instantly the argument over the attachment of Wilkinson was suspended. Burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.1167 Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony … had been impeached for perjury," or new testimony had been presented to the court.1168 For once in his life, Martin could not answer immediately and offhand. So that night Aaron Burr slept in the common jail at Richmond.

"The cup of bitterness has been administered to him with unsparing hand," wrote Washington Irving.1169 But he did not quail. He was released next morning upon a writ of habeas corpus;1170 the argument on the request for the attachment of Wilkinson was resumed, and for three days counsel attacked and counter-attacked.1171 On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the house occupied by Luther Martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men. Burr pleaded not guilty to the indictments against him, and orders were given for summoning the jury to try him.1172

Finally, Marshall delivered his written opinion upon the motion to attach Wilkinson. It was unimportant, and held that Wilkinson had not been shown to have influenced the judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on August 3 from Wood County, in which Blennerhassett's island was located, and where the indictment charged that the crime had been committed.1173

Five days before Marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of Burr, how unshakable the tenacity with which Jefferson pursued him.

On June 22, 1807, the British warship, the Leopard, halted the American frigate, the Chesapeake, as the latter was putting out to sea from Norfolk. The British officers demanded of Commodore James Barron to search the American ship for British deserters and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. The Chesapeake had not been fitted out, was unable to reply, and finally was forced to strike her colors. The British officers then came on board and seized the men they claimed as deserters, all but one of whom were American-born citizens.1174

The whole country, except New England, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. Quickly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,1175 committed by a foreign power in American waters, weaken for a moment the President's determination to punish the native disturber of our domestic felicity.

The news of the Chesapeake outrage arrived at Richmond on June 25, and John Randolph supposed that, of course, Jefferson would immediately call Congress in special session.1176 The President did nothing of the kind. Wilkinson, as Commander of the Army, advised him against armed retaliation. The "late outrage by the British," wrote the General, "has produced … a degree of Emotion bordering on rage – I revere the Honourable impulse but fear its Effects – … The present is no moment for precipitancy or a stretch of power – on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage – … The efforts made here [Richmond] by a band of depraved Citizens, in conjunction with an audacious phalanx of insolent exotics, to save Burr, will have an ultimate good Effect, for the national Character of the Ancient dominion is in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within."

Wilkinson tells Jefferson that he is coming to Washington forthwith to pay his "respects," and concludes: "You are doubtless well advised of proceedings here in the case of Burr – to me they are incomprehensible as I am no Jurist – The Grand Jury actually made an attempt to present me for Misprision of Treason – … I feel myself between 'Scylla and Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr & his Conspirators for performing it – "1177