In the spring of 1805, after leaving office, Burr embarked on a tour of the West that took him as far south as New Orleans and as far west as St. Louis. The excursion left some suspicious of his agenda, and led to the publication of a series of anonymous “Queries” that were reprinted in newspapers across the country. “How long will it be before we shall hear of Col. Burr being at the head of a
revolution
party on the western waters?” went one pointed question. Others suggested that the former vice president might be seeking to form his own empire in the West, the reduction and despoiling of Mexico, or both. At the time of their publication, however, the “Queries” were viewed by many as a baseless partisan attack. William Duane, editor of the Philadelphia
Aurora,
wrote that the perfidious designs alleged of Burr were unfairly associated with him because he was “exactly such a character as would be open to the suspicions of all parties,” and that his low state might be presumed “to render him fit for any enterprise, however desperate.”
Just what Burr was doing on this trip out West remains unclear. He may simply have been speculating on land, or sniffing out the possibility of a political resurrection, or even planning an invasion of Mexico. And though President Jefferson received information that something far more sinister was in the works, he did not appear overly concerned. In fact, he had Burr to dinner soon after his return in the fall of 1805. What is certain, though, is that upon his return Burr was once again entreating with Britain, assuring Anthony Merry that he had found the West ripe for revolution, and that money and ships were still urgently needed to get the enterprise started.
When Burr learned that British assistance would not be forthcoming, he turned to Spain. Through his fellow conspirator, former senator Jonathan Dayton of New Jersey, he informed the Spanish minister, Marqués Casa Yrujo, that his separatist schemes in the West were to be preceded by an attack on the federal government. The plan, as recorded by Yrujo, was “by degrees” to introduce into Washington “a number of men in disguise, well armed.” These desperadoes were to seize President Jefferson and other top officials, plunder the local banks, and take possession of the federal arsenal. If there was no resistance to this coup, Burr would “negotiate with the individual states” an arrangement under which he and his confederates would rule the country. If, on the other hand, resistance arose, they would burn the Navy Yard, saving only enough ships to carry them and their plunder to New Orleans. There they would at once “proclaim the emancipation of Louisiana and the Western States.”
Though Thomas Jefferson had dismissed a number of earlier warnings he had received concerning Burr's schemes, thinking them politically motivated and unreliable, he later said that he got the “very first intimation of the plot” to divide the Union in a letter from Colonel George Morgan, which he received on September 15, 1806. Burr had visited Morgan's farm outside Pittsburgh on a second and final trip to the West, and tried to enlist his sons in a military expedition he was planning. He also spoke of the future independence of the West, according to Morgan, while disparaging the federal government.
About a month after Morgan's report, Secretary of State James Madison received a letter from General Presley Neville and Judge Samuel Roberts repeating what Morgan had told them about his discussions with Burr. “In short,” they wrote, “the whole tenor of [Burr's] conversation was such as to leave a strong impression on the minds of those gentlemen with whom these conversations were held that a plan was arranging or arranged for effecting the separation of the Union, in which Colonel Burr seemed to have no ordinary interest.”
Jefferson got additional information about a conspiracy over the next month, the most damaging of which came from General William Eaton, a hero of the Tripolitan War, who claimed that Burr had offered him a top position in the planned quest to attack Mexico and dismember the West. Eaton, who declined the offer, would later be the first witness for the prosecution at Burr's treason trial.
Now thoroughly convinced of Aaron Burr's treachery, the president ordered confidential letters to be written to the governors and district attorneys in the West to have the former vice president “strictly watched, and on his commanding any overt act unequivocally, to have him tried for treason, misdemeanor, or whatever other offence” his actions might amount to. No immediate action was to be taken, though. “We give [Burr] all the attention our situation admits,” Jefferson wrote; “as yet we have no legal proof of any overt act which the law can lay hold of.”
Burr, meanwhile, was keeping himself quite busy out West, preparing for an expedition that would make him either a criminal (if he merely invaded Mexico), or a traitor (if he invaded Mexico
and
tried to sever the Union). Among his many visits was one to perhaps his most gullible supporter, Harman Blennerhassett, whose private island in the Ohio River Burr intended to use as the launching ground for his assault. In August 1806, he and Blennerhassett contracted for the construction of fifteen bateaux, “ample enough to convey five hundred men,” along with “a large keelboat for the transportation of provisions,” and other supplies. Blennerhassett happily footed the bill, and as a reward for all his services, Burr offered him the post of ambassador to Britain if his planned empire ever came to be. Blennerhassett hardly needed the inducement. He was already Burr's faithful ally, and worked tirelessly to recruit others to the cause. According to later testimony, he told two possible recruits, brothers John and Alexander Henderson, that “under the auspices of Col. Burr, a separation of the Union was contemplated;” that New Orleans was to be seized, its “bank or banks” emptied, its military stores requisitioned, and the city itself and the country around it “revolutionized in the course of nine months.” Blennerhassett also told the brothers, according to their testimony, that “if Mr. Jefferson was in any way impertinent, . . . Burr would tie him neck and heels, and throw him into the Potomac.”
The activities of Burr, Blennerhassett, and others associated with them did not escape notice, generating all manner of rumor and speculation, inflammatory press reports, and the unwelcome attention of Kentucky's district attorney Joseph Hamilton Daviess. The federal prosecutor was eager to bring down Burr and thwart whatever enterprise he was planning, but he lacked the evidence to do it. A grand jury was impaneled at his request, but Daviess had to move for its discharge when a key witness failed to show. Undeterred, he renewed his motion for a grand jury inquiry two weeks later. Burr retained Henry Clay, recently elected to the U.S. Senate, to represent him, and wrote to the senator to reassure him of his innocence: “I have no design, nor have I taken any measures to promote a dissolution of the Union.” Although Clay agreed to represent Burr, he later became convinced of his client's guilt. The citizens of Kentucky sitting on the grand jury remained unconvinced, however, and on December 5, 1806, found no cause against the former vice president. Burr was to remain a free man for the time being.
It was around this time that one of Burr's chief cohorts, General James Wilkinsonâcommander in chief of the U.S. Army, governor of the northern part of the Louisiana Territory recently purchased from France, and notorious double-dealer (he was a secret agent for Spain)âdecided to betray Burr and cooperate with the government. In a letter to President Jefferson, Wilkinson claimed to be staggered by “the magnitude of [Burr's] enterprise, the desperation of the plan, and the stupendous consequences” it held. Perhaps Wilkinson, described by one historian as “the most skillful and unscrupulous plotter this country has ever produced,” turned on Burr because he realized the Western schemes with which he had been so closely involved were doomed to failure, and he wanted to be on the winning side. Though Jefferson had rightly been suspicious of Wilkinson in the past, and believed he exaggerated the size and scope of Burr's plot, the president heeded his warnings.
Several days after receiving Wilkinson's reports, Jefferson issued a proclamation alerting the nation to a conspiracy. Without naming Burr specifically, he lumped together the “sundry persons” whom he had been informed were fitting out and arming vessels, collecting military equipment and provisions, and “deceiving and seducing honest and well-meaning citizens, under various pretences, to engage in their criminal enterprises.” The president warned all citizens against participating in such activities, under penalty of prosecution, and enjoined all public officials to help prevent a criminal uprising.
Although Jefferson never mentioned the forced separation of the Western states in his public proclamation, or in his address to Congress a month laterâintentionally limiting his comments to any plan to invade Mexicoâhe later said he interpreted Burr's plot this way: “It appeared that he contemplated two distinct objects. . . . One of these was the severance of the Union of those States by the Allegany [sic] mountains; the other an attack on Mexico.” In reference to some 350,000 acres Burr had purchased on the Western frontier, Jefferson said, “This was to serve as the pretext for all his [military] preparations, an allurement for such followers as really wished to acquire settlements in that country, and a cover under which to retreat in the event of a final discomfiture of both branches of his real design.”
Jefferson never wavered in his belief that Aaron Burr was a traitor with dangerous designs against the U.S., but it was never borne out under the law. After Burr was arrested and indicted for treason in early 1807, a trial was held in Richmond, Virginia. Burr's defenders claimed he was a victim of Jefferson's personal animosity and of the government's relentless persecution. “Never, I believe, did any government thirst more for the blood of a victim than our enlightened, philosophic, mild, philanthropic government for the blood of my friend,” wrote Luther Martin, one of Burr's more flamboyant attorneys.
For his own part, Jefferson believed that the law would benefit Burr because of the strict definition of treason it provided. “Burr's conspiracy has been one of the most flagitious of which history will ever furnish example,” he wrote. “Yet altho' there is not a man in the U.S. who is not satisfied of the depth of his guilt, such are the jealous provisions of our laws in favor of the accused, and against the accuser, that I question if he can be convicted.” The president was rather astute in this observation, as events would show.
The question before the court was whether or not an
overt
act of treason had occurred. Chief Justice John Marshall, presiding over the trial, determined that the prosecution had not established any overt act, as the law demanded, and thus barred the appearance of most of the prosecution's witnesses because they would be testifying about a conspiracy to commit treason, which would be irrelevant. Marshall's ruling was a devastating blow to the prosecution, and resulted in the jury's verdict of not guilty.
Aaron Burr escaped the noose that would have accompanied conviction, but not the notoriety that clung to him. Harassed by creditors and with no prospect of a return to public life, he slipped away to Europe, where he spent some time in debtor's prison. After an exile of about five years, during which he tried in vain to recoup his fortunes, he returned almost unnoticed to New York in 1812. He spent his remaining years as a moderately successful attorney, though he was never able to erase the stains on his reputation. He died in 1836, at age eighty.
3
Roger Taney: One Mean Supreme
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George Washington owned slaves. So did Thomas Jefferson and half the other Founding Fathers. Roger Taney willingly freed his slaves out of personal principle yet it is his reputation that has been forever tarnished by his association with the “peculiar institution.” Raw deal? Well, not if you consider that it was Taney, the chief justice of the United States Supreme Court, who tried to cram the legitimization of human bondage into the Constitution. With the
Dred Scott
decision of 1857, Taney affirmed the concept that blacks were an inferior race with no rights of citizenship under the law. Furthermore, he declared that Congress had no right to limit the expansion of slavery into U.S. territories. Taney actually believed the decision would settle the long-festering slavery issue once and for all. Instead,
Dred Scott
inflamed it even further, dragged the nation closer to civil war, and, in the words of Representative Thaddeus Stevens of Pennsylvania, “damned the late chief justice to everlasting fame and I fear everlasting fire.”
The Dred Scott case was fairly routine in the beginning, a decade before Roger Taney got his hands on it and made it a landmark decision. Back in 1846, it was simply about a slave named Dred Scott who sought freedom for himself and his family by suing for it in the Missouri circuit court. Scott had good reason to believe then that he would prevail. His owner, an army surgeon, had brought Scott and his family from Missouri to live with him at U.S. Army posts in Illinois and in the Wisconsin Territory, both of which prohibited slavery. Missouri courts in the past had granted freedom to enslaved persons whose owners had taken them for extended periods of residence into free states or territories under the legal principle “Once free, always free.” Scott won in the circuit court, but the verdict was appealed, and the politically charged proslavery Missouri Supreme Court reversed it. Dred Scott was still a slave in the eyes of the law. After this setback, Scott sued for freedom in federal court, but there, too, he lost. Finally, after a nearly decade-long legal odyssey, he appealed to the U.S. Supreme Court. He didn't stand a chance.
Dred Scott was facing a nine-member court of which the majority were proslavery Democrats. Chief Justice Taney, having served in that capacity for nearly two decades, enjoyed a decent reputation, but, as historian Kenneth M. Stampp writes, “his judicial robes had only partially concealed his persistent partisanship, especially on matters relating to slavery and the sectional conflict.” Furthermore, Scott, though ably represented by his lawyer, Montgomery Blair, had to contend with a formidable team of opposing attorneys who argued that as a black man he was not a U.S. citizen and therefore should never have been permitted to file his suit. They also argued that when Scott was returned to Missouri, his status as a slave was determined by that state's laws, not those of Illinois. The same concept applied to his return from the Wisconsin Territory, although the opposing attorneys broadened the argument considerably when they asserted that the restrictions against slavery imposed by Congress in the various territories under the Missouri Compromise of 1820-21 were unconstitutional in the first place. It was this argument, asserts historian Don Fehrenbacher, that converted “Dred Scott's private case . . . into a public issue,” and turned the Supreme Court into a “public arena.”