Gilbert Chinard

When, on the fourth of March, 1805, Jefferson began his second term, he had a right to review with some complacency the achievements of his first administration. To foreign affairs he scarcely granted a short paragraph, but he pointed out with great details the suppression of unnecessary offices, the reduction of taxes, the fact that the Federal Government was almost entirely supported by duties levied on importations, so that "it may be the pleasure and pride of an American to ask, what farmer, what mechanic, what laborer, ever sees a tax-gatherer of the United States?" The Louisiana Purchase had increased enormously the potential riches of the country and removed a very dangerous source of conflict. The right bank of the Mississippi was to be settled by "our own brethren and children" and not by "strangers of another family."

Of great interest was the long passage given to Indian affairs. Jefferson's sympathy for the red men dated from the early days of his youth, when he had seen the chiefs stop at the house of his father on their way to Williamsburg. He had handsomely stood in defense of them in the "Notes on Virginia." Now he was regarding them with the commiseration their history began to inspire:

Endowed with the faculties and the rights of men, breathing an ardent love of liberty and independence, and occupying a country which left them no desire but to be undisturbed, the stream of overflowing population directed itself on these shores, without power to divert, or habits to contend against, they have been overwhelmed by the current, or driven before it.

This was certainly a very regrettable situation, but the idea of questioning the right of an overflowing population to occupy scarcely populated territories did not for a moment enter Jefferson's mind. To deny such a right would have been not only detrimental to the very existence of the United States, but also a denial of the "right" of "our Saxons ancestors" to settle in England. Furthermore, the President was confronted with a certain set of facts and not with a theory. The territory of which the Indians had so long enjoyed undisturbed possession was growing narrower every day. With the recent acquisition of Louisiana, it was to be foreseen that they would not be able to roam freely much longer in the vast territories extending west of the Mississippi. They were now "reduced within limits too narrow for the hunter's state." The only thing they could do was to submit to new economic conditions, to settle down and become farmers, and it was the duty of the government "to encourage them to that industry which alone can enable them to maintain their place in existence, and to prepare them in time for that state of society, which to bodily comforts adds the improvement of mind and morals."

The President had no patience with

... the interested and crafty individuals among them who inculcate a sanctimonious reverence for the customs of their ancestors; that whatsoever they did, must be done through all time; that reason is a false guide, and to advance under its counsel, in their physical, moral, or political condition, is a perilous innovation; that their duty is to remain as their Creator made them.

The attitude of these reactionaries among the Indians gave Jefferson an opportunity to hit at one stroke the medicine men and the clergymen who were attacking him fiercely.

In short, my friends, among them is seen the action and counter-action of good sense and bigotry; they, too, have their anti-philosophers, who find an interest in keeping things in their present state, who dread reformation, and exert all their faculties to maintain the ascendency of habit over the duty of improving our reason, and obeying its mandates.

The New England and New York clergymen who had stood with the Federalists knew exactly where they belonged.

But if the President was unwilling to let the attacks to which he had been subjected pass entirely unnoticed, he maintained at the same time that no official steps must be taken to repress in any way freedom of speech and freedom of the press. In more emphatic terms than ever before, he reasserted the fundamental doctrine he had defended against all comers for more than twenty-five years:

During this course of administration, and in order to disturb it, the artillery of the press has been levelled against us, charged with whatsoever its licentiousness could devise or dare. These abuses of an institution so important to freedom and science, are deeply to be regretted, inasmuch as they tend to lessen its usefulness, and to sap its safety; they might, indeed, have been corrected by the wholesome punishments reserved and provided by the laws of the several States against falsehood and defamation; but public duties, more urgent press on the time of public servants, and the offenders have therefore been left to find their punishment in the public indignation.

Thus were the Callender and the Federalist pamphleteers handed over to the public to be dealt with, according to the merits of their cases.

The address ended with a new appeal to harmony, with the hope that truth, reason and well-understood self-interest might enlighten the last opponents of true republicanism. It ended also with a sort of prayer which may or may not have expressed the religious beliefs of Jefferson at the time:

I shall need the favor of that Being in whose hands we are, who led our forefathers, as Israel of old, from their native land, and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with his providence, and our riper years with his wisdom and power, and to whose goodness I ask you to join me in supplications.

Jefferson had not forgotten that twenty years before he had proposed that the seal of the United States should represent the Children of Israel led by a pillar of light. As much as the Puritans he was convinced that the American people was a chosen people, that they have been gifted with superior wisdom and strength, and this belief was just as much part of his creed of Americanism as it was the more openly expressed doctrine of more recent presidents of the United States.

With these brilliant and reassuring prospects before his eyes, Jefferson entered his second term. Little did he believe at that time that the four years before him were to be the most agitated and most distressing of his long career. The man whose fondest hope was to "secure peace, friendship and approbation of all nations" was to begin a series of police operations against the Barbary pirates of the Mediterranean and was confronted, at a time, with the possibility of a war with Spain, a war with England and a war with France. His philosophical toga was torn to shreds by the thorns strewn along the tortuous paths of international relations. At home he had to use all his ingenuity and resourcefulness to keep together disaffected elements in the Republican Party, to withstand the attacks launched in Congress by John Randolph of Roanoke, the impulsive, erratic and dangerous leader of the discontented Republicans. The man who had framed the Kentucky resolutions and had stood as the advocate of States rights was reproached with using his influence with Congress to pass the Embargo Act, "more arbitrary, more confiscatory" than any measure ever proposed by the Federalists. The man who had protested against the sedition bills had to repress the seditious attempts of the former Vice President of the United States. It seemed as if an evil genius had taken a malicious pleasure in making every effort to test the President in every possible way, and to confront him with the necessity of renouncing his most cherished principles. Jefferson did not come out of the ordeal without scars and deep wounds; but whatever may have been his deficiencies and his faults, whatever sins he may have committed, he kept his faith in the ultimate wisdom of public opinion and never tried to suppress by coercion the criticism to which he was subjected.

As a matter of fact, the roseate view of the situation presented by Jefferson in his second Inaugural Address was hardly warranted by facts. Even before the close of the first term, Randolph, who had been the standard bearer of the Republicans in the House, had shown signs of discontent. He had supported the "Remonstrance of the people of Louisiana", protesting that one of the essential provisions had been violated and that they should be admitted at once to "all the rights, advantages and immunities of citizens." On the other hand, Aaron Burr, even while remaining in office, had already paved the way for the dark and romantic machinations which were to culminate with his trial before Marshall at Richmond.

The story of Burr's conspiracy deserves a special place among American "causes cÉlÈbres." It has been told many times, and very vividly, but only the pen of Alexandre Dumas could do justice to it. Many efforts have been made to whitewash the memory of the chief conspirator, to throw most of the odium on Wilkinson and on Jefferson who, according to his enemies, would have gone out of his way to obtain the condemnation of a man who could not be proved guilty of any overt act, although there is no doubt that he had originated some of the most reprehensible schemes against the safety of his country. But Americans always had a foible for soldiers of fortune, for adventurers who dreamed of conquering new empires; for in them they see the magnification of the frontier spirit which for so long constituted one of the "pillars" of American civilization.

By an extraordinary trick of heredity, this adventurer, who should have been a Spanish conquistador, this arch plotter who had the insinuating ways of the Florentine, the tortuous and complicated mind so often considered as a privilege of the Europeans, was the great-grandson of Jonathan Edwards and of pure New England descent. He had fought bravely and enthusiastically in the Revolutionary War, he was a lawyer of no mean achievement; but his thirst for popularity, applause and success was beyond imagination, and this Machiavellic politician lacked in an extraordinary degree common sense and political vision. Had he withdrawn from the run for the presidency in time, had he gracefully accepted the second rank in December, 1800, he would have had a great political career before him. But to the last minute he refused to say the word that was expected from him; he accepted without protest the votes of the Federalists and was considered as a traitor to his party even before he took office. As early as January, 1804, he had gone to Jefferson and, after complaining that the President did not show him the same friendship as before, he had offered to resign at once if he were appointed to some foreign embassy. After Burr had left without obtaining any definite answer, Jefferson put down on paper a complete account of the conversation and dryly concluded:

I should here notice, that Colonel Burr must have thought that I could swallow strong things in my own favor, when he founded his acquiescence in the nomination as Vice-President, to his desire of promoting my honor, the being with me; whose company and conversation had always been fascinating with him etc.[452]

Disappointed in this respect, Aaron Burr turned his eyes towards New York, where he had worked so successfully during the preceding election. The post of governor happened to be vacant, and in February Burr was chosen by the discontented Republicans of the State to run for governor. It seems quite certain that, if he had been elected, the movement for secession already strong in New England would have received a new impetus and that a desperate effort would have been made to shake off "the rule of Virginia." When, after a savage campaign marked by invectives, brawls and riots, Burr was finally defeated, he could and did rightly attribute his failure to Hamilton who, from the very beginning, opposed his candidacy. A personal encounter was decided and the two adversaries met on the bank of the Hudson, pistol in hand, in a duel to the death. It has always been said that Hamilton did not take aim and fired first. Burr fired deliberately and Hamilton, fatally wounded, fell to the ground, to die the next day.

Found guilty of murder by a grand jury, and in fact already a fugitive from justice, Burr hid at first in Georgia and there concocted the most extraordinary plan to effect a separation of the western part of the United States with the help and financial assistance of England. Although evidence was not procurable at the time of his trial, there is no doubt that he thought the scheme feasible; that back in Washington, and when he was presiding over the impeachment proceedings of Judge Chase, the Vice President of the United States was prudently sounding the delegates of the western States, ingratiating himself to them and that the wildest dreams of empire were haunting his feverish imagination.

As soon as the session was over, Colonel Burr started out for a tour of the western States and, on an island of the Ohio, met by chance the philosopher-planter Blennerhasset, the innocent victim of his plots. Leaving Blennerhasset, Burr went to Cincinnati, Frankfort, Nashville. He met Andrew Jackson, the uncouth son of the frontier, and Wilkinson, the general in charge of the western territory. After a visit to New Orleans, where he was greatly elated by the discontent of the population, he went back to Saint Louis to discuss the situation with Wilkinson. Whether he still adhered to the original plan of separating the western from the eastern States is to a considerable degree doubtful. His immediate object seems rather to have been to lead an expedition of adventurers against Mexico, in case the war that was threatening between the United States and Spain should break out. It must be admitted that the plan in itself was not particularly objectionable to the Government, but it soon appeared that this scheme too had to be given up. After vainly attempting to secure assistance from the British Government, Burr, changing from conqueror to farmer, undertook to buy, with Blennerhasset, a grant of several hundred thousand acres on the Washita River, in Northern Louisiana, in order to establish there a model colony.

The rest of the story is well known. Rumors of a conspiracy grew in the West without disturbing at first the security of the Federal Government. Burr, summoned to appear before the district attorney of Frankfort, surrendered himself, but was twice discharged and continued his preparations for the settlement of Washita. Jefferson did not move until he received from Wilkinson a confidential message purporting to be the transcription of a ciphered letter sent by Burr. The President was so alarmed that he issued at once a proclamation, warning the people that a conspiracy had been discovered and directing the arrests of the conspirators and the seizure of "all vessels, arms and military stores." Wilkinson, eager to show his loyalty to the Government, arrested "without warrant" several emissaries of Burr. One of them was released, but two, Bollman and Swartwout, were sent out by sea to Baltimore and thence to Washington, where they were kept in the military barracks. In a special message to Congress, Jefferson apprised the Senate and the House of the facts "touching an illegal combination of private individuals against the peace and safety of the Union, and a military expedition planned by them against the territories of a power in amity with the United States, with the measures pursued for suppressing the same." (January 22, 1807)

Shortly after Marshall, in Washington, had refused to indict Bollman and Swartwout on the count of "levying war" against the United States, Burr was finally arrested and taken under military escort to Richmond, there to be delivered to the civil authorities after Marshall had signed a special warrant (March 26, 1807). After long skirmishes between the prosecution and the defense, legal moves and countermoves, Burr was indicted under two counts,—treason and high misdemeanor. On the first charge the jury rendered a verdict to the effect that "We of the jury say that Aaron Burr is not proved guilty under this indictment by any evidence submitted to us; we therefore find him not guilty."

This was a most unusual and illegal form of rendering a verdict and the jury evidently intended to emphasize the fact that the evidence submitted did not warrant a conviction, although they reserved their opinion as to the real guilt of Colonel Burr. Marshall overruled objections to the form of the verdict which threatened a reopening of the case and decided that it would be recorded as "not guilty." Burr was soon recommitted on the second count and declared not guilty by a second jury. Upon which a third charge was brought in by the prosecution and Burr summoned to appear at the session of the Circuit Court of the United States to be held at Chillicothe in January, 1808. He never appeared and his bond was forfeited; it is more than doubtful that he would have been convicted.

A serious discussion of the merits of the case would necessitate a minute analysis of all the evidence placed before the jury and cannot be undertaken here. Several attempts have been made to rehabilitate Aaron Burr's memory, although certain facts are so patent that they cannot be overlooked by the most indulgent biographers. It is a curious bend of the popular mind that the greatness of the conspiracy seems an excuse and attenuation of the most evident guilt. There was something apparently heroic in the ambition of that man who wanted to carve for himself an empire in the wilderness and to plunder the treasures of the mysterious Southwest. Then, by contrast, the obstinacy of Jefferson in using every means in his power and in the power of the Federal Government in order to obtain a conviction, has been represented as a display of pettiness unworthy of the chief of a great nation. Nor is this tendency restricted to the impulsive and emotional masses; it creeps into the accounts of the trial given by the most judicial historians, and I am not certain that it is entirely absent from Beveridge's treatment of the Richmond proceedings.

Legally speaking, it is difficult to find fault with the findings of Marshall, with the definitions he gave of "treason" and "overt act", with his sifting of the evidence and, except in one or two cases, with his behavior during the trial. On the other hand, Jefferson has been accused of having unduly interfered by sending detailed instructions to the district attorney, by coaching him on several occasions, and by attempting directly and indirectly to arouse public opinion against a man who was on trial for his life, but who finally could not be convicted on any count. After such an interval of time, it is easy to find fault with the conduct of the Executive, and it cannot be denied that he acted in a very high-handed manner, condoned acts which were technically illegal and maintained without sufficient proofs of Burr's guilt that there was not "a candid man in the United States who did not believe some one, if not all, of these overt acts to have taken place."[453]

On the other hand, if we try to place ourselves in the atmosphere of the time, it is equally easy to find explanations that to a large extent justify Jefferson's attitude. It must be remembered that the President was not unaware of Burr's intention "to form a coalition of the five eastern States, with New York and New Jersey, under the new appellation of the Seven Eastern States."[454] If Burr's machination with the English minister to effect a separation of the western States were still unknown, there was little doubt about his plans. All of Burr's ambitious schemes failed miserably, but it is perfectly natural that the Government should have been seriously alarmed at the time. They did not know of Wilkinson's shameful deals with Spain, but they had every reason to believe that a man who had already plotted a secession of the western territory and happened to be in charge of that territory and in command of the Federal army was scarcely to be depended upon in an emergency. For years the West had been very restive, New Orleans was full of discontented Creoles, and if war had not been officially declared with both England and Spain, it was felt that it could break out at any time. None of these considerations could be brought out before the jury, but they amply warranted some action of the Executive. The first step taken by Jefferson was to warn the people of the existence of a conspiracy. If we remember again that Aaron Burr was at that time roaming at will in a part of the country sparsely settled, where he counted many friends, where communications with Washington were slow and rare, it is difficult to see how the President could have done less.

After the conspirators were arrested the situation changed entirely. They had been delivered to the civil authorities, they were to appear before a regular court and given trial by jury; they no longer constituted a public danger. It must be admitted that Jefferson himself declared to his French friends, Lafayette and Du Pont de Nemours, that Burr never had a chance to succeed and "that the man who could expect to effect this, with American material must be a fit subject for Bedlam."[455] This is hard to reconcile with the statement which comes immediately after, that "the seriousness of the crime demands more serious punishment", and particularly with the instructions sent to George Hay. One may suspect that Jefferson saw in the trial of Burr an opportunity to test the loyalty of the Chief Justice to the Constitution and to the Government and allowed himself to be carried away by political preoccupations which had nothing to do with Colonel Burr. This appears clearly in one of the letters to Giles:

This was reiterated in the instructions sent to George Hay after the first acquittal of Burr, that no witness should be permitted to depart

The intention to scrutinize the documents to uncover any bias of Marshall and use any such evidence against the Chief Justice is even openly admitted: "I must pray you also to have an authentic copy of the record made out (without saying for what) and to send it to me; if the Judge's opinions make out a part of it, then I must ask a copy of them, either under his hand, if he delivers one signed, or duly proved by affidavit."[457] Who could deny after reading this that Jefferson's intention was to push vigorously the attack against the judiciary, and to institute impeachment proceedings against Marshall on the slightest justification? Thus the trial of Burr became a test of strength between the executive and the judiciary, between the President and the Chief Justice; it was fought out in the courtroom the more fiercely as the two antagonists were kinsmen and brought into it the obstinacy and animosity of Southern feudists.

Marshall came out as the stanch and unshakable champion of legality, and Jefferson did not refrain from using the arguments and reasonings resorted to by the Federalists when the Sedition Act was passed. There was little excuse for a man of his legal training in believing that Burr could be convicted and punished for his "intentions" to commit a crime, and the prosecution failed to bring in sufficient proof of Aaron Burr's guilt. It would have been more dignified and more consistent with Jefferson's theories if, after the conspirator was made powerless, the President had remained silent. That, however, he could not do. Early in October, he called back Attorney-general Robert Smith in order to prepare a selection and digestion of the documents respecting Burr's treason and, in his message to Congress, on October 27, if he did not use the word treason, he still accused Burr of "enterprise against the public peace." He assumed responsibility and claimed credit for the measures that had permitted "to dissipate before their explosion plots engendering on the Mississippi." He laid before Congress the proceedings and evidence exhibited on the arraignment of the principal offenders. Finally, he concluded that Burr's acquittal was evidence that there was something wrong somewhere, and that the nation could not remain defenceless against such dangers. "The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression, under pretence of it; and if these ends are not attained, it is of importance to inquire by what means more effectual they may be secured."

A year later, writing to Doctor James Brown about the measures of repression taken by Wilkinson in New Orleans, Jefferson presented what he considered a full justification of his conduct:

This was exactly the sort of reasoning that Jefferson had opposed so strenuously when advanced by his political opponents. Apparently he had completely reversed his position after getting in the saddle, which was very illogical and perhaps very damnable, but also very human. He was now, to use the vivid expression of a French statesman, "on the other side of the barricade", and he saw things in a different light. But if this episode can serve to illustrate the inconsistency of the philosopher, it constitutes also a most striking refutation of the accusations of Jacobinism so often launched against Jefferson; for only the Jacobin is perfectly consistent in all circumstances. More than thirty years had elapsed since Jefferson had copied the old maxim fiat justifia ruat coelum in his "Memorandum book" and he was still wont to repeat it, but it had taken him less than eight years of executive responsibility to make him admit that democracy does not work in times of emergency. It was a most dangerous admission, but one to be expected from a man in whom still lived the ruthless spirit of the frontier. Pioneer communities in which unrestricted and unlimited democracy prevails are pitiless for the outlaw who endangers the life of the group, and are not stopped by "legal subtleties." In Jefferson there was more of the pioneer than he himself believed. For this very reason he was probably more completely and intensely an average American than if he had "acted up" to the letter of the law in every circumstance.

This was by far the most dramatic of the internal difficulties that Jefferson had to face during his second term. Burr's conspiracy obscured the attacks against Madison led by the former spokesman of Jefferson's party, John Randolph of Roanoke. But already, when Burr's trial was held in Richmond, "circumstances which seriously threatened the peace of the country" had made it a duty to convene Congress at an earlier date than usual. Once again, as under the administrations of Washington and Adams, foreign policies were to dominate and direct domestic policies, and once again America was to bear the penalty of all neutrals who try to keep out of the war in a world conflagration.

CHAPTER IV