The American Chronicle 1 - Burr (50 page)

At the beginning of November, I appeared at Washington City, ready to preside over the Senate. Some people thought it indelicate of me to assume my constitutional duties as I was under indictment for murder in New Jersey. But I was a conscientious public servant. I was also a responsible citizen determined to go back to New Jersey and stand trial; until I was told that the judge for Bergen County had declared publicly that if I was not immediately hanged, there would be famine in Bergen and pestilence in Hoboken. New Jersey lost its magic for me. Meanwhile, I was gratified to learn that, at Jefferson’s prompting, a group of senators were petitioning the governor of New Jersey to drop proceedings against me. Why was Jefferson so sympathetic? Love for me? A sense of justice? of honour? None of these things. He was in trouble and needed my help.

I got my first summons to the President’s House two weeks after the Senate convened on November 5. The President’s messenger tracked me down at the British minister’s house—or rather houses. Merry had taken two brick buildings on K Street and transformed them as best he could into a fashionable embassy.

Mrs. Merry presided over tea before the fire. She was in good form and we were all much amused by the latest symptom of her Jeffersonitis (as usual, I pretended not to hear anything unpleasant that was said of my sovereign).

But Mrs. Merry had other subjects. That afternoon she told us the fabulous story of old Mr. Collins and young Mr. Roper. Collins was an eccentric old Federalist who had a large estate near Alexandria. He was known to be mad, though I never saw any sign of it other than a tendency to quarrel with his
rib
in public; but if quarrelling with one’s wife is to be mad then there are not asylums enough for us all. Roper was a young lawyer in Alexandria who was courting a favourite niece of Collins. Roper had any eye on the girl’s money but to get at it he must first contrive to have old Mr. Collins confined to the madhouse.

“Well, young Mr. Roper has been foiled!” Mrs. Merry’s harsh amused voice was like a parrot’s. “He called yesterday on old Mr. Collins who said to him, ‘They tell me you are mad!’ Poor young Mr. Roper who had come to say the very same thing to his host was astonished! ‘But I am not in the least mad, Sir.’ ‘But, Sir,’ said old Mr. Collins, ‘it is plain to everyone that you are quite mad. Fortunately there is a capital cure which did the King of England himself a world of good, and that is whipping.’ Whereupon two large slaves appeared, pulled down young Mr. Roper’s breeches and beat him unmercifully!” As Mrs. Merry wept with laughter, the President’s messenger appeared, accompanied by the butler who intoned, “From His Excellency, the President, to Colonel Burr.”

The messenger gave me a note and withdrew.

“It would appear, Colonel Burr, that you are soon to be pell to Mr. Jefferson’s mell.” Mrs. Merry was right. But this particular pell-mell was not social but political.

I dined alone with Jefferson the next day (he always took his main meal at three o’clock). I had not seen him for almost a year and thought him somewhat haggard-looking—hair white, eyes tired and dull, the tip of his vulpine nose oddly translucent, like alabaster. The “palace” was still unfinished—cold, draughty, empty. But the private dining-room was comfortable, and original: Jefferson had installed a series of dumbwaiters from which one served oneself.

“Life without servants,” observed my host, “is the last luxury ... as well as the first privation,” he quickly added.

“They listen,” I agreed.

“They also talk. Not that there is ever anything said here which I would not be happy to see published.” Jefferson tended to strike the self-righteous note in much the same way as a clock strikes the hour and like a familiar clock one does not hear the sound unless one is anxious, as I confess I was, to tell, as it were, the time.

I recall nothing of our excellent dinner except that the French wine was not only good to drink but promptly produced a lecture on the making of wine. I herewith note for history that this lecture had in no way changed its form from the last time I had been honoured with it. Jefferson played his mind rather the same way he played his fiddle, being especially fond of the old tunes.

There was also a miraculous dessert that I had not encountered before; it consisted of ice-cream served in a shell of
hot
pastry.

No mention was made of the election I had lost in New York. No mention was made of Hamilton except for a rather tentative “I am told that your problems in New Jersey will soon be resolved.” He affected to find the Merrys entertaining. “I understand from one of my agents at London that Mr. Merry is known to the Foreign Office clerks as
Toujours Gai
.”
Jefferson knew from experience that this sort of thing was amusing and so, dutifully, repeated it to me, knowing I would respond. If I had been Jonathan Edwards, he would have quoted from “Samuel.”

Jefferson asked politely about my adventures at the south. I told him that during my short visit to East Florida it seemed plain to me that the people in that part of the world were ripe for liberation.

Jefferson agreed. “Actually, we
have
liberated them by act of Congress and by executive order, but I fear nothing short of a war with Spain—or another purchase—can give us what is rightfully ours.”

“The chances of a war seem excellent.”

But Jefferson did not take the bait. Spoke instead of his difficulties with Bonaparte, of his difficulties with England. Then, as the fabulous confection was brought a second time by the French butler himself, Jefferson came to the point.

“I have never known, Colonel, to what extent the
nature
of our Constitution interests you.”

“Hamilton made much the same remark. He found me equivocal.”

“I trust I resemble Hamilton
only
in this matter.” The smile was a swift baring of yellow teeth; the lips were gray tending to blue where most men are pink or red. I suppose it was the winter season that made him look like the last ashes of a once-fierce fire—soft, fine, white; no trace remaining of the foxy, red-haired man he had been save for the tarnished bronze of freckles.

“I suppose, at heart, I have never regarded the Constitution as a finished work.”

“We agree ... we agree!” He was too agreeable.

“It will evolve or be discarded.”

“My own view ...”

“There are two weaknesses that I see in it. The first is the so-called inherent rights of any state to dissolve its bonds with the union.” I stopped.

Jefferson looked startled ... no, embarrassed. God alone knew what he had heard of my dealings with the New England Federalists, or with Merry. “Am I to understand, Colonel, that you do not accept as inherent the right of any state to secede?”

“No, Sir, I do not.”

“But of their own free will thirteen sovereign states came together and—”

“I know the argument.” I was also damned if I would listen to Jefferson deliver this ancient lesson yet another time for my benefit. He was not rational on the subject. “I merely point out that no constitution can be effective if each state thinks that it has the right to nullify any federal law it pleases. I also think that as long as each state believes it has the right to secede, eventually one or more states
will
secede and there will be no United States.”

“Yet we would all be American ... cousins if not brothers.” The usual sentiment.

“No doubt. But you have asked me my view of the Constitution and I must tell you what I think is one of its fatal weaknesses.”

“I find it a peculiar strength.”

“Then you no doubt agree with those New England Federalists who want to separate their states from the rest?”

In the wrong—or on shaky ground—Jefferson was always imperturbable; at his best, in fact. He smiled. “I do get occasional reports about those gentlemen.” He was mild. “Madison tells me that I should be more concerned than I am. But I take the position that if Senator Pickering and the others can convince the people of their states to secede, then I will be the first to offer the hand of friendship to the new confederation.”

“But of course you know that Pickering’s people cannot command a majority ...”

“I know so little of New England but admire so much what I do know.” Jefferson was like silk. I could see what a figure he must have cut in his ambassadorial days. “What is at issue is a principle. And I uphold the principle—each state can do as it likes in reference to the others.”

“Then what about Louisiana? Suppose the people of New Orleans were to vote against union with us and to vote
for
a union with France or Spain, or for independence?”

He was not prepared for this variation on an altogether familiar air. He was hesitant. “I should say that in the light of the purchase, and of the very different nature of the inhabitants—”

The butler again entered (did Jefferson have a bell he could secretly push when he wanted a plate—or the subject—changed?) and poured the two of us champagne, a wine that had recently become popular at Washington City. The subject was changed. “You find a
second
fatal weakness in the Constitution?”

“Not necessarily fatal.” But I was not about to blot further my copy-book and tell him that to me the second weakness is the imperial power assigned to the president. Instead I did the polite and necessary thing. I said what he wanted to hear. “The power of the judiciary.”

The old face lit up. We were in agreement. We were friends. He could trust me. Out it poured, his fear of the courts, particularly of the Supreme Court in the hands of a monocrat like John Marshall. “The issue is so simple! Marshall believes that the courts have the right to set aside acts of Congress. This is intolerable! This strikes at the heart of our system of government! And, by Heaven, the fact that these judges can hold office for life—why, that sort of tenure invites tyranny!”

I was told the plot in straightforward (for Jefferson) terms. Samuel Chase was a justice of the Supreme Court. He was a brilliant, savage old Tory given to frequent harangues from the bench against the Republicans and what he called their “mobocracy.” He had also taken pleasure in tormenting the journalist James Callender when he was still Jefferson’s creature. As a result, earlier that year, Judge Chase had been indicted (with Jefferson’s connivance) by the House of Representatives; he was charged with partisanship, unfairness, bad manners ... for everything except what the Constitution said he could be indicted for, “high crimes and misdemeanours.” Now the Justice must be tried by the Senate and I, as that body’s presiding officer, would be in the position of judge. “Upon you, Colonel, falls the conduct of a trial which will determine the future course of our democracy.”

“I shall be impartial, of course ...”

“Of course. But I hope you will be partial to the principle which is not so much Judge Chase as it is the necessary subservience of the judiciary to the legislative branch. We must establish the precedent that judges may be removed at the people’s pleasure.”

“But the Constitution—”

“May yet have to be amended. But for now we must establish the primacy of the legislature.”

“So that you will be able, if necessary, to rid yourself of the Chief Justice.” This was the issue, bluntly put.

“That will of course depend upon Mr. Marshall’s future behaviour.” The voice was soft and lulling. “I suspect that if we remove Justice Chase, Mr. Marshall will understand that we are serious and so order his future conduct. I have found that in this world a warning is often quite enough.”

I allowed Jefferson to think that I favoured his so-called principle. Actually I have always preferred a judiciary independent of the other two branches of government; and though life tenure tends to promote and protect incompetence, it has the perfect virtue of placing beyond the vindictiveness of the sovereign and the passions of the mob the one high thoughtful court of the land.

During the next three months, as the trial was made ready, I saw more of Jefferson than I had seen of him in the previous four years. We dined together at least twice a week. We often met privately. He was filled with suggestions for my conduct of the trial. He was somewhat fearful of John Randolph of Roanoke who was to handle the prosecution. “Poor Randolph is not himself these days ...” Jefferson looked discomfited. Randolph had been shaken by certain land speculations which had gone wrong, and so was not at his best.

“May I suggest that the self he normally is would not be of much use during a trial.” I was always amused by Randolph, a strange long-limbed man of indeterminate gender. Some thought him actually a woman who had chosen to be a man. Whatever he was, he had no sign of a beard; his curiously wrinkled skin was tallowy; his long beautiful fingers were always in motion when he spoke, while the voice was high but clear like that of a boy chorister. Leaning against a column in the House, wearing hunting clothes, drinking brandy given him by a slave, he would speak by the hour, fascinating all with his mockery and his wit, with a rhetoric that was unique in the republic’s history. In a way his public speaking was not unlike the private conversation of his cousin Jefferson, but where Jefferson in company glimmered with shrewd novelties and speculations John Randolph blazed in public like a display of Chinese fireworks. Incidentally, for some reason he was most proud of his reputed descent from Pocahontas.

January 2, 1805, Judge Chase was summoned to the Senate chamber which I had transformed into a replica of Westminster at the time of the trial of Warren Hastings. I thought the setting should be impressive since, presently, we would decide what sort of republic we were to have. The walls were hung with crimson damask while to my left and right the senators sat in a row like judges. I built an extra gallery for distinguished visitors. I even ordered cleaned the flues of the two fireplaces and for the first time ever the chamber was warm without smoke.

Just before Judge Chase appeared, I ordered the armchair that had been set out for him in the well of the chamber to be removed. “Let him find his own chair,” I said very plainly to an usher. Several Federalist senators hissed me.