The American Chronicle 1 - Burr (64 page)

Now on the defensive, George Hay not so delicately chose to threaten John Marshall, reminding him that for pre-judging a trial Justice Chase had been impeached. The defence made much of this threat. Wisely, Marshall made little. Luther Martin and Edmund Randolph then closed the case for the defence on Friday, August 29.

John Marshall spent Saturday and Sunday preparing his opinion. On August 31, he read it to us for three hours. From the legal and constitutional point of view, the
opinion is often weak and contradictory. Having nearly undone himself (and the Constitution) with the Bollman-Swartwout ruling, he ignored, as best he could, his own previous statement that anyone who had contributed to the levying of war against the United States was as guilty as the actual leveller of war, and addressed himself to quite a different issue.

In order to prove treason, the government was obliged, first, to prove that an act of war had been levied against the United States and, second, to prove whether or not a given individual had been involved in that act. The case, in other words, had been presented backward. The government had arrested Aaron Burr for complicity in an act of war which had yet to be proved. Further, it was the government’s contention that Burr was present when the as yet unproved act of war was levied. Marshall briskly dealt with that: the court was satisfied that Burr was elsewhere.

Then Marshall affected to deal with the prosecution’s crucial point: had Burr incited others to treason? and if he had was he guilty of treason? Marshall now edged with elephantine grace away from his own earlier position. He pointed out that Burr had been indicted for acts of war against the United States on a certain day and at a certain place. Now on that day Burr was not present in that place. Nevertheless, the question remained: was he guilty of inciting to treason those who were there? If he was, then the court must point out that the government had
not
indicted him of this crime for the excellent reason that incitement to treason was no crime under the Constitution. There was a murmur from the lawyers in the court as they saw which way our legal history was about to go.

“To advise or procure a treason,” and Marshall’s voice became suddenly loud and clear, “is in the nature of conspiracy or plotting treason ...” He paused, no doubt aware that the obvious always sounds novel when stated with unexpected emphasis. Then he made his point, and took his place in history, “which is not treason in itself.” With this formula, he undid his own decision of six months before.

As the murmuring increased in the court-room, Marshall patiently explained that no doubt there
ought
to be such a law, but since for the present it did not exist he would move on. Meanwhile, he was still not satisfied that “a secret furtive assemblage” on Blennerhassett’s Island had ever been intended as an act of war but even if it had been so intended, the absence of Aaron Burr made him no party to it, and what advice he might have given the men there furtively assembled could not be considered an act of war against the United States, as defined by the Constitution.

That was the end of the government’s case. George Hay slammed down his papers on the prosecution’s table for which diversion he was favoured with Marshall’s full attention yet mildest tone.

“That this court dares not usurp power is most true.” There was complete silence in the court. Everyone knew that Jefferson’s wrath would now be focused upon the Chief Justice. How would the Chief Justice respond? John Marshall was direct: “That this court dares not shrink from its duty is not less true.” He spelled out as plain as any Martin Luther where he stood, and why he would not move, despite Jefferson’s threats of impeachment and the breaking of the Supreme Court. On that note the jury was sent out to do its duty.

The next day, Tuesday, the jury found me “not proved to be guilty under this indictment by any evidence submitted to us.” I was relieved; I was outraged. I was not to be hanged; I was also not to be exonerated. The jury had broken with all custom by refusing to answer simply “guilty” or “not guilty.” Marshall chose to allow the jury’s phrase to remain in the indictment while signifying that the court’s record would be decorated with the usual, unadorned “not guilty.”

The next day I was released from prison, on bail, and attended a dinner party given by John Wickham to celebrate our victory.

Theodosia was my consort for the evening, and we presided over the revels—and were happy except that I knew that my days in court were not yet finished while I was troubled by my daughter’s health. I prayed it would not follow the same course as her mother’s. Yet that evening she was witty, resplendent, triumphant.

THE COLONEL STOPPED suddenly. “I cannot go on.” I put down my pen. “Are you ill?”

He shook his head. “No. Tired.”

“Shall I get Mrs. Keese?”

“No.” He sat back in the sofa; took a deep breath ... I half-expected it to be his last but he is not ill as far as I can tell.

For some minutes I sat watching him, wondering whether or not to go. Finally he opened his eyes, turned toward me. “I am only tired,” he repeated, “unexpected as that may seem. It is not easy for mere-living all this.”

The Colonel indicated the volumes of legal reference he has been using. “You must go through them yourself. Decide what you would like me to comment upon. I don’t seem to be able to ...” He stopped.

“We’ve been doing too much.” I apologized at length.

But the Colonel was not listening. He was staring at the portrait of Theodosia. Finally, “Actually there isn’t much left to tell. We stayed on at Richmond for another two months and I was found innocent of the misdemeanour of wanting to invade Mexico. But Marshall was becoming frightened. Almost every evening he and I were burnt in effigy, an honour I was used to but one which distressed the Chief Justice who was—quite sensibly—fearful of Jefferson’s ability to stir up the people. So Marshall ruled that I be tried in Ohio for the misdemeanour of trying to levy war against Mexico. It was a shameful collapse before Jefferson and popular opinion—reminiscent of King Henry’s before Jack Cade. Fortunately Ohio never pressed the suit, and I was free—but shadowed.

“I went with Luther Martin to his home in Baltimore, but was forced by mobs to leave. Then I went to Philadelphia, and tried to re-assemble my life. I still had hopes in Mexico—with English or French aid something might yet have been done. There was also Texas. I had support there ...” A long pause.

Then the voice changed from disjointed elegy to dry narrative. “Disguised as Mr. H. E. Edwards I sailed for Europe in June of 1808. By the middle of July I was in London, just in time to learn that Napoleon’s brother Joseph—yes, our New Jersey neighbor who ate pork and cabbage in Madame’s kitchen—would become king of Spain and, of course, of Mexico. That was the end of my Mexican venture. King Joseph was not about to help me dismember his newly-acquired empire. Nor was England about to dismember the empire of the previous king, in whose name England presently invaded Spain in order to drive out the Bonapartes ...”

Another long pause. Then, “Four years I lived from hand to mouth. The English would not let me stay so I went to Sweden. The people were warm; the weather not. I moved on to Germany, to various princely courts. At first France would not let me in. When at last I was admitted, they would not let me out. I was watched day and night. I failed to be presented to the Emperor though I had plans which might have interested him.”

Suddenly the Colonel opened his eyes, very alert. “You know, Charlie, Paris reminded me exactly of Albany before the Revolution. The same filthy streets with a gutter running down the middle. This meant that every hack driver could splash the pedestrian to his black French heart’s delight. But Albany reformed itself while Paris would not admit the evil.”

At this point the man-servant entered with the newspapers. Seeing that the Colonel was exhausted, he gave me a reproachful look. “The Governor has missed his nap,” he proclaimed (he invariably calls the Colonel “Governor,” a habit contracted while working for Governor Clinton).

“Yes, the ‘Governor’ is not himself.” The Colonel gave me a quick smile. “Unless this
is
himself. In which case may God mend the Governor for man cannot.”

Loaded down with reports of the trial, I departed.

IT IS THE FIRST of June, 1835. If I don’t write it all down, I shall never be able to.

START again.

A week ago Martin Van Buren and “Tecumseh” Johnson were nominated for president and vice-president by the Democratic convention at Baltimore. Mr. Van Buren said that he did not seek the honour. Most of the state delegations said they did not seek the dishonour of raising to the vice-presidency the paramour of two black women but they were forced to accept Johnson.

No. Start again.

At about four o’clock this afternoon George Orson Fuller, professor of phrenology, came to pay a call on Helen and me. Some months ago I wrote about him in the
Evening Post
.
He now thinks that I should do more articles on the science of phrenology, and so do I, and so does Leggett who is not only up and around but in charge of the newspaper while Mr. Bryant is in Europe.

Professor Fuller. He is small, with tiny hands like a monkey’s paws; he wears a black stock that nearly covers his mouth. He is bald and every bump of his distinguished cranium shines like the plaster demonstrator’s model he carries about with him in a woman’s hat-box.

“Mrs. Schuyler, an honour. A true honour.” The Professor bowed to Helen who helped clear a place on her work table for the life-size plaster head with its numbered divisions like a map of the German states.

“Everything’s such a mess,” Helen apologized, eyes intent on the head. “Would you like tea or sugared water?”

“Water. I never touch stimulants.” The Professor tapped the beginnings of his side whiskers, just in front of the left ear. “That’s the source of Alimentiveness.” Helen looked blank. “When over-developed it means gluttony, an addiction to food and strong drink,” he explained. “As you see, I lack
any
development then. You,” he blinked his eyes at me, “like your food.”

“He does,” agreed Helen. “He’ll get fat, too, the way he eats.”

While Helen prepared to feed and starve respectively our Alimentive bumps, the Professor told me how much he had enjoyed Old Patroon’s observations on the new science of phrenology.

“Though we’re not so new as people think. Our founder, properly speaking, is Professor Prochaska of Vienna whose work on the nervous system in 1784 linked what is
inside
the skull—the brain—with what is
outside
—the contours of the head.”

Helen gave the Professor his water, staring at him as though he were an exhibit at the museum. Lately she has asked me to bring people home. “If you’re not ashamed of me. I get lonely sitting here, even with
this
to keep me company, kicking all day she is.” She would stroke her stomach fondly.

“Now, Mr. Schuyler, I have something for you which I think Old Patroon—and the
Evening Post
—will agree is unique.” He drew from his pocket a much folded sheet of drawing-paper. Carefully he opened it to reveal a head exactly like that of his model except for certain numbers, which had been underlined. “This is the first phrenological examination of the head of Martin Van Buren, obtained by a colleague of mine at Washington City.”

My heart sank. Am I ever to be free of Mr. Van Buren? “I think the
Evening Post
will be delighted—if it is authentic.”

“A very big head,” observed Helen.

“A very
superior
head.” The Professor loves his work; and I am impressed by the thoroughness of this new science and tend more to believe in it than not. At some length the Professor revealed for us the Vice-President’s head and character. Highly developed are Secretiveness (posterior part of the squamous suture) and Self-Esteem. Also, Cautiousness (high development on the parietal eminence) and Firmness (a lofty sagittal suture from behind the bregma to the front of the obelion).

Although I have not yet examined in detail the chart Professor Fuller left with me, I am fairly certain that Old Patroon will be impressed—after his usual fulmination against modern credulity.

I queried the Professor as shrewdly as I could. Noted objections to his science. “For instance, it has been recorded that the playwright Sheridan’s bump of Wit was not well-developed. Yet he was the wittiest writer of his age.”

“But he was
not
witty. Oh, what a superb critic of literature as well as of man our science is!” The Professor revels in the subtleties and paradoxes of his science. “You see, Sheridan’s wit was not
true
wit and phrenology has at last confirmed what no critic could ever have known: that Sheridan’s most notable bumps were Memory and Comparison. Now those two in powerful conjunction can give the appearance of wit (after all, Sheridan
remembers
other men’s clever words and then
compares
them to the ideal in art) but the appearance of wit, as his writing absolutely proves, is not Wit itself.”

“How is my Wit?” Helen leaned forward, with a smile at me.

“Small, I am thankful to say. Wit is unbecoming in the gentler sex. Do you mind? May I?” The monkey’s paw lightly tapped Helen’s head here and there; as he did, he buzzed to himself like a bee.

“Very good,” the Professor said at last. “Your Philoprogenitiveness is
highly
developed,” He tapped the back of the model head. “There. On the squama occipitis. See?” Helen was bewildered. “It means a love of children. It is highly pronounced in most women and apes since in both women and apes the love of children is greater than it is in men.”

“Well!” Helen felt the back of her head. Then, to my astonishment, she said, “I think I need something strong, to fortify me,” and in front of Professor Fuller she poured herself a small glass of Dutch gin.

The Professor laughed a bit nervously. “You
seem
to be lacking in Alimentiveness ...”

“I am. It’s just very close in here. If you’ll excuse me.” Helen went into the bedroom and shut the door.