The Burr conspiracy presented Jefferson with problems of another kind. With his political career ruined in New York and under indictment for the murder of Alexander Hamilton in a duel, Burr turned his adventuresome gaze to the broiling southwestern frontier. He enlisted a bizarre following: General James Wilkinson, commander of the United States Army in the West; John Smith, senator from Ohio; and Harmon Blennerhassett, a romantic Irishman whose island in the Ohio River was the staging area of the conspiracy. Whether Burr plotted western separation and the creation of a new confederacy on the Mississippi or the filibustering conquest of Mexico, or both together, it is difficult to say. But when Burr, with his flotilla carrying sixty or more plotters, descended the Ohio in the fall of 1806, it became the president's duty to hunt him down and bring him to justice. The Burr conspiracy ran through Jefferson's second term like a disquieting minor theme.
The major theme, of course, and Jefferson's heaviest burden, was in foreign affairs. With the formation of the Third Coalition against Napoleon in 1805, all Europe was engulfed in war. The United States became the last neutral of consequence, in effect the commercial entrepôt and the carrier for the European belligerents. The neutral trade was exceedingly profitable. It was, superficially, a perfect case of America profiting from Europe's distresses. In 1790, American exports were valued at $2 million; they rose steadily during the wars of the French Revolution and then in 1805 began to soar, until they reached $108 million two years later—a peak not again scaled for twenty years. Unfortunately, each side, the British and the French, demanded this trade on its own terms, and submission to one entailed conflict with the other.
While Jefferson might try, as in the past, to play off one power against the other, little leverage was left for this game. After Admiral Horatio Nelson's victory at Trafalgar in the fall of 1805, Britain was supreme at sea, and after Napoleon's victory at Austerlitz in November, France was all-powerful on land. "What an awful spectacle does the world exhibit at this instance," Jefferson observed. "One nation bestriding the continent of Europe like a Colossus, and another roaming unbridled on the ocean." One could play fast and loose with the United States in the Atlantic, while the other lay beyond the reach of retaliation. Neither nation feared war with the United States, whose president prided himself on peace and had neither army nor navy to speak of. Both nations willfully violated American neutrality, although Britain, the sea monster, was the chief aggressor in Jefferson's eyes, with much more power than France to injure the United States.
In his annual message to Congress in December 1805 the president called attention to British aggressions at sea and moved to counteract the mistakenly pacifistic reputation of the administration. Without abandoning his conviction that nations would be led by their own reason and interest to treat the United States justly, he went on to say, "But should any nation deceive itself by false calculations, and disappoint that expectation, we must join in the unprofitable contest of trying which party can do the other the most harm." And he called upon Congress for defensive preparations: harbor fortifications, a fleet of gunboats, and a revitalized militia.
The conflict with Britain turned on two main issues: the neutral trade and impressment of seamen. The decision of a British vice admiralty court in the case of the ship Essex in 1805 marked a return to strict interpretation of the so-called Rule of 1756, under which a colonial trade closed in time of peace could not be opened in time of war. Thus ended British acquiescence in the burgeoning reexport trade of West Indian cargoes—Spanish and French as well as British—from American ports. In 1805 over half of American exports—the basis of prosperity—were, in fact, reexports. The United States government claimed that these belligerent cargoes were "neutralized" after passing through American customs and, upon reexport, were protected under the rule of "free ships make free goods." But Britain now declared this American trade fraudulent, representing "war in disguise" in tacit alliance with the French enemy, since its effect was to negate British maritime and naval superiority. British survival, it was said, demanded this more rigorous policy.
Jefferson viewed the Essex decision as only the latest chapter in the prolonged British campaign to subvert American wealth and power. The real aim was to put down a dangerous commercial rival and force the Atlantic trade back into channels profitable to Britain. Reason revolts, Jefferson observed, at the idea "that a belligerent takes to itself a commerce with its own enemy [France and the Continent] which it denies to a neutral, on the ground of its aiding that enemy in the war." After the Essex decision British cruisers hovered off American harbors and plundered American trade. Every ship, not only those carrying cargoes of colonial origin, was at risk; and the losses were heavy.
No less irritating and, in principle, more important was the British practice of impressment. Especially in wartime, British subjects were forcibly impressed into His Majesty's Navy. Many American seamen were caught in the net. In 1806, three years after the resumption of hostilities, Madison reported that 2,273 known American citizens had been impressed. Britain argued that many of them were in fact British subjects who had deserted, enlisted in the American merchant marine, and perhaps been furnished with fraudulent naturalization papers, all with the connivance of the government. There was some truth in this. The United States did not claim that the American flag protected absconding British subjects; neither did Britain claim the right to impress American citizens. But who was British and who was American? They spoke the same language, physical identification was impossible, and efforts to persuade seamen to carry nationality papers were unavailing.
The root of the problem lay in a conflict of laws. No natural-born British subject could throw off his allegiance. American naturalization laws were therefore ineffectual. In Jefferson's view, impressment assaulted the very existence of American nationality. "Certain it is," he wrote indignantly, "there can never be friendship, nor even the continuance of peace with England so long as no American citizen can leave his own shore without being seized by the first British officer he meets." Every seizure was a stinging reminder of past colonial servitude.
American diplomatic initiatives to settle these issues in 1806 produced a treaty negotiated by James Monroe and William Pinkney, the team of envoys in London. Pitt's sudden death and the formation of a new government that brought Charles James Fox, a longtime friend of the United States, into the foreign ministry, had brightened the prospects for reconciliation. They were quickly dashed, however, by Fox's untimely death. Negotiations were resumed under his successor, Lord Howick, but Jefferson abandoned hope of a favorable outcome.
When the Monroe-Pinkney treaty finally reached Washington in March 1807, Jefferson took one look at it, saw that it omitted the American ultimatum to end impressment and failed to secure crucial neutral rights claims as well, and angrily refused even to send it to the Senate. What Congress or the people might have thought of it would never be known; but in the present-day judgment of some diplomatic historians, the treaty went a long way toward meeting American claims and, had it been ratified, might have restored amicable relations between the two countries.
Instead, relations rapidly deteriorated. In June the Chesapeake-Leopard affair inflamed the entire country against Britain. The frigate Leopard , one of a British squadron patrolling off Hampton Roads, ordered the American frigate Chesapeake to submit to search for deserters, and when refused, the Leopard poured repeated broadsides into the defenseless frigate, killing three and wounding eighteen before its flag could be struck. Four alleged deserters were removed from the Chesapeake before it limped back to port.
The country rose up in wrath, regardless of party or section. There had been nothing like it since the Battle of Lexington, said Jefferson. War only awaited the snap of his fingers. He wanted no war, however, and chose to cool the crisis. Quietly, without fanfare, Jefferson ordered certain military preparations, but he declined to convene Congress immediately and, unlike his predecessor Adams, manufactured no war hysteria. Jefferson's hope, rather, was to use the affair as a potent new lever in negotiations with Britain—alas, to no avail.
"I suppose our fate will depend on the successes or reverses of Bonaparte," the president mused that summer. This was a hard fate indeed. "It is really mortifying that we should be forced to wish success to Bonaparte and to look to his victims as our salvation." Several months earlier the French emperor had issued the Berlin Decree, inaugurating his own system of economic warfare, the Continental System. The decree purported to place the British Isles in a state of blockade, making lawful prize of all ships trading with Britain. American carriers were exempted, so the decree did not overtly attack American neutrality. The fact that Napoleon could not possibly enforce such a blockade scarcely lessened its nuisance value.
Britain retaliated by an order-in-council throwing a blockade over that portion of the continental coast under French control. Then, in November 1807, after the surrender of Czar Alexander I to the Continental System, Britain closed all Europe to American trade except on monopolistic British terms. Only vessels that passed through British customs would be given clearance to open ports on the Continent. Napoleon replied by extending the Berlin Decree to the Americans and by issuing, in December, the Milan Decree, declaring that all vessels adhering to the British orders would be "denationalized" and made subject to seizure and condemnation as British property. Between the emperor's tightening Continental System and the British orders, American commerce was caught in the jaws of a vise, a maniacal war of blockades from which there seemed to be no appeal to reason or justice.
Meanwhile, Aaron Burr was pursued and captured with his fellow conspirators; he was then brought to trial at Richmond, Virginia, in April 1807. Jefferson had been slow to move against Burr, partly because of the mystery surrounding his plans and partly because of the risk of arresting the evidence of crime before it was ripe for execution; but once he became satisfied of Burr's complicity in treason, he moved with vigor and dispatch.
Never doubting that the conspiracy would fail, Jefferson made its suppression a clear test of the loyalty of the West and of the strength of republican government over a vast territory. The outcome vindicated his faith in both. Announcing suppression of the conspiracy to Congress, Jefferson unfortunately declared that Burr's guilt had been "placed beyond question." This was certainly the popular verdict. "But," as John Adams remarked at Quincy, "if his guilt is as clear as the noonday sun, the first magistrate of the nation ought not to have pronounced it so before a jury had tried him."
Jefferson busied himself in the difficult task of securing evidence to convict Burr. He was, in a sense, his own attorney general, and when Burr and his confederates came to trial at Richmond, Jefferson directed the prosecution from the White House. John Marshall was the presiding judge. Toward him Jefferson could not be detached, for he distrusted, even feared, Marshall more than he did Burr, and from the first moment, when Marshall decided to hold the culprit on no higher charge than misdemeanor and to release him on bail, Jefferson believed the trial would be made a party question. The little sect of Richmond Federalists, of whom Marshall had long been the chief, lionized Burr and made his cause their own.
During the grand jury proceedings, Marshall subpoenaed the president to appear in court with certain letters bearing on the actions of General Wilkinson, the conspiracy's chief betrayer. Jefferson refused to appear, citing his responsibilities as chief executive: "The Constitution enjoins his constant agency in the concerns of six millions of people. Is the law paramount to this, which calls on him on behalf of a single one?" The court backed off. Nothing required Jefferson's presence. He cooperated fully in the request for papers and offered to give testimony by deposition, but this was never requested.
The grand jury, heavily freighted with Republicans, returned an indictment for treason on 24 June. Under the Constitution conviction for treason required the testimony of two witnesses to the same overt act. As the trial went forward that summer, it gradually became apparent that the prosecution could not furnish the requisite testimony to such an act as constituted "levying war" against the United States. Marshall, in effect, instructed the jury to bring in a verdict of acquittal, which it did on 1 September.
Jefferson was angry but hardly surprised. In his opinion, the whole conduct of the trial had been political, and the verdict had been in view from the beginning. It was, he said, "equivalent to a proclamation of impunity to every traitorous combination which may be formed to destroy the Union." Counting on the public backlash against the decision, he proposed to mount a new campaign to restrain the power of the federal judiciary. That fall he laid the trial proceedings before Congress and urged it to furnish some remedy. Several state legislatures instructed their respective delegations to work for a constitutional amendment rendering judges removable by the president on the address of both houses of Congress. Since both president and Congress were preoccupied with foreign affairs, nothing came of this effort. This was fortunate, for in the long run the nation was better served by Marshall's political bias in the Burr case than by Jefferson's. Better that the scoundrel go free than be convicted on evidence that would introduce into American law the ancient English principle of "constructive treason." Jefferson could not indulge the luxury of this philosophy, of course. He had invested too much—politically, emotionally, ideologically—in another outcome.