On November 27, 1806, President Jefferson issued a proclamation stating that an unlawful military expedition against the dominions of Spain (Mexico) was planned. The proclamation indicated that conspirators were now fitting out and arming vessels in the western waters, collection provisions, arms and seducing honest and well-meaning citizens, under various pretences, to participate in the expedition. Jefferson warned all persons to "withdraw from [the enterprise] without delay...as they will answer the same at their peril, and incur prosecution with all the rigors of the law." The proclamation urged all officers, civil and military, to take whatever steps they could to bring the offending persons to punishment. The proclamation never mentioned Burr by name.
Three weeks later, Jefferson authorized his Secretary of the Navy to send a letter urging navy officials in New Orleans to help suppress the Burr expedition and, if possible, apprehend the conspirators:
Letter from Robert Smith, Secretary of the Navy, to Captain John Shaw,
the Commanding Naval Officer at New Orleans:
Navy Department, 20th December, 1806
Sir: A military expedition formed on the western waters by Colonel Burr will soon proceed down the Mississippi, and by the time you receive this letter will probably be near New Orleans. You will, by all the means in your power, aid the army and militia in suppressing this enterprise. You will, with your boats, take the best position to intercept and to take, and, if necessary, to destroy, the boats descending under the command of Colonel Burr, or of any person holding an appointment under him. There is great reliance on your vigilance and exertions. I have the honor to be, sir, your most obedient,
President Jefferson's Two Letters Concerning Burr's Request for Documents (June 1807)
The following letter (read in court on June 16, 1807 by George Hay) is Jefferson's answer to Hay's inquiry concerning the possibility of subpoena duces tecum issuing against the Executive. Hay said that the letter indicated the President's willingness to supply to the defense any necessary papers--so long as they are adequately specified--and that they would be furnished without the necessity of a subpoena.
Washington, June 12, 1807
Sir: Your letter of the 9th is this moment received. Reserving the necessary right of the president of the United States to decide, independently of all other authority, what papers coming to him as president the public interest permits to be communicated, and to whom, I assure you of my readiness under that restriction, voluntarily to furnish on all occasions whatever the purposes of justice may require. But the letter of General Wilkinson, of October 21st, requested for the defence of Colonel Burr, with every other paper relating to the charges against him, which were in my possession when the attorney general went on to Richmond in March. I then delivered to him; and I have always taken for granted he left the whole with you. If he did, and the bundle retains the order in which I had arranged it, you will readily find the letter desired under the date of its receipt which was November 25th; but lest the attorney general should not have left those papers with you, I this day write to him to forward this one by post. An uncertainty whether he be at Philadelphia, Wilmington, or New Castle, may produce delay in his receiving my letter, of which it is proper you should be apprised. But as I do not recollect the whole contents of that letter, I must beg leave to devolve on you the exercise of that discretion which it would be my right and duty to exercise, by withholding the communication of any parts of the letter which are not directly material for the purposes of justice. With this application, which is specific, a prompt compliance is practicable; but when the request goes to copies of the orders issued in relation to Colonel Burr to the officers at Orleans and Natchez, and by the secretaries of the war and navy departments, it seems to cover a correspondence of many months, with such a variety of officers civil and military, all over the United States, as would amount to the laying open of the whole executive books. I have desired the secretary of war to examine his official communications, and on a view of these we may be able to judge what can and ought to be done towards a compliance with the request. If the defendant allege that there was any particular order which, as a cause, produced any particular act on his part, then he must know what this order was, can specify it, and a prompt answer can be given. If the object had been specified, we might then have had some guide for our conjectures, as to what part of the executive records might be useful to him. But with a perfect willingness to do what is right, we are without the indications which may enable us to do it. If the researches of the secretary at war should produce anything proper for communication, and pertinent to any point we can conceive in the defence before the court, it shall be forwarded to you. I salute you with esteem and respect.
Prior to Hay's reading of Jefferson's letter of July 12, Burr's counsel had sent an express to Washington for papers relating to the Administration's response to the alleged Burr conspriacy, with a subpoena to the president. Jefferson responded to the subpoena with the following letter to Hay. In his letter, Jefferson agrees to submit to a deposition and turn over certain papers, but the President also claims that the Constitution recognizes a privilege for the Executive which allows him to withhold certain documents and permits him to refuse a demand to travel to Richmond to appear as a witness in the trial.
Washington, June 17, 1807
Sir: In answering your letter of the 9th, which desired a communication of one to me from General Wilkinson, specified by its date, I informed you in mine of the 12th that I had delivered it, with all other papers respecting the charges against Aaron Burr, to the attorney general when he went to Richmond; that I had supposed he had left them in your possession, but would immediately write to him, if he had not, to forward that particular letter without delay. I wrote to him accordingly on the same day, but having no answer I know not whether he has forwarded the letter. I stated in the same letter that I had desired the secretary of war to examine his office in order to comply with your further request to furnish copies of the orders which had been given respecting Aaron Burr and his property; and, in a subsequent letter of the same day, I forwarded you copies of two letters from the secretary at war, which appeared to be within the description expressed in your letter. The order from the secretary of the navy you said you were in possession of the receipt of these papers has, I presume, so far anticipated, and others this day forwarded, will have substantially fulfilled the object of a subpoena from the district court of Richmond, requiring that those officers and myself should attend the court in Richmond, with the letter of General Wilkinson, the answer to that letter, and the orders of the department of war and the navy therein generally described. No answer to General Wilkinson's letter, other than a mere acknowledgement of its receipt in a letter written for a different purpose, was ever written by myself or any other. To these communications of papers I will add, that if the defendant suppose there are any facts within the knowledge of the heads of departments or of myself, which can be useful for his defence, from a desire of doing anything our situation will permit in furtherance of justice, we shall be ready to give him the benefit of it, by way of deposition through any persons whom the court shall authorize to take our testimony at this place. I know indeed that this cannot be done but by consent of parties, and I therefore authorize you to give consent on the part of the United States. Mr Burr's consent will be given of course, if he suppose the testimony useful.
As to our personal attendance at Richmond, I am persuaded the court is sensible that paramount duties to the nation at large control the obligation of compliance with its summons in this case, as it would should we receive a similar one to attend the trials of Blennerhassett and others in the Mississippi territory, those instituted at St Louis and other places on the western waters, or at any place other than the seat of government. To comply with such calls would leave the nation without an executive branch, whose agency nevertheless is understood to be so constantly necessary that it is the sole branch which the constitution requires to be always in function. It could not, then, intend that it should be withdrawn from its station by any co-ordinate authority.
With respect to papers, there is certainly a public and private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary that, for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interest will permit publication. Hence, under our constitution, in requests of papers from the legislative to the executive branch, an exception is carefully expressed, 'as to those which he may deem the public welfare may require not to be disclosed,' as you will see in the inclosed resolution of the house of representatives, which produced the message of January 22d, respecting this case. The respect mutually due between the constituted authorities in their official intercourse, as well as sincere dispositions to do for every one what is just, will always insure from the executive, in exercising the duty of discrimination confided to him, the same candor and integrity to which the nation has, in like manner, trusted in the disposal of its judiciary authorities. Considering you as the organ for communicating these sentiments to the court, I address them to you for that purpose, and salute you with esteem and respect.
JEFFERSON'S SPECIAL MESSAGE TO CONGRESS
JANUARY 22, 1807
TO THE SENATE AND HOUSE OF REPRESENTATIVES OF THE UNITED STATES:
Agreeably to the request of the House of Representatives, communicated in their resolution of the sixteenth instant, I proceed to state under the reserve therein expressed, information received 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 I have pursued for suppressing the same.
I had for some time been in the constant expectation of receiving such further information as would have enabled me to lay before the legislature the termination as well as the beginning and progress of this scene of depravity, so far it has been acted on the Ohio and its waters. From this the state and safety of the lower country might have been estimated on probable grounds, and the delay was indulged the rather, because no circumstance had yet made it necessary to call in the aid of the legislative functions. Information now recently communicated has brought us nearly to the period contemplated. The mass of what I have received, in the course of these transactions, is voluminous, but little has been given under the sanction of an oath, so as to constitute formal and legal evidence. It is chiefly in the form of letters, often containing such a mixture of rumors, conjectures, and suspicions, as render it difficult to sift out the real facts, and unadvisable to hazard more than general outlines, strengthened by concurrent information, or the particular credibility of the relater. In this state of the evidence, delivered sometimes too under the restriction of private confidence, neither safety nor justice will permit the exposing names, except that of the principal actor, whose guilt is placed beyond question.
Some time in the latter part of September, I received intimations that designs were in agitation in the western country, unlawful and unfriendly to the peace of the Union; and that the prime mover in these was Aaron Burr, heretofore distinguished by the favor of his country. The grounds of these intimations being inconclusive, the objects uncertain, and the fidelity of that country known to be firm, the only measure taken was to urge the informants to use their best endeavors to get further insight into the designs and proceedings of the suspected persons, and to communicate them to me.
It was not until the latter part of October, that the objects of the conspiracy began to be perceived, but still so blended and involved in mystery that nothing distinct could be singled out for pursuit. In this state of uncertainty as to the crime contemplated, the acts done, and the legal course to be pursued, I thought it best to send to the scene where these things were principally in transaction, a person, in whose integrity, understanding, and discretion, entire confidence could be reposed, with instructions to investigate the plots going on, to enter into conference (for which he had sufficient credentials) with the governors and all other officers, civil and military, and with their aid to do on the spot whatever should be necessary to discover the designs of the conspirators, arrest their means, bring their persons to punishment, and to call out the force of the country to suppress any unlawful enterprise in which it should be found they were engaged. By this time it was known that many boats were under preparation, stores of provisions collecting, and an unusual number of suspicious characters in motion on the Ohio and its waters. Besides despatching the confidential agent to that quarter, orders were at the same time sent to the governors of the Orleans and Mississippi territories, and to the commanders of the land and naval forces there, to be on their guard against surprise, and in constant readiness to resist any enterprise which might be attempted on the vessels, posts, or other objects under their care; and on the 8th of November, instructions were forwarded to General Wilkinson to hasten an accommodation with the Spanish commander on the Sabine, and as soon as that was effected, to fall back with his principal force to the hither bank of the Mississippi, for the defence of the intersecting points on that river. By a letter received from that officer on the 25th of November, but dated October 21st, we learn that a confidential agent of Aaron Burr had been deputed to him, with communications partly written in cipher and partly oral, explaining his designs, exaggerating his resources, and making such offers of emolument and command, to engage him and the army in his unlawful enterprise, as he had flattered himself would be successful. The general, with the honor of a soldier and fidelity of a good citizen, immediately despatched a trusty officer to me with information of what had passed, proceeding to establish such an understanding with the Spanish commandant on the Sabine as permitted him to withdraw his force across the Mississippi, and to enter on measures for opposing the projected enterprise.
The general's letter, which came to hand on the 25th of November, as has been mentioned, and some other information received a few days earlier, when brought together, developed Burr's general designs, different parts of which only had been revealed to different informants. It appeared that he contemplated two distinct objects, which might be carried on either jointly or separately, and either the one or the other first, as circumstances should direct. One of these was the severance of the Union of these States by the Alleghany mountains; the other, an attack on Mexico. A third object was provided, merely ostensible, to wit: the settlement of a pretended purchase of a tract of country on the Washita, claimed by a Baron Bastrop. This was to serve as the pretext for all his 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 final discomfiture of both branches of his real design.
He found at once that the attachment of the western country to the present Union was not to be shaken; that its dissolution could not be effected with the consent of its inhabitants, and that his resources were inadequate, as yet, to effect it by force. He took his course then at once, determined to seize on New Orleans, plunder the bank there, possess himself of the military and naval stores, and proceed on his expedition to Mexico; and to this object all his means and preparations were now directed. He collected from all the quarters where himself or his agents possessed influence, all the ardent, restless, desperate, and disaffected persons who were ready for any enterprise analogous to their characters. He seduced good and well-meaning citizens, some by assurances that he possessed the confidence of the government and was acting under its secret patronage, a pretence which obtained some credit from the state of our differences with Spain; and others by offers of land in Bastrop's claim on the Washita.
This was the state of my information of his proceedings about the last of November, at which time, therefore, it was first possible to take specific measures to meet them. The proclamation of November 27th, two days after the receipt of General Wilkinson's information, was now issued. Orders were despatched to every intersecting point on the Ohio and Mississippi, from Pittsburg to New Orleans, for the employment of such force either of the regulars or of the militia, and of such proceedings also of the civil authorities, as might enable them to seize on all the boats and stores provided for the enterprise, to arrest the persons concerned, and to suppress effectually the further progress of the enterprise. A little before the receipt of these orders in the State of Ohio, our confidential agent, who had been diligently employed in investigating the conspiracy, had acquired sufficient information to open himself to the governor of that State, and apply for the immediate exertion of the authority and power of the State to crush the combination. Governor Tiffin and the legislature, with a promptitude, an energy, and patriotic zeal, which entitle them to a distinguished place in the affection of their sister States, effected the seizure of all the boats, provisions, and other preparations within their reach, and thus gave a first blow, materially disabling the enterprise in its outset.
In Kentucky, a premature attempt to bring Burr to justice, without sufficient evidence for his conviction, had produced a popular impression in his favor, and a general disbelief of his guilt. This gave him an unfortunate opportunity of hastening his equipments. The arrival of the proclamation and orders, and the application and information of our confidential agent, at length awakened the authorities of that State to the truth, and then produced the same promptitude and energy of which the neighboring State had set the example. Under an act of their legislature of December 23d, militia was instantly ordered to different important points, and measures taken for doing whatever could yet be done. Some boats (accounts vary from five to double or treble that number) and persons (differently estimated from one to three hundred) had in the meantime passed the falls of the Ohio, to rendezvous at the mouth of the Cumberland, with others expected down that river.
Not apprized, till very late, that any boats were building on Cumberland, the effect of the proclamation had been trusted to for some time in the State of Tennessee; but on the 19th of December, similar communications and instructions with those of the neighboring States were despatched by express to the governor, and a general officer of the western division of the State, and on the 23d of December our confidential agent left Frankfort for Nashville, to put into activity the means of that State also. But by information received yesterday I learn that on the 22d of December, Mr. Burr descended the Cumberland with two boats merely of accommodation, carrying with him from that State no quota toward his unlawful enterprise. Whether after the arrival of the proclamation, of the orders, or of our agent, any exertion which could be made by that State, or the orders of the governor of Kentucky for calling out the militia at the mouth of Cumberland, would be in time to arrest these boats, and those from the falls of the Ohio, is still doubtful.
On the whole, the fugitives from Ohio, with their associates from Cumberland, or any other place in that quarter, cannot threaten serious danger to the city of New Orleans.
By the same express of December nineteenth, orders were sent to the governors of New Orleans and Mississippi, supplementary to those which had been given on the twenty-fifth of November, to hold the militia of their territories in readiness to co-operate for their defence, with the regular troops and armed vessels then under command of General Wilkinson. Great alarm, indeed, was excited at New Orleans by the exaggerated accounts of Mr. Burr, disseminated through his emissaries, of the armies and navies he was to assemble there. General Wilkinson had arrived there himself on the 24th of November and had immediately put into activity the resources of the place for the purpose of its defence; and on the tenth of December he was joined by his troops from the Sabine. Great zeal was shown by the inhabitants generally, the merchants of the place readily agreeing to the most laudable exertions and sacrifices for manning the armed vessels with their seamen, and the other citizens manifesting unequivocal fidelity to the Union, and a spirit of determined resistance to their expected assailants.
Surmises have been hazarded that this enterprise is to receive aid from certain foreign powers. But these surmises are without proof or probability. The wisdom of the measures sanctioned by Congress at its last session had placed us in the paths of peace and justice with the only powers with whom we had any differences, and nothing has happened since which makes it either their interest or ours to pursue another course. No change of measures has taken place on our part; none ought to take place at this time. With the one, friendly arrangement was then proposed, and the law deemed necessary on the failure of that was suspended to give time for a fair trial of the issue. With the same power, negotiation is still preferred and provisional measures only are necessary to meet the event of rupture. While, therefore, we do not deflect in the slightest degree from the course we then assumed, and are still pursuing, with mutual consent, to restore a good understanding, we are not to impute to them practices as irreconcilable to interest as to good faith, and changing necessarily the relations of peace and justice between us to those of war. These surmises are, therefore, to be imputed to the vauntings of the author of this enterprise, to multiply his partisans by magnifying the belief of his prospects and support.
By letters from General Wilkinson, of the 14th and 18th of September, which came to hand two days after date of the resolution of the House of Representatives, that is to say, on the morning of the 18th instant, I received the important affidavit, a copy of which I now communicate, with extracts of so much of the letters as come within the scope of the resolution. By these it will be seen that of three of the principal emissaries of Mr. Burr, whom the general had caused to be apprehended, one had been liberated by habeas corpus, and the two others, being those particularly employed in the endeavor to corrupt the general and army of the United States, have been embarked by him for our ports in the Atlantic States, probably on the consideration that an impartial trial could not be expected during the present agitations of New Orleans, and that that city was not as yet a safe place of confinement. As soon as these persons shall arrive, they will be delivered to the custody of the law, and left to such course of trial, both as to place and process, as its functionaries may direct. The presence of the highest judicial authorities, to be assembled at this place within a few days, the means of pursuing a sounder course of proceedings here than elsewhere, and the aid of the executive means, should the judges have occasion to use them, render it equally desirable for the criminals as for the public, that being already removed from the place where they were first apprehended, the first regular arrest should take place here, and the course of proceedings receive here its proper direction.