The Insurrection Act of 1807 has been in the news quite a bit this past week with lots of people talking about what it is and whether it is applicable in today’s situation. Here at the Academy of Knowledge, with our focus on 18th and early 19th century history, the question that came to mind was how did this law come into being and why? What happened in the early years of the United States that caused our government to feel the need for such a law. Today we will look back and examine the events that caused Congress to pass this and why.
Aaron Burr
Aaron Burr was the son of Aaron Burr, Sr. — the second president of Princeton, and was the grandson of Jonathan Edwards. He graduated at 16 from the College of New Jersey as a student of theology, but later switched his career track to study law. He began his military service around 1775 and by 1776 was called to join Gen. Washington’s Staff, however, he and Washington did not get along and he left a few weeks later, eventually becoming the Aide-de-Camp to General Israel Putnam. He spent the winter of 1777-78 at Valley Forge and then, commissioned a Lt. Colonel, he became the commander of the regiment at age 21. In March of 1779 he resigned his commission, claiming ill health.
By the fall of the following year, he resumed his career as a student of law. Admitted to the bar in New York in 1782, he moved to New York City in 1783 and shared a practice with Alexander Hamilton. Burr served in the New York State Assembly from 1784 to 1785. In 1789, Governor George Clinton named him Attorney General thus launching his political career and his serious involvement in politics. In 1791, Burr ran for, and was elected to, the US Senate. He defeated incumbent General Phillip Shuyler, who happened to be the father-in-law and political mentor of Alexander Hamilton. In all likelihood, it was this that began the enmity between Burr and Hamilton.
After one six-year term in the Senate, Burr ran for president in 1796 and again in 1800. Burr came in fourth in 1796. John Adams won the presidency, with Jefferson as Vice-President. By 1800, Adams' popularity had waned, as did support for his Federalist Party. Jefferson and Burr, both members of the opposition Democratic-Republican party, tied for first place with 73 electoral votes each. The House of Representatives broke the tie and selected Jefferson as President, with Burr as Vice President. In the 1804 election, Jefferson, who never trusted Burr and effectively shut him out of party matters, chose George Clinton as his running mate.
When it became clear that Jefferson would drop Burr from his ticket in the 1804 election, Burr ran for Governor of New York instead. He lost the election in a landslide to little known Morgan Lewis. Burr blamed his loss on a personal smear campaign orchestrated, he believed, by his party rivals, including New York governor George Clinton and Alexander Hamilton. The publication of a letter from Dr. Charles Cooper to Phillip Schuyler claiming to quote Hamilton as saying that Hamilton’s judgement of Burr was that he was “a dangerous man, and one who ought not be trusted with the reins of government” was the last straw. If Burr allowed this insult to stand, his character and political career would be ruined. Burr responded by challenging Hamilton to a duel. They met in Wehawken NJ on July 11, 1804. Hamilton missed, but Burr’s shot hit Hamilton who died from his wounds. Burr was charged with multiple crimes, including murder, in New York and New Jersey. He fled to South Carolina, where his daughter lived with her family, but soon returned to Philadelphia and then to Washington to complete his term as vice president. Eventually, the authorities in New York and New Jersey dropped all the charges against him but it made no difference. Even though not found guilty of killing Alexander Hamilton, public opinion turned against Burr. Realizing that he had no future on the east coast, Burr, in a frantic effort to salvage his destroyed political power and heavily in debt, conceived a plan to seek political fortunes beyond the Alleghenies.
Burr’s Conspiracy
He first contacted the British Minister, Anthony Merry, living in Philadelphia. He offered Merry his services in any efforts by Great Britain to take control over the western part of the United States. Merry, who hated the United States, wrote his Foreign Ministry that while Burr was notoriously profligate, nevertheless, his ambition and spirit of revenge would be useful to the British government. Merry became a staunch supporter of Burr's schemes.
One of Burr's schemes was to organize a revolution in the West, take the Ohio and Mississippi Valleys and form them into a separate republic. His other scheme was to set up a republic bordering the United States by seizing Spanish possessions. To gain further support for his plans, Burr approached an old friend, General James Wilkinson; both had served as aides to then Colonel Benedict Arnold during the Quebec expedition.
Wilkerson, who was chronically short of money due to his lavish spending, looked to supplement his income by becoming a spy for the Spanish. Known simply as “Agent 13”, Wilkinson’s early efforts focused on an attempt to separate Kentucky and Tennessee from the United States and deliver them to Spain. Later, Wilkinson informed the Spanish about the Lewis and Clark expedition. Although the Spanish did not manage to find them, one can imagine that if the Spanish did catch up with them, Lewis and Clark would have simply disappeared.
In April 1805 Burr began to put his plans into motion. He again approached the British via Minister Merry. He informed Merry that Louisiana was ready to break with the United States and once it did all the western country would follow suit. To be successful, Burr asked that Britain assure his protection, provide him with a half of million-dollar loan, and dispatch a British naval squadron to the mouth of the Mississippi River. The British might have entertained Burr's requests, but Prime Minister Pitt died and Charles James Fox, a life-long friend of the United States replaced him. Fox considered the Merry-Burr discussions indiscreet, dangerous, and damnable and recalled Merry to England on June 1, 1806.
Burr then headed west across Pennsylvania and down the Ohio River, stopping to visit Harman Blennerhassett, a wealthy, gentleman-scholar and Irish emigrant, who lived with his wife Margaret on an island in the middle of the river. Burr explained his plan to Blennerhassett, who enthusiastically expressed his support. In September 1806, Blennerhassett ordered the construction of fifteen boats. Burr and Blennerhassett would use the vessels to transport up to five hundred followers to the site of their new empire. Blennerhassett spent his entire fortune paying for the planned expedition.
By the end of August 1806, Burr returned to Blennerhasset’s Island, making final preparations for his expedition. Burr brought with him to the island a force of less than fifty men, which he planned to be the nucleus of a conquering army. He contracted for a large keel boat for transporting provisions and made orders for huge quantities of pork, corn meal, flour, and whiskey. Burr and his men planned to head down the Mississippi to confer with Wilkerson, then in New Orleans.
Things fall apart
In early October, a ciphered letter sent by Burr reached Wilkinson in New Orleans.
I have obtained funds, and have actually commenced the enterprise. Detachments from different points under different pretenses will rendezvous on the Ohio, 1st November– everything internal and external favors views–protection of England is secured.
T[ruxton] is gone to Jamaica to arrange with the admiral on that station, and will meet at the Mississippi– England—Navy of the United States are ready to join, and final orders are given to my friends and followers–it will be a host of choice spirits. Wilkinson shall be second to Burr only–Wilkinson shall dictate the rank and promotion of his officers.
Burr will proceed westward 1st August, never to return: with him go his daughter–the husband will follow in October with a corps of worthies. Send forthwith an intelligent and confidential friend with whom Burr may confer. He shall return immediately with further interesting details–this is essential to concert and harmony of the movement….
[T]he project is brought to the point so long desired: Burr guarantees the result with his life and honor–the lives, the honor and fortunes of hundreds, the best blood of our country. Burr’s plan of operations is to move rapidly from the falls on the 15th of November, with the first five hundred or one thousand men, in light boats now constructing for that purpose–to be at Natchez between the 5th and 15th of December–then to meet Wilkinson–then to determine whether it will be expedient in the first instance to seize on or pass by Baton Rouge.
On receipt of this send Burr an answer–draw on Burr for all expenses, &c. The people of the country to which we are going are prepared to receive us–their agents now with Burr say that if we will protect their religion, and will not subject them to a foreign power, that in three weeks all will be settled.
The gods invite to glory and fortune–it remains to be seen whether we deserve the boon…. –29th July.
Wilkinson, however, was able to see through Burr’s upbeat message. With the change in leadership in England, he feared that British support for the plan would never materialize thus ensuring a grim outcome for Burr’s army. With little chance of success, Wilkinson chose to try to save his own skin and dropped out of the conspiracy, rushing troops to the Mississippi Valley and placing the New Orleans garrison on the alert for an attack. He sent Burr’s ciphered letter, in clear text, together with one from another conspirator, to President Jefferson.
Jefferson’s response
Even before receiving these letters from Wilkinson, President Jefferson must have had some inkling of what was happening and talked with or wrote to Secretary of State James Madison about the legality of using federal troops to stop Burr. On 30 October 1806, Madison wrote to Jefferson to tell him that “it does not appear that regular Troops can be employed, under any legal provision agst. insurrections–but only agst. expeditions having foreign Countries for the object”.
With this in mind, President Jefferson requested help from the Governors of Virginia and Ohio. Governor Tipton sent Ohio militias to stop boat traffic on the Ohio and Muskingum Rivers while Governor William Cabell sent Virginia militia to seize Blennerhassett Island and arrest Harmon Blennerhassett, who was not there when the troops arrived.
A militia detachment of thirty men caught up with Burr, and his expedition of between sixty and one hundred men, camped across from Natchez, on the west bank of the Mississippi. Burr was handed a letter from the Governor of Mississippi demanding his surrender. Burr responded to the letter by denouncing Wilkinson rather than complying.
On November 27, two days after he received Wilkinson’s letter, Jefferson issued a proclamation calling for Burr and the conspirators to turn themselves in. Since he did not believe he had the constitutional authority to use federal troops to stop Burr, he had to settle for a strongly worded message. He also sent the following message to Congress:
“Having recieved information that in another part of the US a great number of private individuals, were combining together, arming & organising themselves contrary to law to carry on a military expedition against the territories of Spain I thought it necessary by proclamation, as well as by special orders, to take measures for preventing & suppressing this enterprize, for siezing the vessels, arms & other means provided for it, & for arresting & bringing to justice it’s authors & abettors. These measures are now in operation. It was due to the good faith which ought ever to be the rule of action in public as well as in private transactions, it was due to good order & regular govmt. that while the public force was acting strictly on the defensive, and merely to cover our citizens from aggression, the criminal attempts of private individuals to decide for their country the question of Peace or War, & by commencg active & unauthorised hostilities, should be promptly & effectually suppressed.”
Jefferson argued that, if the government was to be protected via legal and authorized actions, the Congress needed to pass a law making plotting against the United States government by its citizens illegal.
Jefferson’s opponents, the Federalists, mocked the proclamation and the message to Congress. They derided his suggestion that the Constitution did not give him the power to use federal troops to arrest the organizers of a military enterprise against the United States. ”It is a self evident truth,” a writer in the New-England Evening Post remarked, “that every nation is under a moral obligation to provide for its self preservation, and as a consequence, that it has a right to make use of all proper means necessary to that end.” Federalists insisted that even without a specific law, the government had “the power & of course the means [for] preventing any insurrection or enterprize on the public peace or safety”.
Jefferson and most Republicans believed otherwise, rejecting the common-law view that the United States’ mere existence as a country sufficed to make some acts illegal. They argued, instead, that the Constitution granted only limited and specific powers to the federal government. It defined treason as, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court” but did not make either conspiring to commit treason or preparing to commit treason a crime.
In the end, Congress gave Jefferson his act authorizing him to use Federal troops to thwart plots against the US by its citizens. On December 19, 1806, Jefferson enclosed a copy of a bill on insurrections in a letter to John Dawson. It read:
A Bill authorising the emploiment of the land or Naval forces of the US in cases of insurrection.
Be it enacted &c. . . . that in all cases of insurrection & of obstruction to the laws of the US, or of any individual state or territory, where it is lawful for the Presidt. of the US to call forth militia to suppress such insurrection, or to cause the laws to be duly executed, it shall also be lawful for him to employ for the same purposes, such part of the land or naval forces of the US as shall be judged necessary, under the same restrictions & conditions as are by law provided & required on the emploiment of militia in the same case.
The insurrection bill became law on March 3, 1807, eleven days after Burr’s arrest in Alabama on February 19 and too late to be of use in this situation.
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REFERENCES
Bomboy, Scott. Aaron Burr's trial and the Constitution's treason clause. 01 September 2019. National Constitution Center. 02 June 2020. <https://constitutioncenter.org/blog/the-great-trial-that-tested-the-constitutions-treason-clause>.
Brammer, Robert. General James Wilkinson, the Spanish Spy Who was a Senior Officer in the U.S. Army. 21 April 2020. 03 June 2020. <https://blogs.loc.gov/law/2020/04/general-james-wilkinson-the-spanish-spy-who-commanded-the-u-s-army-during-four-presidential-administrations/>.
CI Reader Volume 1 Chapter 1 The Burr Conspiracy. Ed. Frank J. Rafalko. n.d. Federation of American Scientists. 01 June 2020.
Fea, John. The History Behind the Insurrection Act of 1807. 02 June 2020. 04 June 2020. <https://thewayofimprovement.com/2020/06/02/the-history-behind-the-insurrection-act-of-1807/>.
Fitch, Raymond. Breaking with Burr: Harman Blennerhassett's Journal, 1807. Athens, OH: Ohio University Press, 1968.
PBS & WGBH. The Burr Conspiracy | American Experiance. n.d. 03 June 2020. <https://www.pbs.org/wgbh/americanexperience/features/duel-burr-conspiracy/>.
Safford, William H. Life of Harman Blennerhassett. Chillicothe, OH: Ely, Allen & Looker, 1850.