Chapter IX: What Is Treason? (1)

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. (Constitution, Article III, Section 3.)

Such are the jealous provisions of our laws in favor of the
accused that I question if he can be convicted. (Jefferson.)

The scenes which have passed and those about to be transacted
will hereafter be deemed fables, unless attested by very high
authority. (Aaron Burr.)

That this court dares not usurp power is most true. That this
court dares not shrink from its duty is no less true.
(Marshall.)

While the grand jury had been examining witnesses, interesting things had taken place in Richmond. Burr's friends increased in number and devotion. Many of them accompanied him to and from court each day.[1153] Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.[1154] Fashionable Richmond was rapidly becoming Burr-partisan. In society, as at the bar, the Government had been maneuvered into defense. Throughout the country, indeed, Burr's numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, "even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests--or would make greater sacrifices to aid him than this man."[1155] But this availed Burr nothing as against the opinion of the multitude, which Jefferson manipulated as he chose. Indeed, save in Richmond, this very fidelity of Burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his followers to aggressive action. On the streets, in the taverns and drinking-places, his adherents grew bolder. Young Swartwout chanced to meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower[1156] shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On learning of the incident Jackson "was wild with delight."[1157] Burr's enemies were as furious with anger. To spirited Virginians, only treason itself was worse than the refusal of Wilkinson, thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public impression of Wilkinson's cowardice. He challenged the General to a duel; the hero refused--"he held no correspondence with traitors or conspirators," he loftily observed;[1158] whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the American armies as guilty of treachery, perjury, forgery, and cowardice.[1159] The highest officer in the American military establishment "posted for cowardice" by a mere stripling! More than ever was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted, Wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward Burr; and he wrote to Jefferson in unctuous horror: "I had anticipated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour--... To my Astonishment I found the Traitor vindicated & myself condemned by a Mass of Wealth Character-influence & Talents--merciful God what a Spectacle did I behold--Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant."[1160]

Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. Accept I pray, my salutations and assurances of respect and esteem."[1161]

Before the grand jury had indicted Burr and Blennerhassett, Wilkinson suffered another humiliation. On the very day that the General sent his wailing cry of outraged virtue to the President, Burr gave notice that he would move that an attachment should issue against Jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.[1162] The following day was consumed in argument upon the motion that did not rise far above bickering. Marshall ruled that witnesses should be heard in support of Burr's application, and that Wilkinson ought to be present.[1163] Accordingly, the General was ordered to come into court.

James Knox, one of the young men who had accompanied Burr on his disastrous expedition, had been brought from New Orleans as a witness for the Government. He told a straightforward story of brutality inflicted upon him because he could not readily answer the printed questions sent out by Jefferson's Attorney-General.[1164] By other witnesses it appeared that letters had been improperly taken from the post-office in New Orleans.[1165] An argument followed in which counsel on both sides distinguished themselves by the learning and eloquence they displayed.[1166]

It was while Botts was speaking on this motion to attach Wilkinson, that the grand jury returned the bills of indictment.[1167] So came the dramatic climax.

Instantly the argument over the attachment of Wilkinson was suspended. Burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.[1168] Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ... had been impeached for perjury," or new testimony had been presented to the court.[1169] For once in his life, Martin could not answer immediately and offhand. So that night Aaron Burr slept in the common jail at Richmond.

"The cup of bitterness has been administered to him with unsparing hand," wrote Washington Irving.[1170] But he did not quail. He was released next morning upon a writ of habeas corpus;[1171] the argument on the request for the attachment of Wilkinson was resumed, and for three days counsel attacked and counter-attacked.[1172] On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the house occupied by Luther Martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men. Burr pleaded not guilty to the indictments against him, and orders were given for summoning the jury to try him.[1173]

Finally, Marshall delivered his written opinion upon the motion to attach Wilkinson. It was unimportant, and held that Wilkinson had not been shown to have influenced the judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on August 3 from Wood County, in which Blennerhassett's island was located, and where the indictment charged that the crime had been committed.[1174]

Five days before Marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of Burr, how unshakable the tenacity with which Jefferson pursued him.

On June 22, 1807, the British warship, the Leopard, halted the American frigate, the Chesapeake, as the latter was putting out to sea from Norfolk. The British officers demanded of Commodore James Barron to search the American ship for British deserters and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. The Chesapeake had not been fitted out, was unable to reply, and finally was forced to strike her colors. The British officers then came on board and seized the men they claimed as deserters, all but one of whom were American-born citizens.[1175]

The whole country, except New England, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. Quickly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,[1176] committed by a foreign power in American waters, weaken for a moment the President's determination to punish the native disturber of our domestic felicity.

The news of the Chesapeake outrage arrived at Richmond on June 25, and John Randolph supposed that, of course, Jefferson would immediately call Congress in special session.[1177] The President did nothing of the kind. Wilkinson, as Commander of the Army, advised him against armed retaliation. The "late outrage by the British," wrote the General, "has produced ... a degree of Emotion bordering on rage--I revere the Honourable impulse but fear its Effects--... The present is no moment for precipitancy or a stretch of power--on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage--... The efforts made here [Richmond] by a band of depraved Citizens, in conjunction with an audacious phalanx of insolent exotics, to save Burr, will have an ultimate good Effect, for the national Character of the _Ancient dominion_ is in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within."

Wilkinson tells Jefferson that he is coming to Washington forthwith to pay his "respects," and concludes: "You are doubtless well advised of proceedings here in the case of Burr--to me they are incomprehensible as I am no Jurist--The Grand Jury actually made an attempt to present me for Misprision of Treason--... I feel myself between 'Scylla and Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr & his Conspirators for performing it--"[1178]

Not until five weeks after the Chesapeake affair did the President call Congress to convene in special session on October 26--more than four months after the occurrence of the crisis it was summoned to consider.[1179] But in the meantime Jefferson had sent a messenger to advise the American Minister in London to tell the British Government what had happened, and to demand a disavowal and an apology.

Meanwhile, the Administration vigorously pushed the prosecution of the imprisoned "traitor" at Richmond.[1180] Hay was dissatisfied that Burr should remain in Martin's house, even under guard and with windows barred and door locked; and he obtained from the Executive Council of Virginia a tender to the court of "apartments on the third floor" of the State Penitentiary for the incarceration of the prisoner. Burr's counsel strenuously objected, but Marshall ordered that he be confined there until August 2, at which time he should be returned to the barred and padlocked room in Martin's house.[1181]

In the penitentiary, "situated in a solitary place among the hills" a mile and a half from Richmond,[1182] Burr remained for five weeks. Three large rooms were given him in the third story; the jailer was considerate and kind; his friends called on him every day;[1183] and servants constantly "arrived with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice and some ordinary articles."[1184]

Burr wrote Theodosia of his many visitors, women as well as men: "It is well that I have an ante-chamber, or I should often be _gêné_ with visitors." If Theodosia should come on for the trial, he playfully admonishes her that there must be "no agitations, no complaints, no fears or anxieties on the road, or I renounce thee."[1185]

Finally Burr asked his daughter to come to him: "I want an independent and discerning witness to my conduct and that of the government. The scenes which have passed and those about to be transacted will exceed all reasonable credibility, and will hereafter be deemed fables, unless attested by very high authority.... I should never invite any one, much less those so dear to me, to witness my disgrace. I may be immured in dungeons, chained, murdered in legal form, but I cannot be humiliated or disgraced. If absent, you will suffer great solicitude. In my presence you will feel none, whatever be the _malice_ or the _power_ of my enemies, and in both they abound."[1186]

Theodosia was soon with her father. Her husband, Joseph Alston, now Governor of South Carolina, accompanied her; and she brought her little son, who, almost as much as his beautiful mother, was the delight of Burr's heart.

During these torrid weeks the public temper throughout the country rose with the thermometer.[1187] The popular distrust of Marshall grew into open hostility. A report of the proceedings, down to the time when Burr was indicted for treason, was published in a thick pamphlet and sold all over Virginia and neighboring States. The impression which the people thus acquired was that Marshall was protecting Burr; for had he not refused to imprison him until the grand jury indicted the "traitor"?

The Chief Justice estimated the situation accurately. He knew, moreover, that prosecutions for treason might be instituted thereafter in other parts of the country, particularly in New England. The Federalist leaders in that section had already spoken and written sentiments as disloyal, essentially, as those now attributed to Burr; and, at that very time, when the outcry against Burr was loudest, they were beginning to revive their project of seceding from the Union.[1188] To so excellent a politician and so far-seeing a statesman as Marshall, it must have seemed probable that his party friends in New England might be brought before the courts to answer to the same charge as that against Aaron Burr.

At all events, he took, at this time, a wise and characteristically prudent step. Four days after the news of the Chesapeake affair reached Richmond, the Chief Justice asked his associates on the Supreme Bench for their opinion on the law of treason as presented in the case of Aaron Burr. "I am aware," he wrote, "of the unwillingness with which a judge will commit himself by an opinion on a case not before him, and on which he has heard no argument. Could this case be readily carried before the Supreme Court, I would not ask an opinion in its present stage. But these questions must be decided by the judges separately on their respective circuits, and I am sure that there would be a strong and general repugnance to giving contradictory decisions on the same points. Such a circumstance would be disreputable to the judges themselves as well as to our judicial system. This suggestion suggests the propriety of a consultation on new and different subjects and will, I trust, apologize for this letter."[1189]

Whether a consultation was held during the five weeks that the Burr trial was suspended is not known. But if the members of the Supreme Court did not meet the Chief Justice, it would appear to be certain that they wrote him their views of the American law of treason; and that, in the crucial opinion which Marshall delivered on that subject more than two months after he had written to his associates, he stated their mature judgments as well as his own.

It was, therefore, with a composure, unwonted even for him, that Marshall again opened court on August 3, 1807. The crowd was, if possible, greater than ever. Burr entered the hall with his son-in-law, Governor Alston.[1190] Not until a week later was counsel for the Government ready to proceed. When at last the men summoned to serve on the petit jury were examined as to their qualifications, it was all but impossible to find one impartial man among them--utterly impossible to secure one who had not formed opinions from what, for months, had been printed in the newspapers.

Marshall described with fairness the indispensable qualifications of a juror.[1191] Men were rejected as fast as they were questioned--all had read the stories and editorial opinions that had filled the press, and had accepted the deliberate judgment of Jefferson and the editors; also, they had been impressed by the public clamor thus created, and believed Burr guilty of treason. Out of forty-eight men examined during the first day, only four could be accepted.[1192]

While the examination of jurors was in progress, one of the most brilliant debates of the entire trial sprang up, as to the nature and extent of opinions formed which would exclude a man from serving on a jury.[1193]

When Marshall was ready to deliver his opinion, he had heard all the reasoning that great lawyers could give on the subject, and had listened to acute analyses of all the authorities. His statement of the law was the ablest opinion he had yet delivered during the proceedings, and is an admirable example of his best logical method. It appears, however, to have been unnecessary, and was doubtless delivered as a part of Marshall's carefully considered plan to go to the extreme throughout the trial in the hearing and examination of every subject.[1194]

For nearly two weeks the efforts to select a jury continued. Not until August 15 were twelve men secured, and most of these avowed that they had formed opinions that Burr was a traitor. They were accepted only because impartial men could not be found.

When Marshall finished the reading of his opinion, Hay promptly advised Jefferson that "the [bi]as of Judge Marshall is as obvious, as if it was [stam]ped upon his forehead.... [He is] endeavoring to work himself up to a state of [f]eeling which will enable [him] to aid Burr throughout the trial, without appearing to be conscious of doing wrong. He [Marshall] seems to think that his reputation is irretrievably gone, and that he has now nothing to lose by doing as he pleases.--His concern for Burr is wonderful. He told me many years ago, when Burr was rising in the estimation of the republican party, that he was as profligate in principle, as he was desperate in fortune. I remember his words. They astonished me.

"Yet," complained Hay, "when the Gr: Jury brought in their bill the Chief Justice gazed at him, for a long time, without appearing conscious that he was doing so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit without _palpable_ emotion. If Mr. Burr has any feeling left, yesterday must have been a day of agonizing humiliation," because the answers of the jurors had been uniformly against him; and Hay gleefully relates specimens of them.

"There is but one chance for the accused," he continued, "and that is a good one because it rests with the Chief Justice. It is already hinted, but not by himself [that] the decision of the Supreme Court will no[t be] deemed binding. If the assembly of men on [Blennerhassett's is]land, can be pronounced 'not an overt act' [it will] be so pronounced."[1195]

Hay's opening statement to the jury was his best performance of the entire proceedings. He described Burr's purpose in almost the very words of Jefferson's Special Message. The gathering on Blennerhassett's island was, he said, the overt act; Burr, it was true, was not there at the time, but his presence was not necessary. Had not Marshall, in the Bollmann and Swartwout case, said that "if war be actually levied, ... _all those who perform any part, however minute_, or _however remote from the scene of action_, and who are actually _leagued in the general conspiracy, are to be considered_ as _traitors_"?[1196]

The examination of the Government's witnesses began. Eaton took the stand; but Burr insisted that the overt act must be proved before collateral testimony could be admitted. So came the first crossing of swords over the point that was to save the life of Aaron Burr. The arguments of counsel were brilliant; but neither side forgot the public. They must thrill the audience as well as convince the court. "There had been a great deal of war in the newspapers," said Wickham, but everybody knew "that there had been no war in fact." Wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." Martin pointed out that Eaton's testimony did not "relate to any _acts_ committed any where, but to mere declarations out of the district."[1197] Let the evidence be pertinent. The indictment charged a specific act, and it must be proved as charged. No man could be expected suddenly to answer for every act of his life. If Burr had planned to free Mexico and had succeeded, "he would have merited the applause of the friends of liberty and of posterity; ... but his friends may now pray that he may not meet the fate that Washington himself would have met, if the revolution had not been established."

A mass of decisions, English as well as American, were cited by both Wirt and Martin;[1198] and when, that night, Marshall began to write his opinion on whether the overt act must be proved before other testimony could be received, all authorities had been reviewed, all arguments made.

Must the overt act be proved before hearing collateral testimony? The question, said Marshall, was precisely the same as that raised and decided on the motion to commit Burr. But it came up now under different circumstances--an indictment had been found "specifying a charge which is to be proved," and thus "an issue made up which presents a point to which all the testimony must apply." So Marshall could now "determine, with some accuracy, on the relevancy of the testimony."

The prosecution contended that the crime consisted of "the fact and the intention," and that the Government might first prove either of these; the defense insisted that the overt act must be shown before any testimony, explanatory or confirmatory of that fact, can be received. To prove first the fact charged was certainly "the most useful ... and ... natural order of testimony"; but no fixed rule of evidence required it, and no case had been cited in which any court had ever "forced" it on counsel for the prosecution.

The different impressions made upon the minds of the jury by the order of testimony was important, said Marshall: "Although human laws punish actions, the human mind spontaneously attaches guilt to intentions." When testimony had prepared the mind to look upon the prisoner's designs as criminal, a jury would consider a fact in a different light than if it had been proved before guilty intentions had been shown. However, since no rule prevented the prosecution from first proving either, "no alteration of that arrangement ... will now be directed."

But, continued Marshall, "the intention which is ... relevant in this stage of the inquiry is the intention which composes a part of the crime, the intention with which the overt act itself was committed; not a general evil disposition, or an intention to commit a distinct [different] fact." Testimony as to such intentions, "if admissible at all, is received as corroborative or confirmatory testimony," and could not precede "that which it is to corroborate or confirm."

Apply this rule to Eaton's testimony: it would be admissible only "so far as his testimony relate[d] to the fact charged in the indictment, ... to levying war on Blennerhassett's island," and the "design to seize on New-Orleans, or to separate by force, the western from the Atlantic states"; but "so far as it respect[ed] other plans to be executed in the city of Washington, or elsewhere," Eaton's story would be at best merely "corroborative testimony," and, "if admissible at any time," could be received only "after hearing that which it is to confirm."

So let Hay "proceed according to his own judgment." Marshall would not exclude any testimony except that which appeared to be irrelevant, and upon this he would decide when it was offered.[1199]

Again Eaton was called to the stand. Before he began his tale, he wished to explain "the motives" of his "own conduct." Marshall blandly suggested that the witness stick to Burr's revelations to him. Then, said Eaton, "concerning any overt act, which goes to prove Aaron Burr guilty of treason I know nothing.... But concerning Colonel Burr's expressions of treasonable intentions, I know much."

Notwithstanding Marshall's intimation that Eaton must confine his testimony to Burr, "the hero of Derne" was not to be denied his self-vindication; not even the Chief Justice should check his recital of his patriotism, his glories, his wrongs. Burr had good reasons for supposing him "disaffected toward the Government"; he then related at length his services in Africa, the lack of appreciation of his ability and heroism, the preferment of unworthy men to the neglect of himself. Finally, Eaton, who "strutted more in buskin than usual," to the amusement of "the whole court,"[1200] delivered his testimony, and once more related what he had said in his deposition. Since Marshall had "decided it to be irrelevant," Eaton omitted the details about Burr's plans to murder Jefferson, turn Congress out of the Capitol, seize the Navy, and make himself ruler of America at one bold and bloody stroke.[1201]

Commodore Truxtun then gave the simple and direct account, already related, of Burr's conversation with him;[1202] Peter Taylor and Jacob Allbright once more told their strange tales; and the three Morgans again narrated the incidents of Burr's incredible acts and statements while visiting the elder Morgan at Morganza.[1203]

William Love, an Englishman, formerly Blennerhassett's servant--a dull, ignorant, and timorous creature--testified to the gathering of "_about betwixt_ twenty and twenty-five" men at his employer's island, some of whom went "out a gunning." He saw no other arms except those belonging to his master, nor did he "see any guns presented," as Allbright had described. Blennerhassett told him that if he would go with him to the Washita, he should have "a piece of land." Love "understood the object of the expedition was to settle Washita lands."[1204]

Dudley Woodbridge, once a partner of Blennerhassett, told of Burr's purchase from his firm of a hundred barrels of pork and fifteen boats, paid by a draft on Ogden of New York; of Blennerhassett's short conversation with Woodbridge about the enterprise, from which he inferred that "the object was Mexico"; of his settlement with Blennerhassett of their partnership accounts; of Blennerhassett's financial resources; and of the characteristics of the man--"very nearsighted," ignorant of military affairs, a literary person, a chemist and musician, with the reputation of having "every kind of sense but common sense."

The witness related his observation of the seizure at Marietta of Burr's few boats and provisions by the Ohio militia, and the sale of them by the Government; of the assemblage of the twenty or thirty men on Blennerhassett's island; of their quiet, orderly conduct; of Comfort Tyler's declaration "that he would not resist the constituted authorities, but that he would not be stopped by a mob"; of Mrs. Blennerhassett's taking part of her husband's library with her when she followed him, after the flight of the terrified little band from the island; and of the sale of the remainder of the cultivated visionary's books.[1205]

Simeon Poole, who had been sent by Governor Tiffin of Ohio to arrest Blennerhassett, said that he was not on the island, but from dusk until ten o'clock watched from a concealed place on the Ohio shore. He saw a few men walking about, who during the night kindled a fire, by the light of which it seemed to Poole that some of them were "armed." He could not be sure from where he watched, but they "looked like sentinels." However, Poole "could not say whether the persons ... were not merely loitering around the fire." There were some boats, he said, both big and little. Also, when anybody wanted to cross from the Ohio side, the acute Poole thought that "a watchword" was given. The night was cold, the rural sleuth admitted, and it was customary to build fires on the river-bank. He observed, however, another suspicious circumstance--"lanterns were passing ... between the house and boats.... Most of the people were without guns," he admitted; but, although he could not see clearly, he "apprehended that some of them had guns."[1206]

Morris P. Belknap, an Ohio business man, testified that he had hailed a boat and been taken to the island on the night when the gathering and flight took place.[1207] He saw perhaps twenty men in the house; "two or three ... near the door, had rifles, and appeared to be cleaning them. These were all the arms I saw." He also observed two or three boats.[1208]

Edmund P. Dana testified that, with two other young men, he had gone in a skiff to the island on that war-levying night.[1209] In the hall he saw about "fifteen or sixteen" men--"one of them was running some bullets." Dana was shown to another room where he met "colonel Tyler, Blennerhassett, Mr. Smith of New-York ... and three or four other gentlemen." He had met Tyler the day before, and was now "introduced to Mr. Smith and Doctor M'Castle[1210] who had his lady ... there." The men in the hall "did not appear to be alarmed" when Dana and his companions came in. Dana "never saw colonel Burr on the island."[1211]

The Government's counsel admitted that Burr was in Kentucky at that time.[1212]

Such was the testimony, and the whole of it, adduced to support the charge that Burr had, at Blennerhassett's island, on December 13, 1806, levied war against the United States. Such was the entire proof of that overt act as laid in the indictment when Marshall was called upon to make that momentous decision upon which the fate of Aaron Burr depended.

The defense moved that, since no overt act was proved as charged, collateral testimony as to what had been said and done elsewhere should not be received. Wickham opened the argument in an address worthy of that historic occasion. For nearly two days this superb lawyer spoke. Burr's counsel would, he said, have preferred to go on, for they could "adduce ... conclusive testimony" as to Burr's innocence. But only seven witnesses out of "about one hundred and forty" summoned by the Government had been examined, and it was admitted that these seven had given all the testimony in existence to prove the overt act.

If that overt act had not been established and yet the more than one hundred and thirty remaining witnesses were to be examined, it was manifest that "weeks, perhaps months," would elapse before the Government completed its case. It was the unhealthy season, and it was most probable that one or more jurors would become ill. If so, said Wickham, "the cause must lie over and our client, innocent, may be subjected to a prolongation of that confinement which is in itself ... punishment." Yet, after all this suffering, expense, and delay, the result must be the same as if the evidence were arrested now, since there was no testimony to the overt act other than that already given.

Did that testimony, then, prove the overt act of levying war on the United States? Those who wrote the Constitution "well knew the dreadful punishments inflicted and the grievous oppressions produced by [the doctrine of] constructive treasons in other countries." For this reason, truly declared Wickham, the American Constitution explicitly defined that crime and prescribed the only way it could be proved. This could not be modified by the common law, since the United States, as a Nation, had not adopted it; and the purpose of the Constitution was to destroy, as far as America was concerned, the British theory of treason. The Constitution "explains itself," said Wickham; under it treason is a newly created offense against a newly created government. Even the Government's counsel "will not contend that the words [in the Constitution concerning treason] used in their natural sense," can embrace the case of a person who never committed an act of hostility against the United States and was not even present when one was committed;[1213] otherwise what horrible cruelties any Administration could inflict on any American citizen.

The Supreme Court, in the case of Bollmann and Swartwout, had, indeed, pronounced a "_dictum_" to the contrary, said Wickham, but that had been in a mere case of commitment; the present point did not then come before the court; it was not argued by counsel. So Marshall's objectionable language in that case was not authority.[1214]

It was only by the doctrine of constructive treason that Burr could be said to be at Blennerhassett's island at the time charged--the doctrine that "in treason all are principals," and that, by "construction of law," he was present, although in reality he was hundreds of miles away. But this was the very doctrine which the Constitution prohibited from ever being applied in America.

If Burr "conspired to levy war against the United States, and ... the war was carried on by others in his absence, his offense can only be punished by _a special indictment charging the facts as they existed_." The prosecution "should at once withdraw their indictment as it does not contain a specification that can be supported by the evidence."[1215]

Edmund Randolph followed Wickham, but added nothing to his rich and solid argument. Addressing Marshall personally, Randolph exclaimed: "Amidst all the difficulties of the trial, I congratulate Your Honour on having the opportunity of fixing the law, relative to this peculiar crime, on grounds which will not deceive, and with such regard for human rights, that we shall bless the day on which the sentence was given, to prevent the fate of Stafford."[1216]

When Randolph closed, on Friday, August 21, Hay asked Marshall to postpone further discussion until Monday, that counsel for the Government might prepare their arguments.[1217] Burr's attorneys stoutly objected, but Marshall wisely granted Hay's request.[1218] "Did you not do an unprecedented thing," a friend asked Marshall, "in suspending a criminal prosecution and granting two days, in the midst of the argument on a point then under discussion, for counsel to get ready to speak upon it?" "Yes," replied the Chief Justice, "I did and I knew it. But if I had not done so I should have been reproached with not being _disposed_ to give the prosecutors an opportunity to answer."[1219]

Saturday and Sunday were more than time enough to light the fires of MacRae's Scotch wrath. His anger dominated him to such an extent that he became almost incoherent.[1220] Burr not a principal! "Let all who are in any manner concerned in treason be principals," and treason will be suppressed.[1221] MacRae, speaking the language of Jeffreys, had, in his rage, forgotten that he had immigrated to America.

On Tuesday, August 25, although the court opened at nine o'clock,[1222] the heat was so oppressive that nothing but the public interest--now reaching the point of hysteria--could have kept the densely packed audience in the stifling hall.[1223] But the spectators soon forgot their discomfort. The youthful, handsome William Wirt enraptured them with an eloquence which has lived for a century. It is impossible to give a faithful condensation of this charming and powerful address, the mingled courtesy and boldness of it, the apt phrase, the effective imagery, the firm logic, the wealth of learning. Only examples can be presented; and these do scant justice to the young lawyer's speech.

"When we speak of treason, we must call it treason.... Why then are gentlemen so sensitive ... as if instead of a hall of justice, we were in a drawing-room with colonel Burr, and were barbarously violating towards him every principle of decorum and humanity?[1224] This motion [to arrest the testimony] is a bold and original stroke in the noble science of defence," made to prevent the hearing of the evidence. But he knew that Marshall would not "sacrifice public justice, committed to [his] charge, by aiding this stratagem to elude the sentence of the law."[1225]

Why had Wickham said so little of American and so much of British precedents, vanishing "like a spirit from American ground and ... resurging by a kind of intellectual magic in the middle of the 16th century, complaining most dolefully of my lord Coke's bowels." It was to get as far as possible away from Marshall's decision in the case of Bollmann and Swartwout. If Marshall's opinion had been favorable, Wickham "would not have ... deserted a rock so broad and solid, to walk upon the waves of the Atlantic." Wirt made the most of Marshall's careless language.[1226]

The youthful advocate was impressing Marshall as well as jury and auditors. "Do you mean to say," asked the Chief Justice, "that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on Blennerhassett's island?" In reply Wirt condensed the theory of the prosecution: "I mean to say, that the _count_ is _general_ in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the constitutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances."[1227]

Burr's presence at the island necessary! If so, a man might devise and set in motion "the whole mechanism" of treason, "go a hundred miles" away, let it be operated by his agents, "and he is innocent, ... while those whom he has deluded are to suffer the death of traitors." How infamous! Burr only the accessory and Blennerhassett the principal! "Will any man believe that Burr who is a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plot into operation, should sink down into an accessory and Blennerhassett be elevated into a principal!"

Here Wirt delivered that passage which for nearly a hundred years was to be printed in American schoolbooks, declaimed by American youth, and to become second only to Jefferson's Proclamation, Messages, and letters, in fixing, perhaps irremovably, public opinion as to Aaron Burr and Harman Blennerhassett.[1228] But his speech was not all rhetoric. Indeed, no advocate on either side, except John Wickham and Luther Martin, approached him in analyses of authorities and closeness of reasoning.[1229]

"I cannot promise you, sir, a speech manufactured out of tropes and figures," remarked Botts in beginning his reply. No man better could have been found to break the force of the address of his young brother of the bar. Wirt had defaced his otherwise well-nigh perfect address by the occasional use of extravagant rhetoric, some of which, it appears, was not reported. Botts availed himself of one such display to make Wirt's argument seem absurd and trivial: "Instead of the introduction of a sleeping Venus with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the prosecution by leading our imaginations to the fascinating richness ... of heaving bosom and luscious waist, I am compelled to plod heavily and meekly through the dull doctrines of Hale and Foster." Botts continued, with daring but brilliant satire, to ridicule Wirt's unhappy rhetoric.[1230] Soon spectators, witnesses, jury, were in laughter. The older lawyers were vastly amused. Even Marshall openly enjoyed the humor.

His purpose thus accomplished, Botts now addressed himself to the evidence, to analyze which he had been assigned. And a perfect job he made of it. He spoke with impetuous rapidity.[1231] He reviewed the events at Blennerhassett's island: "There _was war_, when there was confessedly no war; and it happened although it was prevented!" As to arms: "No arms were necessary ... they might make war with their fingers." Yes, yes, "a most bloody war indeed--and ten or twelve boats." Referring to the flight from Blennerhassett's island, the sarcastic lawyer observed: "If I run away and hide to avoid a beating I am guilty and may be convicted of assault and battery!" What "simpletons" the people of Kentucky and Mississippi had been! "They hunted but could not find the war," although there it was, right among them![1232]

What was the moving force back of the prosecution? It was, charged Botts, the rescue of the prestige of Jefferson's Administration. "It has not only been said here but published in all the newspapers throughout the United States, that if Aaron Burr should be acquitted it will be the severest satire on the government; and that the people are called upon to support the government by the conviction of colonel Burr; ... even jurymen have been taught by the common example to insult him."

No lie was too contemptible to be published about him. For instance, "when the grand jury returned a true bill, he was firm, serene, unmoved, composed--no change of countenance.... Yet the next day they announced in the newspapers," declared Botts, "that he was in a state of indescribable consternation and dismay." Worse still, "every man who dares to look at the accused with a smile or present him the hand of friendship" is "denounced as a traitor."[1233]

Black but faithful was the picture the fearless lawyer drew of the Government's conduct.[1234] He dwelt on the devices resorted to for inflaming the people against Burr, and after they had been aroused, the demand that public sentiment be heeded and the accused convicted. Was that the method of justice! If so, where was the boasted beneficence of democracies? Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral Byng. "Jefferson was run down in 1780[1235] by the voice of the people." If the law of constructive treason were to be adopted in America and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn.[1236]

Hay, who had been ill for several days[1237] and was badly worn, spoke heavily for the greater part of two days.[1238] His address, though dull, was creditable; but he added nothing in thought or authorities to Wirt's great speech. His principal point, which he repeated interminably, was that the jury must decide both law and fact. In making this contention he declared that Marshall was now asked by Burr's counsel to do the very thing for which Chase had been impeached.[1239] Time and again the District Attorney insinuated that impeachment would be Marshall's fate if he did not permit the jury to hear all the testimony.[1240]

Charles Lee, Attorney-General under President Adams, and an intimate friend of Marshall,[1241] had joined Burr's legal forces some time before. In opening his otherwise dry argument, Lee called Marshall's attention to Hay's threat of impeachment. The exhausted District Attorney finally denied that he meant such a thing, and Marshall mildly observed: "I did not consider you as making any personal allusion, but as merely referring to the law."[1242] Thus, with his kindly tactfulness, Marshall put the incident aside.

On August 28, Luther Martin closed the debate. He had been drinking even more than usual throughout the proceedings;[1243] but never was he in more perfect command of all his wonderful powers. No outline of his address will be attempted; but a few quotations may be illustrative.

It was the admitted legal right and "indispensable duty" of Burr's counsel, began Martin, to make the motion to arrest the testimony; yet for doing so "we have been denounced throughout the United States as attempting to suppress the truth." Our act "has been held up to the public and to this jury as conclusive proof of our guilt." Such, declared the great lawyer, were the methods used to convict Burr.[1244] He had been in favor, he avowed, of waiving "obvious and undeniable rights," and of going on with the trial because he was convinced that all the evidence would not only clear "his friend," but remove the groundless prejudices which had so wickedly been excited against Burr. But he had yielded to the judgment of his associates that the plan adopted was more conformable to law.

"I shall ever feel the sincerest gratitude to heaven, that my life has been preserved to this time, and that I am enabled to appear ... in his defense." And if his fellow counsel and himself should be "successful in rescuing a gentleman, for whom I with pleasure avow my friendship and esteem, from the fangs of his persecutors ... what dear delight will my heart enjoy!"[1245] Martin thanked Heaven, too, for the boon of being permitted to oppose the "destructive" doctrine of treason advanced by the Government. For hours he analyzed the British decisions which he "thanked God ... are not binding authority in this country." He described the origin and growth of the doctrine of constructive treason and defined it with clearness and precision.[1246] It was admitted that Burr was not actually present at the time and place at which the indictment charged him with having committed the crime; but, according to the Government, he was "constructively" present.

With perfect fearlessness Martin attacked Marshall's objectionable language in the Bollmann and Swartwout opinion from the Supreme Bench: "As a binding judicial opinion," he accurately declared, "it ought to have no more weight than the ballad of Chevy Chase."[1247] Deftly he impressed upon Marshall, Hay's threat of impeachment if the Chief Justice should presume to decide in Burr's favor.[1248] Lamenting the popular hostility toward Burr, Martin defied it: "I have with pain heard it said[1249] that such are the public prejudice against colonel Burr, that a jury, even should they be satisfied of his innocence, must have considerable firmness of mind to pronounce him _not guilty_. I have not heard it without horror.

"God of Heaven! have we already under our form of government (which we have so often been told is best calculated of all governments to secure all our rights) arrived at a period when a trial in a court of justice, where life is at stake, shall be but ... a mere idle ... ceremony to transfer innocence from the gaol to the gibbet, to gratify popular indignation excited by bloodthirsty enemies!"

Martin closed by a personal appeal to Marshall: "But if it require in such a situation firmness in a jury, so does it equally require fortitude in judges to perform their duty.... If they do not and the prisoner fall a victim, they are guilty of murder in _foro coeli_ whatever their guilt may be in _foro legis_.... May that God who now looks down upon us, and who has in his infinite wisdom called you into existence and placed you in that seat to dispense justice to your fellow citizens, to preserve and protect innocence against persecution--may that God so illuminate your understandings that you may _know_ what is right; and may he nerve your souls with firmness and fortitude to _act_ according to that knowledge."[1250]

The last word of this notable debate had been spoken.[1251] The fate of Aaron Burr and of American liberty, as affected by the law of treason, now rested in the hands of John Marshall.

On Monday morning, August 31, the Chief Justice read his opinion. All Richmond and the multitude of strangers within her gates knew that the proceedings, which for four months had enchained the attention of all America, had now reached their climax. Burr's friends were fearful, and hoped that the laudanum calumny[1252] would "strengthen" Marshall to do his duty.[1253] For the moment the passions of the throng were in abeyance while the breathless spectators listened to Marshall's calm voice as it pronounced the fateful words.

The opinion of the Chief Justice was one of the longest ever rendered by him, and the only one in which an extensive examination of authorities is made. Indeed, a greater number of decisions, treatises, and histories are referred to than in all the rest of Marshall's foremost Constitutional opinions. Like every one of these, the Burr opinion was a state paper of first importance and marked a critical phase in the development of the American Nation.

Marshall stated the points first to be decided: under the Constitution can a man be convicted of treason in levying war who was not present when the war was levied; and, if so, can testimony be received "to charge one man with the overt acts of others until those overt acts as laid in the indictment be proved to the satisfaction of the court"? He made clear the gravity of the Constitutional question: "In every point of view in which it can be contemplated, [it] is of infinite moment to the people of this country and their government."[1254]

What was the meaning of the words, "'levying war'?... Had their first application to treason been made by our constitution they would certainly have admitted of some latitude of construction." Even so it was obvious that the term "levying war" literally meant raising or creating and making war. "It would be affirming boldly to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war."

Suppose the case of "a commissary of purchases" for an army raised to make war, who supplied it with provisions; would he not "levy war" as much as any other officer, although he may never have seen the army? The same was true of "a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him."

But levying war was not for the first time designated as treason by the American Constitution. "It is a technical term," borrowed from an ancient English statute[1255] and used in the Constitution in the sense understood in that country and this at the time our fundamental law was framed.

Not only British decisions, but "those celebrated elementary writers" whose "books are in the hands of every student," and upon which "legal opinions are formed" that are "carried to the bar, the bench and the legislature"--all must be consulted in ascertaining the import of such terms.[1256]

Marshall reviewed Coke, Hale, Foster, and Blackstone, and found them vague upon the question "whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that legal rule [of constructive treason] which attaches the guilt of the principal to an accessory." Nor were the British decisions more satisfactory: "If in adjudged cases this question [has] been ... directly decided, the court has not seen those cases."[1257] To trace the origin of "the doctrine that in treason all are principals" was unimportant. However "spurious," it was the British principle settled for ages.

The American Constitution, however, "comprizes no question respecting principal and accessory"--the traitor must "truly and in fact levy war." He must "perform a part in the prosecution of the war."[1258]

Marshall then gingerly takes up the challenge of his opinion in the case of Bollmann and Swartwout. Since it had been upon the understanding by the grand jury of his language in that opinion that Burr had been indicted for treason, and because the Government relied on it for conviction so far as the prosecution depended on the law, the Chief Justice took pains to make clear the disputed passages.

"Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessories to treason.[1259] But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. To complete the definition _both_ circumstances must occur. They must 'perform a part' which will furnish the overt act; and they must be 'leagued in the conspiracy.'"

Did the things proved to have happened on Blennerhassett's island amount to the overt act of levying war? He had heard, said Marshall, that his opinion in Bollmann and Swartwout was construed as meaning that "any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in a condition to use violence or not in that condition, is a levying of war." That view of his former opinion had not, indeed, "been expressly advanced at the bar"; but Marshall understood, he said, that "it was adopted elsewhere."[1260]

Relying exclusively on reason, all would agree, he continued, "that war could not be levied without the employment and exhibition of force.... Intention to go to war may be proved by words," but the actual going to war must "be proved by open deed."[1261]

This natural and reasonable understanding of the term was supported by the authorities. Marshall then made specific reference to the opinions of a large number of British writers and judges, and of all American judges who had passed upon the question. In none of these, he asserted, had "the words 'levying war' ... received a technical different from their natural meaning"[1262]--that is, "the employment and exhibition of force."

Had he overruled all these opinions in the Bollmann-Swartwout case? Had he, in addition, reversed the natural interpretation of the Constitution which reason dictated? Surely not! Yet this was what he was now charged with having done.