Chapter IX: What Is Treason? (2)

But, said Marshall, "an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms." A mere implication was not enough. Yet this was all there was to justify the erroneous construction of his opinion in the case of Bollmann and Swartwout--"the omission of the court to state that the assemblage which constitutes the fact of levying war ought to be in force."[1263]

Marshall then went into an extended and minute analysis of his misunderstood opinion, and painfully labored to show that he then intended to say, as he now did say: that the act of levying war required "an assemblage in force," and not merely "a secret furtive assemblage without the appearance of force." The gathering "must be such as to prove that [war] is its object." If it was not "a military assemblage in a condition to make war, it was not a levying of war."[1264]

The indictment charged Burr with having levied war at a specific place and stated the exact manner in which the act had been done; this was necessary; otherwise the accused could not make adequate defense. So the indictment "must be proved as laid"; otherwise "the charge of an overt act would be a mischief instead of an advantage to the accused," and would lead him from the true cause and nature of the accusation instead of informing him respecting it.[1265]

The Government insisted that, although Burr "had never been with the party ... on Blennerhassett's island, and was, at the time, at a great distance and in a different state,... he was yet legally present, and therefore may properly be charged in the indictment as being present in fact." Thus, the question arose "whether in this case the doctrine of constructive presence can apply." In answering it, John Marshall ended the contention that so cruel a dogma can ever be applied in America. This achievement was one of his noblest services to the American people.[1266]

Again an imposing array of precedents was examined. "The man, who incites, aids, or procures a treasonable act," is not, merely on that account, "legally present when that act is committed."[1267] Of course, other facts might require that a man should be considered to be present although really absent; for example, if he were on the way there for the purpose of taking part in the specific act charged, or if he were stationed near in order to coöperate with those who actually did the deed, he would be of them and associated with them in the perpetration of that particular act.[1268] But otherwise he could not be said to be present.

If this were not so, then a man levying war in one part of the country might be construed to be present at and taking part in hostilities at the most distant point of the Republic--a participator in "every overt act performed anywhere"; and he would be liable to trial and conviction "in any state on the continent where any overt act has been committed" by anybody. "He may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts."[1269]

If Burr were guilty of treason in connection with the assemblage on Blennerhassett's island, it was only because Burr procured the men to meet for the purpose of levying war against the United States. But the fact that he did procure the treasonable assemblage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence--since the procuring of the assemblage takes the place of presence at it. "If in one case," declared Marshall, "the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses."[1270]

Neither presence nor procurement could, therefore, be proved by collateral testimony: "No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law." And "if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured, or inferred, can satisfy the constitution and the law.

"The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses," as required by the Constitution. "Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses."[1271]

To the objection that this could "scarcely ever" be done, since "the advising or procurement of treason is a secret transaction," the answer was, said Marshall, "that the difficulty of proving a fact will not justify conviction without proof." And most "certainly it will not justify conviction without [one] direct and positive witness in a case where the constitution requires two." The true inference from "this circumstance" was "that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason ... is not treason in itself."[1272]

The testimony which the Government now proposed to offer was to "prove--what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blennerhassett's island? No!" But, instead, "evidence [of] subsequent transactions at a different place and in a different state." But such "testimony was not relevant." If it could be introduced at all, it would be "only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury."[1273]

Before closing, Marshall answered the threats of Hay and Wirt that, if he decided in favor of Burr, he would be impeached: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true.... No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[1274]

Let the jury apply the law as announced to the facts as proved and "find a verdict of guilty or not guilty as their own consciences shall direct."

The next morning the petit jury retired, but quickly returned. Marshall's brother-in-law, Colonel Edward Carrington, foreman, rose and informed the court that the jury had agreed upon a verdict.

"Let it be read," gravely ordered Marshall.

And Colonel Carrington read the words of that peculiar verdict:

"We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty."[1275]

Instantly Burr, Martin, Wickham, and Botts were on their feet protesting. This was no verdict, according to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure.

Discussion followed. Hay insisted that the verdict be received and recorded as returned. "It was like the whole play," exclaimed Martin, "Much Ado About Nothing." Of course the verdict must be corrected. Did the jury mean to "censure ... the court for suppressing irrelevant testimony?" Unthinkable! And if not, they ought to answer simply "Guilty" or "Not Guilty."[1276]

Colonel Carrington informed the court that, among themselves, the jury had said that "they would alter the verdict if it was informal--it was in fact a verdict of acquittal." Richard E. Parker, also of the jury, said he never would agree to change the form--they knew what they were about when they adopted it. Parker was "a violent Jeffersonian partisan," and Burr's friends had reproved him for accepting such a man as a member of the jury.[1277]

Soothingly Marshall directed that the verdict "stand on the bill" as the jury wished it; but, since it was "in effect a verdict of acquittal," let "an entry be made on the record of 'Not Guilty.'"

The Chief Justice "politely thanked the jury for their patient attention during the whole course of this long trial, and then discharged them."[1278]

A week before Marshall delivered his opinion, an attempt was made to induce Blennerhassett to betray Burr. On August 23 William Duane, editor of the _Aurora_, and an intimate friend, supporter, and agent of Jefferson, approached Blennerhassett for that purpose, and offered to go to Washington, "now or at any time hereafter," in his behalf. Duane assured him that the Administration would refuse him (Duane) "nothing he should ask." But Blennerhassett repulsed Duane's advances.[1279]

Hay, angry and discomfited, entered a _nolle prosequi_ to the indictments of Dayton, Blennerhassett, and the others for the same crime; but, in obedience to Jefferson's orders, demanded that all of them, Burr included, be still held under the charge of treason, that they might be sent for trial to some place where an overt act might have been committed.[1280] Marshall, after enduring another long argument, gently put the application aside because all the conspirators were now to be tried upon the charge of misdemeanor under the second indictment.[1281]

Marshall's motives were clearer than ever to Jefferson. "The event has been what was evidently intended from the beginning of the trial; ... not only to clear Burr, but to prevent the evidence from ever going before the world. But this latter case must not take place." Hay must see to it that "not a single witness be paid or permitted to depart until his testimony has been committed to writing.... These whole proceedings will be laid before Congress, that they may ... provide the proper remedy."[1282]

Jefferson ordered Hay to press for trial on the indictment for misdemeanor, not with the expectation of convicting Burr, but in the hope that some sort of testimony would be brought out that would convict Marshall in the court of public opinion, and perhaps serve as a pretext for impeaching him. Thus, in the second trial of which we are now to be spectators, "the chief-justice was occupied in hearing testimony intended for use not against Burr, but against himself."[1283] It was for this reason that Marshall, when the trial for misdemeanor began, threw open wide the doors to testimony.[1284]

Burr's counsel, made unwise by victory, insisted that he should not be required to give bail, and Marshall, although the point had been decided and was not open to dispute, permitted and actually encouraged exasperatingly extended argument upon it.[1285] Burr had submitted to give bail at the beginning, said Botts, not because it was "demandable of right," but because he and his counsel "had reason to apprehend danger ... from the violence and turbulence of the mob."[1286]

Marshall was careful to deliver another long and, except for the political effect, wholly unnecessary opinion; nor was it directly on the matter at issue. Counsel floundered through a tangle of questions, Marshall exhibiting apparent indecision by manifesting great concern, even on the simplest points.

Finally, he ordered that Burr "be acquitted and discharged" as to the indictment for treason, but to be held in five thousand dollars bail under the indictment for misdemeanor. Jonathan Dayton and William Langbourne offered themselves and were accepted as sureties; and on September 3, after nearly nine weeks of imprisonment, Burr walked out of court unhindered, no longer to be under lock and bar and armed guard.[1287]

Merry were the scenes in the houses of Richmond society that night; hilarious the rejoicing about the flowing board of Luther Martin; and, confused and afflicted with a blurred anger, the patriotic multitude talked resentfully of Marshall's decision. On one side it was said that justice had prevailed and persecution had been defeated; on the other, that justice had been mocked and treason protected. Hay, Wirt, and MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and Burr, jubilant and aggressive.

Many conflicting stories sprang up concerning Marshall--his majestic bearing on the bench, his servility, his courage, his timidity. One of these has survived: "Why did you not tell Judge Marshall that the people of America demanded a conviction?" a disgusted Republican asked of Wirt. "Tell _him_ that!" exclaimed Wirt. "I would as soon have gone to Herschel, and told him that the people of America insisted that the moon had horns as a reason why he should draw her with them."[1288]

The captain of the "conspiracy" had never lost heart, and, save when angered by Marshall's seeming inconsistency and indecision, had continued to be cheery and buoyant. Steadily he had assured his friends that, when acquitted, he would again take up and put through his plans. This thought now dominated him. Blennerhassett, upon visiting his chief, found Burr "as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption," with better prospects for success than ever.[1289]

Quick to press his advantage, Burr the next morning demanded the production of the letters called for in the subpoena _duces tecum_ to Jefferson. These had not been forthcoming, and Burr asserted the President to be in contempt of court and subject to punishment therefor.[1290] Once more altercation flared up in debate. Hay said he had one of the letters; that it had not "the most distant bearing on the subject," and that he might prefer "to be put in prison" rather than disclose its contents.[1291]

Jefferson had become very nervous about Marshall's order and plainly feared that the Chief Justice might attempt to enforce it. The thought frightened him; he had no stomach for a direct encounter. At last he wished to compose the differences between himself and the obstinate and fearless, if gentle-mannered, Marshall. So the President directed his district attorney to tell the United States Marshal to obey no order of the court and to intimate to the Chief Justice the wisdom of deferring the vexed question until the next session of Congress.

He wrote, said Jefferson, "in a spirit of conciliation and with the desire to avoid conflicts of authority between the high branches of the government which would discredit equally at home and abroad." Naturally Burr and his counsel would like "to convert this trial into a contest between the judiciary & Exve Authorities"; but he had not "expected ... that the Ch. Justice would lend himself to it." Surely Marshall's "prudence and good sense" would not "permit him to press it."

But if Marshall was determined to attack Jefferson and "issue any process which [would] involve any act of force to be committed on the persons of the Exve or heads of departs," Hay was to give Jefferson "instant notice, and by express if you find that can be done quicker than by post; and ... moreover ... advise the marshal on his conduct as he will be critically placed between us."

The "safest way" for that officer to pursue "will be to take no part in the exercise of any act of force ordered in this case. The powers given the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-eminence, & every individual also from judiciary vengeance, and the marshal may be assured of it's effective exercise to cover him."

Such was Jefferson's threat to use force against the execution of the process of the National courts. But the President went on: "I hope however that the discretion of the C. J. will suffer this question to lie over for the present, and at the ensuing session of the legislature [Congress] he may have means provided for giving individuals the benefit of the testimony of the Exve functionaries in proper cases, without breaking up the government. _Will not the associate judge_ [Cyrus Griffin] _assume to divide his court and procure a truce at least in so critical a conjuncture?_"[1292]

When Hay acknowledged that he had one of the letters from Wilkinson to Jefferson, a subpoena _duces tecum_ was served on the District Attorney, notwithstanding his gallant declaration that he would not produce it even if he were sent to jail for not doing so. Hay then returned a copy of such parts of the letter as he thought "material for the purposes of justice," declining to give those passages which Jefferson deemed "confidential."[1293] Burr insisted on the production of the entire letter.

Botts moved that the trial be postponed "till the letter shall be produced." Another of that unending series of arguments followed,[1294] and still another of Marshall's cautious but convincing opinions came forth. Jefferson, he said, had not forbidden the production of the letter--the President, in response to the subpoena upon him, had sent the document to Hay, leaving to the discretion of the District Attorney the question as to what should be done with it. Of course if, for public reasons, Jefferson had declined to produce the letter, his "motives may [have been] such as to restrain the court" from compelling him to do so.[1295] At least Burr might see the letter now; consideration of the other features of the controversy would be deferred.[1296]

The distracted Hay, his sour temper made more acid by a "greatly aggravated influenza," wrote Jefferson of the Government's predicament; Marshall's remarks from the bench had not been explicit, he said, and "it is impossible to foresee what his opinion will be unless I could foresee what will be the state of his nerves. Wirt, who has hitherto advocated the _integrity_ of the Chief Justice, now abandons him."

The District Attorney dolefully tells the President that he is "very decidedly of the opinion, that these prosecutions will terminate in nothing." He thinks the Government will be defeated on the trials for misdemeanor, and believes the indictments for that offense should be dismissed and motion made for the commitment of Burr, Blennerhassett, and Smith to be transferred to some spot where their crime might be proved. "Instruct me," he begs Jefferson, "specially on this point."[1297]

Jefferson, now on his vacation at Monticello, directed Hay to press at Richmond the trial of Burr for misdemeanor. "If defeated it will heap coals of fire on the head of the judge; if convicted, it will give them time to see whether a prosecution for treason can be instituted against him in any, and what court." A second subpoena _duces tecum_ seems to have been issued against Jefferson,[1298] and he defiantly refused to "sanction a proceeding so preposterous," by "any notice" of it.[1299] And there this heated and dangerous controversy appears to have ended.[1300]

Finally, the hearing of evidence began on the indictment against Burr for misdemeanor--for having conducted an attack upon Mexico. For seven weeks the struggle went on. The Government's attorneys showed the effects of the long and losing fight. Many witnesses were sent home unexamined or merely leaving their affidavits. Hay acted like the sick man he really was. The dour MacRae appeared "utterly chop-fallen; an object of disgust to his friends, and pity to his enemies."[1301] Only Wirt, with his fine gallantry of spirit, bore himself manfully. Motions, arguments, opinions continued. One of Marshall's rulings on the admissibility of evidence moved Blennerhassett to ecstasies.[1302]

More than fifty witnesses were examined, the heavy preponderance of the evidence clearly showing that Burr's purpose and expectations had been to settle the Washita lands and, in case the United States went to war with Spain, and _only in that event_, to lead a force against the Spaniards. No testimony whatever was given tending to disclose any hostile plans against the United States, or even for an attack upon Mexico without war between America and Spain, except that of Wilkinson, Eaton, Taylor, Allbright, and the Morgans, as already set out. One witness also told of a wild and fanciful talk by the eccentric and imaginative Blennerhassett.[1303]

The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a despicable light,[1304] and Eaton appeared more fantastic than ever; but both these heroes put on looks of lofty defiance. The warrior-diplomat of Algerian fame had now fallen so low in the public esteem that one disgusted Virginian had threatened to kick him out of a room.[1305]

On September 15, 1807, the District Attorney, by attempting to enter a _nolle prosequi_ on the indictment of Burr for misdemeanor, tried to prevent the jury from rendering a verdict.[1306] One member of the jury wanted that body to return a special finding; but his associates would have none of it, and in half an hour they reported a straight verdict of "Not Guilty."[1307]

Hay dismissed further proceedings against Smith and Blennerhassett on the indictments for misdemeanor, and then moved to commit Burr and his associates upon the charge of treason by "levying war" within the jurisdiction of the United States Court for the District of Ohio.[1308] On this motion, Marshall, as an examining magistrate, gave the Government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. Blennerhassett thought that Marshall was conciliating "public prejudice."[1309] Burr told his counsel that the Chief Justice "did not for two days together understand either the questions or himself ... and should in future be put right by strong language." So angered was he with Marshall's "wavering," that at times "Burr ... would not trust himself to rise up to sum up and condense the forces displayed by his counsel, into compact columns, after the engagement, toward the close of the day, as is generally his practice."[1310]

Just at this time appeared a pamphlet[1311] by Marshall's brother-in-law, Joseph Hamilton Daveiss. Jefferson had removed him from the office of United States Attorney for the District of Kentucky because of Daveiss's failure in his attacks on Burr, and the revengeful Federalist lawyer and politician retaliated by abusing the President, Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's sudden admission of evidence, some saw a direct connection; the previous knowledge Marshall must have had of his brother-in-law's intended assault, inferred because of "the well-known spirit of clanship and co-operation with which the Marshalls and all their connections are so uniformly animated," showed, it was alleged, that the Chief Justice was working with his kinsman to bring down in indiscriminate ruin, Jefferson, Burr, and Wilkinson together.

The last volume of Marshall's "Life of Washington," that "five volumed libel," as Jefferson branded the biography, had recently appeared. Blennerhassett, who, in expressing his own opinions, usually reflected those of his associates, had "no doubt" that the President's perusal of Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a more deadly hatred of the Marshall faction than he has ever conceived of all the Burrites he ever heard of."[1313]

The President's partisans in Virginia were prompt to stoke the furnace of his wrath. William Thompson of Petersburgh[1314] wrote a brief "view" of the Burr trial and sent "the first 72. pages" to Jefferson, who read them "with great satisfaction" and clamored for more.[1315] Marshall's conduct should indeed fill everybody "with alarm," wrote Jefferson in reply. "We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it. Our case too is the more desperate as to attempt to make the law plainer by amendment is only throwing out new materials for sophistry."[1316]

The Federalists in Washington, fast dwindling in power and number, experienced as much relief as their chronic melancholia permitted them to enjoy. "Had the late vice president and two senators been convicted and executed for treason, it would in the opinion of Europe, have reflected disgrace upon our country," notes Senator Plumer in his diary.[1317]

Hay, on the other hand, thought that "a correct and perspicuous legal history of this trial would be a valuable document in the hands of intelligent legislators," but that "among others it might perhaps do mischief. It might produce a sentiment toward all judicial system and law itself, the operation of which might perhaps be fatal to the tranquillity and good order of Society."[1318]

On October 20, Marshall delivered his last opinion in the Burr trials. It was upon the Government's motion to commit Burr and his associates for treason and misdemeanor committed on the dismal island at the mouth of the Cumberland, where Burr had first greeted his little band of settlers and potential adventurers. He must grant the motion, Marshall said, "unless it was perfectly clear that the act was innocent." If there was any doubt, the accused must be held. The Chief Justice then carefully analyzed all the evidence.[1319] He concluded that Burr's purposes were to settle the Washita lands and to invade Mexico if opportunity offered, perhaps, however, only in the event of war with Spain. But whether this was so ought to be left to the jury; Marshall would "make no comment upon it which might, the one way or the other, influence their judgment."[1320] He therefore would commit Burr and Blennerhassett "for preparing and providing the means for a military expedition" against Spain.

"After all, this is a sort of drawn battle," Burr informed Theodosia. "This opinion was a matter of regret and surprise to the friends of the chief justice and of ridicule to his enemies--all believing that it was a sacrifice of principle to conciliate _Jack Cade_. Mr. Hay immediately said that he should advise the government to _desist from further prosecution_."[1321]

If Marshall disappointed Burr, he infuriated Jefferson. In the closing words of his opinion the Chief Justice flung at the President this challenge: "If those whose province and duty it is to prosecute offenders against the laws of the United States shall be of the opinion that a crime of a deeper dye has been committed, it is at their choice to act in conformity with that opinion"--in short, let Jefferson now do his worst.

Marshall's final opinion and his commitment of Burr, under bail, to be tried in Ohio for possible misdemeanor at the mouth of the Cumberland should a grand jury indict him for that offense, disgusted Burr. Indeed he was so "exasperated" that "he was rude and insulting to the Judge."[1322] Nor did Marshall's friends in Richmond feel differently. They "are as much dissatisfied," records Blennerhassett, "with his opinion yesterday as Government has been with all his former decisions. He is a good man, and an able lawyer, but timid and yielding under the fear of the multitude, led ... by the vindictive spirit of the party in power."[1323]

Burr gave the bond of five thousand dollars required by Marshall, but in Ohio the Government declined to pursue the prosecution.[1324] Burr put the whole matter out of his mind as a closed incident, left Richmond, and started anew upon the execution of his one great plan as though the interruption of it had never happened.

Marshall hurried away to the Blue Ridge. "The day after the commitment of Col^o. Burr for a misdemeanor I galloped to the mountains," he tells Judge Peters. During the trial Peters had sent Marshall a volume of his admiralty decisions; and when he returned from his belated vacation, the Chief Justice acknowledged the courtesy: "I have as yet been able only to peep into the book.... I received it while fatigued and occupied with the most unpleasant case which has ever been brought before a Judge in this or perhaps any other country, which affected to be governed by laws, since the decision of which I have been entirely from home.... I only returned in time to perform my North Carolina Circuit which terminates just soon enough to enable me to be here to open the Court for the antient dominion. Thus you perceive I have sufficient bodily employment to prevent my mind from perplexing itself about the attentions paid me in Baltimore and elsewhere.[1325]

"I wish I could have had as fair an opportunity to let the business go off as a jest here as you seem to have had in Pennsylvania: but it was most deplorably serious & I could not give the subject a different aspect by treating it in any manner which was in my power. I might perhaps have made it less serious to my self by obeying the public will instead of the public law & throwing a little more of the sombre upon others."[1326]

While Marshall was resting in the mountains, Jefferson was writing his reply to the last challenge of the Chief Justice.[1327] In his Message to Congress which he prepared immediately after the Burr trials, he urged the House to impeach Marshall. He felt it to be his duty, he said, to transmit a record of the Burr trial. "_Truth & duty alone extort the observation that wherever the laws were appealed to in aid of the public safety, their operation was on behalf of those only against whom they were invoked._" From the record "you will be enabled to judge whether the defect was in the testimony, or in the laws, or _whether there is not a radical defect_ in the administration of the law? And wherever it shall be found the legislature alone can apply or originate the remedy.

"The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression under pretence of it: and if _the pliability of the law as construed in the case of Fries,[1328] and it's wonderful refractoriness as construed in that of Burr, shew that neither end has been attained, and induce an awful doubt whether we all live under the same law. The right of the jury too to decide law as well as fact seems nugatory without the evidence pertinent to their sense of the law._ If these ends are not attained it becomes worthy of enquiry by what means more effectual they may be secured?"[1329]

On the advice of his Cabinet,[1330] Jefferson struck out from the Message the sentences italicized above. But even with this strong language omitted, Congress was told to impeach Marshall in far more emphatic terms than those by which Jefferson had directed the impeachment of Pickering--in plainer words, indeed, than those privately written to Nicholson ordering the attack upon Chase. Jefferson's assault on Marshall was also inserted in a Message dealing with probable war against Great Britain and setting out the continuance of our unhappy relations with Spain, "to our former grounds of complaint" against which country had "been added a very serious one."[1331]

Had these grave conditions not engaged the instant attention of Congress, had public sentiment--even with part of its fury drawn from Burr to Great Britain--been heeded at the National Capital, there can be little doubt that John Marshall would have been impeached by the House that was now all but unanimously Republican, and would have been convicted by the overwhelmingly Jeffersonian Senate.

Well for Marshall's peace of mind that he had secluded himself in the solitudes of the Blue Ridge, for never was an American judge subjected to abuse so unsparing. The Jeffersonian press, particularly the _Aurora_ and the _Enquirer_, the two leading Republican papers, went to the limits of invective. "Let the judge be impeached," said the _Enquirer_; the Wickham dinner was recalled--why had Marshall attended it? His speech on the Jonathan Robins case[1332]--"the price of his seat on the bench"--was "a lasting monument of his capacity to defend error."

Marshall's "wavering and irresolute spirit" manifested throughout the trial had disgusted everybody. His attempt to make his rulings "palatable to all parties" had "so often wrapt them in obscurity" that it was hard "to understand on which side the court had decided." His conduct had been inspired by "power illicitly obtained." And think of his encouragement to Burr's counsel to indulge in "unbounded ... slander and vilification" of the President! Callender's libel on Adams was insipid compared with Martin's vulgar billingsgate toward Jefferson! But that "awful tribunal"--the people--would try Marshall; before it "evidence will neither be perverted nor suppressed.... The character of the Chief Justice awaits the issue."[1333]

Another attack soon followed. Marshall's disgraceful conduct "has proved that the Judges are too independent of the people." Let them be made removable by the President on the address of Congress. The Chase trial had shown that impeachment could not be relied on to cleanse the bench of a judge no matter how "noxious," "ridiculous," "contemptible," or "immoral" he might be. But "shall an imposter be suffered to preside on the bench of justice?... Are we to be eternally pestered with that most ridiculous and dangerous cant; that the people ... are incompetent to their own government: and that masters must be set over them and that barriers are to be raised up to protect those masters from the vengeance of the people?"[1334]

Next came a series of "Letters to John Marshall," which appeared simultaneously in the _Aurora_ and the _Enquirer_. They were written by William Thompson under the _nom de guerre_ of "Lucius"; he undoubtedly was also the author of the earlier attacks on the Chief Justice in the _Enquirer_. They were widely copied in the Republican press of the country, and were a veracious expression of public sentiment.

"Your country, sir, owes you a debt of gratitude for former favors," which cannot be paid because "the whole stock of national indignation and contempt would be exhausted, before the half of your just claim could be discharged." Marshall had earned "infamy and detestation" by his efforts to erect "tyranny upon the tomb of freedom." His skill "in conducting the manouvres of a political party," his "crafty cunning" as a diplomat, had been perpetuated by the "genius" of John Thompson, whose "literary glory ... will shine when even the splendour of your talents and your crimes shall have faded forever. When your volumes of apology for British insolence and cruelty[1335] shall be buried in oblivion, the 'Letters of Curtius'[1336] will ... 'damn you to everlasting fame.'" Marshall's entire life, according to Lucius, had been that of a sly, bigoted politician who had always worked against the people. He might have become "one of the boasted patriots of Virginia," but now he was "a disgrace to the bench of justice." He was a Jeffreys, a Bromley, a Mansfield.[1337]

Quickly appeared a second letter to Marshall, accusing him of having "prostrated the dignity of the chief justice of the United States." Lucius goes into a lengthy analysis of Marshall's numerous opinions in the Burr trials. A just review of the proceedings, he said, demonstrates that the Chief Justice had "exhibited a culpable partiality towards the accused, and a shameless solicitude ... to implicate the government ... as negligent of their duty"--something that "a less malicious magistrate" never would have dared to display.[1338] A third letter continued the castigation of Marshall and the defense of Jefferson. Closing an extended argument on this joint theme, Lucius addressed Marshall thus: "Common sense, and violated justice, cry aloud against such conduct; and demand against you the enforcement of these laws, which you refuse to administer."[1339]

All these arraignments of Marshall had, as we have seen,[1340] been submitted to Jefferson. They rose in the final letter to a climax of vituperation: "Could I be instrumental in removing you from the elevation which you have dishonored by ... your crimes, I would still trace you ... for screening a criminal and degrading a judge" by the "juggle of a judicial farce." Marshall and Burr were alike "morally guilty," alike "traitors in heart and in fact.... Such a criminal and such a judge, few countries ever produced.... You are forever doomed to blot the fair page of American history, to be held up, as examples of infamy and disgrace, of perverted talents and unpunished criminality, of foes to liberty and traitors to your country."[1341]

Incited by similar attacks in the Republican press of Baltimore,[1342] the more ardent patriots of that place resolved publicly to execute Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the morning of November 3, satirical handbills, announcing this act of public justice, were scattered over the city:

"AWFUL!!!

"The public are hereby notified that four 'choice spirits' are
this afternoon, at 3 o'clock, to be marshaled for execution by
the hangman, on Gallows Hill, in consequence of the sentence
pronounced against them by the unanimous voice of every honest
man in the community.

"The respective crimes for which they suffer are thus stated in
the record:

"First, Chief Justice M. for a repetition of his X.Y.Z. tricks,
which are said to be much aggravated by his _felonins_ [_sic_]
capers in open Court, on the plea of irrelevancy;

"Secondly, His Quid Majesty [Burr], charged with the trifling
fault of wishing to divide the Union, and farm _Baron_
Bastrop's grant;

"Thirdly, B[lennerhassett], the chemist, convicted of
conspiracy to destroy the tone of the public Fiddle;

"Fourthly, and lastly, but not least, _Lawyer_ Brandy-Bottle,
for a false, scandalous, malicious Prophecy, that, before six
months, 'Aaron Burr would divide the Union.'

"N.B. The execution of accomplices is postponed to a future
day."[1343]

Martin demanded of the Mayor the protection of the law. In response, police were sent to his house and to the Evans Hotel where Blennerhassett was staying. Burr and the faithful Swartwout, who had accompanied his friend and leader, were escorted by a guard to the stage office, where they quickly left for Philadelphia.[1344] Martin's law students and other friends armed themselves to resist violence to him.

A policeman named Goldsmith notified Blennerhassett that a great mob was gathering, "had everything prepared for tarring and feathering and would, ... if disappointed or opposed, tear Martin [and Blennerhassett] to pieces." The manager of the hotel begged Blennerhassett to hide in the garret of the hostelry. This the forlorn Irishman did, and beheld from a window in the attic what passed below.

Shouting and huzzaing men poured by, headed by fifers and drummers playing the "Rogue's march." Midway in the riotous throng were drawn two carts containing effigies of Chief Justice Marshall and the other popularly condemned men "habited for execution.... Two troops of cavalry patrolled the streets, not to disperse the mob, but to follow and behold their conduct." At Martin's house the crowd stopped for a moment, hurling threats and insults, jeering at and defying the armed defenders within and "the cavalry without."

Making "as much noise as if they were about to destroy the city," these devotees of justice and liberty proceeded to the place of public execution. There, amid roars of approval, the effigy of John Marshall, Chief Justice of the United States, was hanged by the neck until the executioner pronounced the stuffed figure to be dead. About him dangled from the gibbet the forms of the "traitors"--Aaron Burr and Harman Blennerhassett--and also that of Luther Martin, who had dared to defend them and had thus incurred the malediction of Thomas Jefferson and "the people."[1345]

In the Senate Giles reported a bill to punish as traitors persons who permitted or aided in the perpetration of certain acts, "although not personally present when any such act was done"; and he supported it in an argument of notable ability. He powerfully attacked Marshall, analyzed his opinions in the Burr case, contrasted them with those of other National judges, and pointed out the resulting confusion in the interpretation of the law. All this was spoken, however, with careful regard to the rules of parliamentary discussion.[1346]

Legislation was necessary, said Giles; as matters stood, the decisions of judges on treason were like Congress "enacting our speeches, interspersed with our laws." With what result? No two judges have yet delivered the same opinion upon some of the most essential features of treason. Take for example the British doctrine that, in treason, accessories are principals. Were they in America? "Judge Chase and others say they are. Judge Marshall says he does not know whether they are or not, but his reasoning would go to show that they are not."[1347]

Solely to gratify _vox populi_, the Senate next indulged in a doubtful performance. An attempt was made to expel Senator John Smith of Ohio. With only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special Senate Committee[1348] presented a report concluding with a resolution to expel Smith because of "his participation in the conspiracy of Aaron Burr against the peace, union and liberties of the people of the United States."[1349] This surprising document was the work of John Quincy Adams,[1350] who apparently adopted the ideas and almost the language of Lucius.

Burr's conspiracy, wrote Adams, was so evil and was "established by such a mass of concurring and mutually corroborative testimony" that the "honor" of the Senate and "the deepest interests of this nation" required that nobody connected with it should be a member of Congress. After an unctuous recitation of accepted generalities and a review of the expulsion of Senator Blount, together with an excellent statement of the law of parliamentary bodies in such cases, Adams got down to the business of destroying John Marshall.[1351]

Marshall had "withheld from the jury ... a great part of the testimony which was essential to [Burr's] conviction.... In consequence of this suppression of evidence" the trial jury had not been allowed to find a verdict of guilty against the traitor. Marshall's "decisions, forming the basis of the issue upon the trials of Burr ... were the sole inducements upon which the counsel for the United States abandoned the prosecution against him" (Smith). An American grand jury had charged Senator Smith with being "an accomplice" of these diabolical plans, and the safety which Marshall's decisions in the Burr trial had thrown around Smith and other associates of the traitor "cannot, in the slightest degree, remove the imputation" which the indictment of Smith had brought to his door.

"If," wrote Adams, "the daylight of evidence combining one vast complicated intention, with overt acts innumerable, be not excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest understanding cannot disguise, crimes before which ordinary treason whitens into virtue" and beyond "the ingenuity of a demon."

Adams continued: "Whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt ... that, but for the vigilance and energy of the government, and of faithful citizens under its directions ... in crushing his designs, they would ... have terminated not only in war, but in a war of the most horrible description, ... at once foreign and domestic."

To such lengths can popular demand, however unjust, drive even cold, unemotional, and upright men who are politically ambitious. Adams's Federalist confrères reacted quickly;[1352] and the _New York Evening Post_ sharply criticized him.[1353] When the report came up in the Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut, attacked it and its author with "unusual virulence." Bayard was especially severe.[1354] Thus assailed, Adams was cast into black depression: "It is indeed a fiery ordeal I have to go through. God speed me through it!" he wrote in his diary that night.[1355]

William Branch Giles cast the deciding vote which defeated Adams's resolution--the Senate refusing to expel Smith by a vote of 19 yeas to 10 nays,[1356] just one short of the necessary two thirds. The Virginia Republican Senator attacked the resolution with all his fiery eloquence, and compelled the admiration even of Adams himself.[1357] "I shall vote against the resolution," Giles concluded, "solely from the conviction of the innocence of the accused."[1358]

Herefrom one may judge the temper of the times and the perilous waters through which John Marshall had been compelled to pilot the craft of justice. If that "most deliberative legislative body" in our Government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the Chief Justice in overcrowded Richmond during the trial of Aaron Burr, and the real impending danger for Marshall, after the acquittal of the man whom Jefferson and the majority had branded with the most hideous infamy.

Fortunate, indeed, for the Chief Justice of the United States, and for the stability of American institutions, that the machinery of impeachment was, during these fateful months, locked because the President, Congress, and the Nation were forced to give their attention to the grave foreign situation which could no longer be ignored.

Going about his duties in Washington, or, at home, plodding out to the farm near Richmond, joking or gossiping with friends, and caring for his afflicted wife, Marshall heard the thunders of popular denunciation gradually swallowed up in the louder and ever-increasing reverberations that heralded approaching war with Great Britain. Before the clash of arms arrived, however, his level common sense and intelligent courage were again called upon to deal with another of those perplexing conditions which produced, one by one, opinions from the Supreme Bench that have become a part of the living, growing, yet stable and enduring Constitution of the American Nation.

FOOTNOTES:

[1153] _Blennerhassett Papers_: Safford, 298.

Blennerhassett wrote this comment when the trial was nearly over. He said that two hundred men acted as a bodyguard to Burr on his way to court each day.

[1154] Parton: _Burr_, 481.

[1155] April 1, 1807, "Register," Plumer MSS. Lib. Cong.

[1156] Swartwout was then twenty-four years old.

[1157] Parton: _Jackson_, I, 335.

[1158] Swartwout challenged Wilkinson after the trial was over.

[1159] See brief account of this incident, including Swartwout's open letter to Wilkinson, in _Blennerhassett Papers_: Safford, footnote to 459-60.

[1160] Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," MSS. Lib. Cong.

[1161] Jefferson to Wilkinson, June 21, 1807, Wilkinson: _Memoirs_, II, Appendix XXX. Jefferson's letter also contains the following: "You have, indeed, had a fiery trial at New Orleans, but it was soon apparent that the clamorous were only the criminal, endeavouring to turn the public attention from themselves, and their leader, upon any other object.... Your enemies have filled the public ear with slanders, and your mind with trouble, on that account. The establishment of their guilt, will ... place you on higher ground in the public estimate, and public confidence."

[1162] _Burr Trials_, I, 227-53.

[1163] _Ib._ 257-67. Wilkinson was then giving his testimony before the grand jury.

[1164] _Ib._ 268-72.

[1165] _Ib._ 276-77.

[1166] _Ib._ 277-305.

[1167] See _supra_, 455-56.

[1168] _Burr Trials_, I, 306.

[1169] _Ib._ 308.

[1170] Irving to Miss Fairlie, July 7, 1807, Irving, I, 152.

[1171] _Burr Trials_, I, 312.

[1172] _Ib._ 313-50.

[1173] _Burr Trials_, I, 350-54.

[1174] _Ib._ 354-57.

[1175] See Adams: _U.S._ II, chap. I; Channing: _Jeff. System_, 189-94; Hildreth, III, 402; and see vol. IV, chap. I, of this work.

[1176] Jefferson's Proclamation, July 2, 1807, _Works_: Ford, X, 434.

[1177] Randolph to Nicholson, June 25, 1807, Adams: _John Randolph_, 222.

[1178] Wilkinson to Jefferson, June 29, 1807, "Letters in Relation," MSS. Lib. Cong.

[1179] Jefferson to Congress, _Annals_, 10th Cong. 1st Sess. 9.

[1180] At this time Jefferson wrote curious letters, apparently to explain, by inference, to his friends in France his want of energy in the Chesapeake affair and the vigor he displayed in the prosecution of Burr. "Burr's conspiracy has been one of the most flagitious of which history will ever furnish an example.... Yet altho' there is not a man in the U S who is not satisfied of the depth of his guilt, such are the jealous provisions of our laws in favor of the accused, ... that I question if he can be convicted." (Jefferson to Du Pont de Nemours, July 14, 1807, _Works_: Ford, X, 461; also see same to Lafayette, same date, _ib._ 463.) It will be observed that in these letters Jefferson condemns the laxity of American laws instead of blaming Marshall.

[1181] _Burr Trials_, I, 357-59.

[1182] Irving to Miss Fairlie, July 7, 1807, Irving, I, 153. "The only reason given for immuring him in this abode of thieves, cut-throats, and incendiaries," says Irving, "was that it would save the United States a couple of hundred dollars (the charge of guarding him at his lodgings), and it would insure the security of his person."

[1183] "Burr lives in great style, and sees much company within his gratings, where it is as difficult to get an audience as if he really were an Emperor." (_Blennerhassett Papers_: Safford, 324.) At first, however, his treatment was very severe. (See Irving to Miss Fairlie, July 7, 1807, Irving, I, 153.)

[1184] Burr to his daughter, July 3, 1807, Davis, II, 409.

[1185] Burr to his daughter, July 6, 1807, Davis, II, 410.

[1186] Same to same, July 24, 1807, _ib._ 410.

[1187] At a Fourth of July celebration in Cecil County, Maryland, toasts were proposed wishing for the grand jury "a crown of immortal glory" for "their zeal and patriotism in the cause of liberty"; hoping that Martin would receive "an honorable coat of tar, and a plumage of feathers" as a reward for "his exertions to preserve the Catiline of America"; and praying that Burr's treachery to his country might "exalt him to the scaffold, and hemp be his escort to the republic of dust and ashes." (Parton: _Burr_, 478.)

[1188] See vol. IV, chap. I, of this work. Also _supra_, chap. III.

[1189] Marshall to the Associate Justices of the Supreme Court, June 29, 1807, as quoted by Horace Gray, Associate Justice of the Supreme Court, in Dillon, I, 72.

[1190] Parton: _Burr_, 483.

[1191] _Burr Trials_, I, 369-70.

[1192] _Ib._ 370-85.

[1193] _Ib._ 385-414.

[1194] _Burr Trials_, I, 414-20.

[1195] Hay to Jefferson, Aug. 11, 1807, Jefferson MSS. Lib. Cong.

[1196] _Burr Trials_, I, 433-51.

[1197] Hay had announced that Eaton's testimony would be to the same effect as his deposition.

[1198] _Burr Trials_, I, 452-69.

[1199] _Burr Trials_, I, 469-72.

[1200] _Blennerhassett Papers_: Safford, 343.

[1201] It was this farrago, published in every newspaper, that had influenced the country only less than Jefferson's Special Message to Congress.

[1202] Commodore Decatur's testimony was almost identical with that of Truxtun. More convincing still, General Adair, writing before the trial began, told substantially the same story. (Adair's statement, March, 1807, as quoted in Parton: _Burr_, footnote to 493.)

[1203] For the full Morgan testimony, see _Burr Trials_, I, 497-506.

[1204] _Burr Trials_, I, 514-18.

[1205] _Ib._ 518-26.

[1206] _Burr Trials_, I, 527-28.

[1207] Belknap was undoubtedly one of those whom Poole saw cross the stream. Woodbridge and Dana were the others.

[1208] _Burr Trials_, I, 529.

[1209] These young men were thinking of joining the expedition.

[1210] The physician who accompanied the party.

[1211] _Burr Trials_, I, 528-29.

[1212] _Ib._ 529.

[1213] _Burr Trials_, I, 533-34.

[1214] _Ib._ 555-56.

[1215] _Burr Trials_, I, 557.

[1216] _Ib._ II, 3-12.

[1217] _Ib._ 25.

[1218] _Ib._ 26-27.

[1219] _Blennerhassett Papers_: Safford, 354-55.

[1220] Alston's description in _ib._ 360.

[1221] _Burr Trials_, II, 42.

[1222] _Blennerhassett Papers_: Safford, 360.

[1223] The temperature was very high throughout the trial. One night Blennerhassett was overcome by it. (_Ib._ 319.)

[1224] _Burr Trials_, II, 57.

[1225] _Ib._ 57-59.

[1226] _Burr Trials_, II, 61-65.

[1227] _Ib._ 92.

[1228] See _Burr Trials_, II, 96-98.

For this famous passage of Wirt's speech, see Appendix E.

Burr was vastly amused by it and it became "a standing joke with him for the rest of his life." (See Parton: _Burr_, 506.) But it was no "joke"--standing or otherwise--to the people. They believed Wirt's imagery to be a statement of the facts.

[1229] "Wirt raised his reputation yesterday, as high as MacRae sunk his the day before." (_Blennerhassett Papers_: Safford, 366.)

[1230] _Burr Trials_, II, 123-24.

[1231] See Hay's complaint that Botts talked so fast that he could not make notes on his points. (_Ib._ 194.)

[1232] _Burr Trials_, II, 128-35.

[1233] _Ib._ 168. Another story "propagated through the crowd" was that Burr had, by his "emissaries," attempted to poison with laudanum one of the Government's witnesses--this although the particular witness had been brought to Richmond to testify only that Wilkinson was not in the pay of Spain. (_Blennerhassett Papers_: Safford, 367.)

[1234] _Burr Trials_, II, 164-73.

[1235] Botts here refers to the public outcry against Jefferson, while Governor during the Revolution, that nearly resulted in his impeachment. (See vol. I, 143-44, of this work.)

[1236] _Burr Trials_, II, 135-92.

[1237] _Ib._ 224.

[1238] _Ib._ 192-236.

[1239] _Ib._ 193-94.

[1240] _Ib._ 200-19, 235.

[1241] See vol. II, 201, 428, of this work.

[1242] _Burr Trials_, II, 237-80.

[1243] Blennerhassett, in his diary, makes frequent mention of Martin's drinking: "Martin was both yesterday and to-day more in his cups than usual, and though he spared neither his prudence nor his feelings, he was happy in all his hits." (_Blennerhassett Papers_: Safford, 438.)

"I ... recommended our brandy ... placing a pint tumbler before him. No ceremonies retarded the libation." (_Ib._ 377.)

"Luther Martin has just made his final immersion into the daily bath of his faculties." (_Ib._ 463.)