Chapter IX: What Is Treason? (3)

[1244] _Burr Trials_, II, 260.

[1245] _Burr Trials_, II, 262.

[1246] _Ib._ 275-79; see also 339-42, 344-48.

[1247] _Burr Trials_, II, 334.

[1248] _Ib._ 377.

[1249] One of those who told Martin this was Marshall himself. See _supra_, 401.

[1250] _Burr Trials_, II, 377-78.

[1251] Randolph made another speech, but it was of no moment.

[1252] See _supra_, footnote to 499.

[1253] _Blennerhassett Papers_: Safford, 367.

[1254] _Burr Trials_, II, 401; also in 4 Cranch, 470.

[1255] 25th, of Edward III.

[1256] _Burr Trials_, II, 402-03; 4 Cranch, 470.

[1257] _Burr Trials_, II, 403; 4 Cranch, 471.

[1258] _Burr Trials_, II, 404-05; 4 Cranch, 472.

[1259] The doctrine that accessories are as guilty as principals.

[1260] _Burr Trials_, II, 406-08; 4 Cranch, 476. This reference is to Jefferson's explanation of Marshall's opinion in Bollmann and Swartwout, which Giles and other Republican leaders were proclaiming throughout Virginia. It had been adopted by the grand jury; and it was this construction of Marshall's language under which they returned the bills of indictment for treason. Had the grand jury understood the law to be as Marshall was now expounding it, Burr would not have been indicted for treason.

[1261] _Burr Trials_, II, 409; 4 Cranch, 476.

[1262] _Burr Trials_, II, 409-13; 4 Cranch, 477-80.

[1263] _Burr Trials_, II, 415; 4 Cranch, 481.

[1264] _Burr Trials_, II, 415-23; 4 Cranch, 482-88.

[1265] _Burr Trials_, II, 425; 4 Cranch, 490.

[1266] This part of Marshall's opinion (_Burr Trials_, II, 425-34; 4 Cranch, 490-504) is reproduced in full in Appendix F.

[1267] _Burr Trials_, II, 426; 4 Cranch, 492.

[1268] _Burr Trials_, II, 429; 4 Cranch, 494.

[1269] _Burr Trials_, II, 430; 4 Cranch, 495.

[1270] _Burr Trials_, II, 436; 4 Cranch, 500.

[1271] _Burr Trials_, II, 436-37; 4 Cranch, 500. These paragraphs furnish a perfect example of Marshall's method of statement and logic--the exact antithesis plainly put, the repetition of precise words with only the resistless monosyllables, "if" and "then," between them.

[1272] _Burr Trials_, II, 437; 4 Cranch, 501.

[1273] _Burr Trials_, II, 443; 4 Cranch, 506.

[1274] _Burr Trials_, II, 444-45; 4 Cranch, 507.

[1275] _Burr Trials_, II, 446.

[1276] _Burr Trials_, II, 446-47. Martin was right; the verdict should have been either "guilty" or "not guilty."

[1277] _Blennerhassett Papers_: Safford, 339.

[1278] _Burr Trials_, II, 447.

[1279] _Blennerhassett Papers_: Safford, 356-58; and see Adams: _U.S._ III, 448, 464-65. Duane was known to have unbounded influence with Jefferson, who ascribed his election to the powerful support given him by the _Aurora_.

Government agents also tried to seduce Colonel de Pestre, another of Burr's friends, by insinuating "how handsomely the Col. might be provided for in the army, if his principles ... were not adverse to the administration." De Pestre's brother-in-law "had been turned out of his place as Clerk in the War Office, because he could not accuse the Col. of Burr-ism." (_Blennerhassett Papers_: Safford, 328-29.)

[1280] _Burr Trials_, II, 448-49.

[1281] _Ib._ 455.

[1282] Jefferson to Hay, Sept. 4, 1807, as quoted in Adams, _U.S._ III, 470; and see _Jefferson_: Randolph, IV, 102.

[1283] Adams: _U.S._ III, 470.

[1284] See _infra_, 524.

[1285] _Burr Trials_, II, 473-80.

[1286] _Ib._ 480. This statement of Botts is of first importance. The whole proceeding on the part of the Government was conspicuously marked by a reliance upon public sentiment to influence court and jury through unceasing efforts to keep burning the fires of popular fear and hatred of Burr, first lighted by Jefferson's Proclamation and Message. Much repetition of this fact is essential, since the nature and meaning of the Burr trial rests upon it.

[1287] _Burr Trials_, II, 481-503.

[1288] Van Santvoord: _Sketches of the Lives and Judicial Services of the Chief-Justices of the United States_, 379. Yet popular sentiment was the burden of many of the speeches of Government counsel throughout the trial.

[1289] _Blennerhassett Papers_: Safford, 402.

[1290] _Burr Trials_, II, 504.

[1291] _Ib._ 511.

[1292] Jefferson to Hay, no date; but Paul Leicester Ford fixes it between August 7 and 20, 1807. It is, says Ford, "the mere draft of a letter ... which may never have been sent, but which is of the utmost importance." (_Works_: Ford, X, 406-07.) It would seem that Jefferson wrote either to Marshall or Judge Griffin personally, for the first words of his astounding letter to Hay were: "The _enclosed letter_ is written in a spirit of conciliation," etc., etc. Whether or not the President actually posted the letter to Hay, the draft quoted in the text shows the impression which Marshall's order made on Jefferson. (Italics the author's.)

[1293] _Burr Trials_, II, 513-14.

[1294] _Ib._ 514-33.

[1295] This remark of Marshall would seem to indicate that Hay had tried to patch up "a truce" between the President and the Chief Justice, as Jefferson desired him to do. If so, it soon expired.

[1296] _Burr Trials_, II, 533-37.

[1297] Hay to Jefferson, Sept. 5, 1807, Jefferson MSS. Lib. Cong.

[1298] The printed record does not show this, but Jefferson, in his letter to Hay, September 7, says: "I received, late last night, your favor of the day before, and now re-enclose you the subpoena."

[1299] Jefferson to Hay, Sept. 7, 1807, _Works_: Ford, X, 408.

[1300] For some reason the matter was not again pressed. Perhaps the favorable progress of the case relieved Burr's anxiety. It is possible that the "truce" so earnestly desired by Jefferson was arranged.

[1301] _Blennerhassett Papers_: Safford, 394.

[1302] "Today, the Chief Justice has delivered an able, full, and luminous opinion as ever did honor to a judge, which has put an end to the present prosecution." (_Blennerhassett Papers_: Safford, 403.)

[1303] _Annals_, 10th Cong. 1st Sess. 416-19.

[1304] This appears from the record itself. (See Wilkinson's testimony, _ib._ 512-44; also testimony of Major James Bruff, _ib._ 589-90.) Blennerhassett, who usually reported faithfully the general impression, notes in his diary: "The General exhibited the manner of a sergeant under a courtmartial, rather than the demeanor of an accusing officer confronted with his culprit." (_Blennerhassett Papers_: Safford, 422.)

[1305] _Ib._ 418.

[1306] Record, MSS. Archives U.S. Circuit Court, Richmond, Va.

[1307] _Blennerhassett Papers_: Safford, 404.

[1308] _Ib._ 409-10.

[1309] _Ib._ 416.

[1310] _Ib._ 412-13.

[1311] Daveiss: "A View of the President's Conduct Concerning the Conspiracy of 1806."

[1312] _Blennerhassett Papers_: Safford, 465-66.

[1313] _Ib._ 502.

[1314] The brother of John Thompson, author of "The Letters of Curtius" which attacked Marshall in 1798. (See vol. II, 395-96, of this work.)

[1315] Thompson's "view" was published as a series of letters to Marshall immediately after the trial closed. (See _infra_, 533-35.)

[1316] Jefferson to Thompson, September 26, 1807, _Works_: Ford, X, 501-02.

[1317] Plumer, Aug. 15, 1807, "Diary," Plumer MSS. Lib. Cong.

[1318] Hay to Jefferson, Oct. 15, 1807, Jefferson MSS. Lib. Cong.

[1319] This statement is lucid, conspicuously fair, and, in the public mind, would have cleared Burr of any taint of treason, had not Jefferson already crystallized public sentiment into an irrevocable conviction that he was a traitor. (See _Annals_, 10th Cong. 1st Sess. 766-78.)

[1320] _Ib._

[1321] Burr to his daughter, Oct. 23, 1807, Davis, II, 411-12.

[1322] Hay to Jefferson, Oct. 21, 1807, Jefferson MSS. Lib. Cong.

[1323] _Blennerhassett Papers_: Safford, 301. If this were only the personal opinion of Burr's gifted but untrustworthy associate, it would not be weighty. But Blennerhassett's views while at Richmond, as recorded in his diary, were those of all of Burr's counsel and of the Richmond Federalists.

[1324] No wonder the Government abandoned the case. Nearly all the depositions procured by Hay under Jefferson's orders demonstrated that Burr had not the faintest intention of separating the Western States from the Union, or even of attacking Mexico unless war broke out between Spain and the United States. See particularly deposition of Benjamin Stoddert of Maryland, October 9, 1807 (_Quarterly Pub. Hist. and Phil. Soc. Ohio_, IX, nos. 1 and 2, 7-9); of General Edward Tupper of Ohio, September 7, 1807 (_ib._ 13-27); and of Paul H. M. Prevost of New Jersey, September 28, 1807 (_ib._ 28-30).

[1325] See _infra_, 536.

[1326] Marshall to Peters, Nov. 23, 1807, Peters MSS. Pa. Hist. Soc.

[1327] Hay, for the moment mollified by Marshall's award of two thousand dollars as his fee, had made no further complaint for several days.

[1328] See _supra_, chap. I, 35-36; also vol. II, 429-30, of this work.

[1329] Jefferson's Seventh Annual Message, first draft, _Works_: Ford, X, 523-24.

[1330] See notes of Gallatin and Rodney, _Works_: Ford, X, footnotes to 503-10.

[1331] Jefferson's Seventh Annual Message, second draft, _Works_: Ford, X, 517. Blennerhassett, and probably Burr, would not have grieved had Marshall been impeached. It would be "penance for that timidity of conduct, which was probably as instrumental in keeping him from imbruing his hands in our blood as it was operative in inducing him to continue my vexations [the commitment of the conspirators to be tried in Ohio], to pacify the menaces and clamorous yells of the cerberus of Democracy with a sop which he would moisten, at least, with the tears of my family." (_Blennerhassett Papers_: Safford, 465.)

[1332] See vol. II, 464-71, of this work.

[1333] "Portrait of the Chief Justice," in the Richmond _Enquirer_, Nov. 6, 1807. This article fills more than two closely printed columns. It discusses, and not without ability, the supposed errors in Marshall's opinions.

[1334] _Enquirer_, Nov. 24, 1807.

[1335] Marshall's _Life of Washington_.

[1336] See vol. II, 395-96, of this work.

[1337] "Letters to John Marshall, Chief Justice of the United States," in the _Aurora_, reprinted in the _Enquirer_, Dec. 1, 1807.

[1338] _Enquirer_, Dec. 4, 1807.

[1339] _Ib._ Dec. 8, 1807.

[1340] See _supra_, 525-26.

[1341] _Enquirer_, Dec. 12, 1807.

[1342] _Blennerhassett Papers_: Safford, 475.

[1343] _Blennerhassett Papers_: Safford, 477.

[1344] Gathering a few dollars from personal friends, Burr sailed for England, hoping to get from the British Government support for his plans to revolutionize Mexico. At first all went well. Men like Jeremy Bentham and Sir Walter Scott became his friends and admirers. But the hand of Jefferson followed him; and on representations of the American Minister, the British Government ordered him to leave the United Kingdom immediately.

Next he sought the ear of Napoleon; but again he was flouted and insulted by the American diplomatic and consular representatives--he was, they said, "a fugitive from justice." His last sou gone, ragged and often hungry, he managed at last, by the aid of one John Reeves, to secure passage for Boston, where he landed May 4, 1812. Then he journeyed to New York, where he arrived June 30 in abject poverty and utterly ruined. But still his spirit did not give way.

Soon, however, fate struck him the only blow that, until now, ever had brought this iron man to his knees. His passionately beloved little grandson, Aaron Burr Alston, died in June. In December, another and heavier stroke fell. His daughter sailed from Charleston, South Carolina, to join and comfort her father and be comforted by him. Her ship was lost in a storm, and Theodosia the beautiful, the accomplished, the adored, was drowned. Then, at last, the heart of Aaron Burr was broken.

Of the many ridiculous stories told of Burr and his daughter, one was that her ship was captured by pirates and she, ordered to walk the plank, did so with her child in her arms "without hesitation or visible tremor." This absurdity was given credit and currency by Harriet Martineau. (See Martineau: _Western Travels_, II, 291-92.) Theodosia's child had died six months before she sailed from Charleston to go to her father, and she embarked in a pilot boat, about which no pirate would have troubled himself.

The remainder of Burr's long life was given to the practice of his profession. His industry, legal learning, and ability, once more secured for him a good business. In 1824, Marshall ruled on an application to restore an attorney named Burr to the bar of the Circuit Court of the District of Columbia from which he had been suspended for unprofessional conduct. (_Ex parte_ Burr, 9 Wheaton, 529-31.) It has often been erroneously supposed that this applicant was Aaron Burr: he was, however, one Levi Burr, a local practitioner, and not related to Aaron Burr.

It is characteristic of Burr that he remembered the great lawyer who voluntarily had hastened to defend him at Richmond, and Luther Martin--aged, infirm, and almost deranged--was taken to the home of Aaron Burr and tenderly cared for until he died. Burr's marriage, at the age of seventy-eight, to Madame Jumel was, on his part, inexplicable; it was the only regrettable but not unworthy incident of the latter years of his life. (See Shelton: _Jumel Mansion_, 170-74.)

Burr's New York friends were loyal to him to his very last day. His political genius never grew dim. He early suggested and helped to bring about the nomination of Andrew Jackson for the Presidency. Thus did he pay the debt of gratitude for the loyalty with which the rugged Tennesseean had championed his cause against public opinion and Administration alike.

During the summer of 1836 his last illness came upon him. When his physician said that he could live but a few hours longer, a friend at his bedside asked the supposedly expiring man "whether in the expedition to the Southwest he had designed a separation of the Union." Believing himself to be dying, Burr replied: "No! I would as soon have thought of taking possession of the moon and informing my friends that I intended to divide it among them." To a man, his most intimate friends believed this statement to be true.

Finally, on September 14, 1836, Aaron Burr died and was buried near his father at Princeton, New Jersey, where the parent had presided over, and the son had attended, that Alma Mater of so many patriots, soldiers, and statesmen.

For two years his burial place was unmarked. Then, at night-time, unknown friends erected over his grave a plain marble shaft, bearing this inscription:

AARON BURR

Born Feb. 6, 1756
Died Sept. 14, 1836
Colonel in the Army of the Revolution
Vice-President of the United States from 1801 to 1805

(_Gulf States Historical Magazine_, II, 379.)

Parton's _Life of Burr_ is still the best story of this strange life. But Parton must be read with great care, for he sometimes makes statements which are difficult of verification.

A brief, engaging, and trustworthy account of the Burr episode is _Aaron Burr_, by Isaac Jenkinson. Until the appearance of Professor McCaleb's book, _The Aaron Burr Conspiracy_, Mr. Jenkinson's little volume was the best on that subject. Professor McCaleb's thorough and scholarly study is, however, the only exhaustive and reliable narrative of that ambitious plan and the disastrous outcome of the attempted execution of it.

[1345] _Blennerhassett Papers_: Safford, 480-82; also see _Baltimore American_, Nov. 4, 5, 6, 1807.

[1346] _Annals_, 10th Cong. 1st Sess. 108-27.

[1347] The bill passed the Senate, but foreign affairs, and exciting legislation resulting from these, forced it from the mind of the House. (See vol. IV, chap. I, of this work.)

[1348] John Quincy Adams of Massachusetts, Samuel Maclay of Pennsylvania, Jesse Franklin of North Carolina, Samuel Smith of Maryland, John Pope of Kentucky, Buckner Thruston of Kentucky, and Joseph Anderson of Tennessee. (_Annals_, 10th Cong. 1st Sess. 42.)

[1349] Smith had been indicted for treason and misdemeanor, but Hay had entered a _nolle prosequi_ on the bills of indictment after the failure of the Burr prosecution. (_Memoirs, J. Q. A._: Adams, I, 481.)

[1350] Adams had been indulging in political maneuvers that indicated a courtship of the Administration and a purpose to join the Republican Party. His course had angered and disgusted most of his former Federalist friends and supporters, who felt that he had deserted his declining party in order to advance his political fortunes. If this were true, his performance in writing the Committee report on the resolution to expel Smith was well calculated to endear him to Jefferson. Adams expressed his own views thus: "On most of the great national questions now under discussion, my sense of duty leads me to support the administration, and I find myself of course in opposition to the federalists in general.... My political prospects are declining." (_Memoirs, J. Q. A._: Adams, I, 497-98.)

The Federalist Legislature of Massachusetts grossly insulted Adams by electing his successor before Adams's term in the Senate had expired. Adams resigned, and in March, 1809, President Madison appointed him Minister to Russia, and later Minister to Great Britain. President Monroe made the former Federalist his Secretary of State. No Republican was more highly honored by these two Republican Presidents than was John Quincy Adams.

[1351] Adams did not, of course, mention Marshall by name. His castigation of the Chief Justice, however, was the more severe because of the unmistakable designation of him. (See _Writings, J. Q. A._: Ford, III, 173-84; also _Annals_, 10th Cong. 1st Sess. 56-63.)

It must be remembered, too, that this attack upon Marshall comes from the son of the man who, on January 20, 1801, appointed Marshall Chief Justice. (See vol. II, 552-53, of this work.) But John Quincy Adams soon came to be one of the stanchest supporters and most ardent admirers that Marshall ever had. It was peculiarly characteristic of Marshall that he did not resent the attack of Adams and, for the only time in his judicial career, actually interested himself in politics in behalf of Adams. (See vol. IV, chap. IX, of this work.)

[1352] Adams's colleague Senator Pickering was, of course, disgusted (see his letter to King, Jan. 2, 1808, King, V, 44), and in a pamphlet entitled "A Review of the Correspondence Between the Hon. John Adams and the late William Cunningham, Esq." which he published in 1824, Pickering wrote that the resolution "outraged ... every distinguished lawyer in America" (see p. 41 of pamphlet). King thought Adams "indiscreet" (see his letter to Pickering, Jan. 7, 1808, King, V, 50). Plumer declared that the report "had given mortal offence" in New Hampshire (see _Mass. Historical Society Proceedings_, XLV, 357). John Lowell asserted that "justice ... was to be dragged from her seat ... and the eager minister of presidential vengeance seemed to sigh after the mild mercies of the star chamber, and the rapid movements of the revolutionary tribunal" (see his "Remarks" as quoted in _Writings, J. Q. A._: Ford, III, footnote to 184).

[1353] Jan. 28, 1808, _Memoirs, J. Q. A._: Adams, I, 508; see also _Writings, J. Q. A._: Ford, III, footnote to 184.

[1354] "He poured himself forth in his two speeches to-day.... It was all a phillipic upon me." (Jan. 7, 1808, _Memoirs, J. Q. A._: Adams, I, 501.)

[1355] _Ib._

[1356] _Annals_, 10th Cong. 1st Sess. 324.

[1357] "Mr. Giles, in one of the most animated and eloquent speeches I ever heard him make, declared himself ... against the resolution for expulsion. He argued the case of Mr. Smith with all his eloquence, and returned to the charge with increasing warmth until the last moment." (April 9, 1808, _Memoirs, J. Q. A._: Adams, I, 528.)

[1358] _Annals_, 10th Cong. 1st Sess. 321-24.