ADMINISTRATION VERSUS COURT
In substance Jefferson said that if Marshall should suffer Burr
to escape, Marshall himself should be removed from office.
(Henry Adams.)
It becomes our duty to lay the evidence before the public. Go
into any expense necessary for this purpose. (Jefferson.)
The President has let slip the dogs of war, the hell-hounds of
persecution, to hunt down my friend. (Luther Martin.)
If you cannot exorcise the demon of prejudice, you can chain him
down to law and reason. (Edmund Randolph.)
On May 22, 1807, the hall of the House of Delegates at Richmond was
densely crowded long before the hour of half-past twelve, when John
Marshall took his seat upon the bench and opened court. So occupied was
every foot of space that it was with difficulty that a passage was
opened through which the tall, awkwardly moving, and negligently clad
Chief Justice could make his way. By Marshall's side sat Cyrus Griffin,
Judge of the District Court, who throughout the proceedings was
negligible.
The closely packed spectators accurately portrayed the dress, manners,
and trend of thought of the American people of that period. Gentlemen in
elegant attire--hair powdered and queues tied in silk, knee breeches and
silver buckles, long rich cloth coats cut half away at the waist,
ruffled shirts and high stocks--were conspicuous against the background
of the majority of the auditors, whose apparel, however, was no less
picturesque.
This audience was largely made up of men from the smaller plantations,
men from the mountains, men from the backwoods, men from the frontiers.
Red woolen shirts; rough homespun or corduroy trousers, held up by
"galluses"; fringed deerskin coats and "leggings" of the same material
kept in place by leather belts; hair sometimes tied by strings in
uncouth queues, but more often hanging long and unconfined--in such garb
appeared the greater part of the attendance at the trial of Aaron Burr.
In forty years there had been but little change in the general
appearance of Virginians[1017] except that fewer wore the old dignified
and becoming attire of well-dressed men.
Nearly all of them were Republicans, plain men, devoted to Jefferson as
the exponent of democracy and the heaven-sent leader of the people.
Among these Jeffersonians, however, were several who, quite as much as
the stiffest Federalists, prided themselves upon membership in the
"upper classes."
Nearly all of the Republicans present, whether of the commonalty or the
gentry, were against Aaron Burr. Scattered here and there were a few
Federalists--men who were convinced that democracy meant the ruin of the
Republic, and who profoundly believed that Jefferson was nothing more
than an intriguing, malicious demagogue--most of whom looked upon Burr
with an indulgent eye. So did an occasional Republican, as now and then
a lone Federalist denounced Burr's villainy.
The good-sized square boxes filled with sand that were placed at
infrequent intervals upon the floor of the improvised court-room were
too few to receive the tobacco juice that filled the mouths of most of
the spectators before it was squirted freely upon the floor and wall.
Those who did not chew the weed either smoked big cigars and fat pipes
or contented themselves with taking snuff.[1018] Upon recess or
adjournment of court, all, regularly and without loss of time, repaired
to the nearest saloons or taverns and strengthened themselves, with
generous draughts of whiskey or brandy, taken "straight," for a firmer,
clearer grasp of the points made by counsel.
Never, in its history, had Richmond been so crowded with strangers.
Nearly five thousand people now dwelt in the Virginia Capital, the site
of which was still "untamed and broken" by "inaccessible heights and
deep ravines."[1019] Thousands of visitors had come from all over the
country to witness the prosecution of that fallen angel whose dark
deeds, they had been made to believe, had been in a fair way to destroy
the Nation. The inns could shelter but an insignificant fraction of
them, and few were the private houses that did not take in men whom the
taverns could not accommodate. Hundreds brought covered wagons or tents
and camped under the trees or on the river-banks near the city.
Correspondents of the press of the larger cities were present, among
them the youthful[1020] Washington Irving, who wrote one or two articles
for a New York paper.
[Illustration: _The Old State House. Richmond, Va._
_Where Marshall presided at the Burr trial._]
In the concourse thus drawn to Richmond, few there were who were not
certain that Burr had planned and attempted to assassinate Jefferson,
overthrow the Government, shatter the Nation, and destroy American
"liberty"; and so vocal and belligerent was this patriotic majority that
men who at first held opinions contrary to the prevailing sentiment, or
who entertained doubts of Burr's guilt, kept discreetly silent. So
aggressively hostile was public feeling that, weeks later, when the
bearing and manners of Burr, and the devotion, skill, and boldness of
his counsel had softened popular asperity, Marshall declared that, even
then, "it would be difficult or dangerous for a jury to venture to
acquit Burr, however innocent they might think him."[1021] The
prosecution of Aaron Burr occurred when a tempest of popular prejudice
and intolerance was blowing its hardest.
The provision concerning treason had been written into the American
Constitution "to protect the people against that horrible and dangerous
doctrine of constructive treason which had stained the English records
with blood and filled the English valleys with innocent graves."[1022]
The punishment for treason in all countries had been brutal and savage
in the extreme. In England, that crime had not perhaps been treated
with such severity as elsewhere. Yet, even in England, so harsh had been
the rulings of the courts against those charged with treason, so inhuman
the execution of judgments upon persons found guilty under these
rulings, so slight the pretexts that sent innocent men and women to
their death,[1023] that the framers of our fundamental law had been
careful to define treason with utmost clearness, and to declare that
proof of it could only be made by two witnesses to the same overt act or
by confession of the accused in open court.[1024]
That was one subject upon which the quarreling members of the
Constitutional Convention of 1787 had been in accord, and their solution
of the question had been the one and the only provision of which no
complaint had been made during the struggle over ratification.
Every member of that Convention--every officer and soldier of the
Revolution from Washington down to private, every man or woman who had
given succor or supplies to a member of the patriot army, everybody who
had advocated American independence--all such persons could have been
prosecuted and might have been convicted as "traitors" under the British
law of constructive treason.[1025] "None," said Justice James Iredell in
1792, "can so highly ... prize these provisions [of the Constitution] as
those who are best acquainted with the abuses which have been practised
in other countries in prosecutions for this offence.... We ... hope that
the page of American history will never be stained with prosecutions for
treason, begun without cause, conducted without decency, and ending in
iniquitous convictions, without the slightest feelings of
remorse."[1026]
Yet, six years later, Iredell avowed his belief in the doctrine of
constructive treason.[1027] And in less than seventeen years from the
time our National Government was established, the reasons for writing
into the Constitution the rigid provision concerning treason were
forgotten by the now thoroughly partisanized multitude, if, indeed, the
people ever knew those reasons.
Moreover, every National judge who had passed upon the subject, with the
exception of John Marshall, had asserted the British doctrine of
constructive treason. Most of the small number who realized the cause
and real meaning of the American Constitutional provision as to treason
were overawed by the public frenzy; and brave indeed was he who defied
the popular passion of the hour or questioned the opinion of Thomas
Jefferson, then at the summit of his popularity.[1028]
One such dauntless man, however, there was among the surging throng that
filled the Capitol Square at Richmond after the adjournment of court on
May 22, and he was a vigorous Republican, too. "A tall, lank,
uncouth-looking personage, with long locks of hair hanging over his
face, and a queue down his back tied in an eel-skin, his dress singular,
his manners and deportment that of a rough backwoodsman,"[1029] mounted
the steps of a corner grocery and harangued the glowering assemblage
that gathered in front of him.[1030] His daring, and an unmistakable air
that advertised danger to any who disputed him, prevented that violent
interruption certain to have been visited upon one less bold and
formidable. He praised Burr as a brave man and a patriot who would have
led Americans against the hated Spanish; he denounced Jefferson as a
persecutor who sought the ruin of one he hated. Thus Andrew Jackson of
Tennessee braved and cowed the hostile mob that was demanding and
impatiently awaiting the condemnation and execution of the one who, for
the moment, had been made the object of the country's execration.[1031]
Jackson had recovered from his brief distrust of Burr, and the reaction
had carried his tempestuous nature into extreme championship of his
friend. "I am more convinced than ever," he wrote during the trial,
"that treason was never intended by Burr."[1032] Throughout the extended
and acrimonious contest, Jackson's conviction grew stronger that Burr
was a wronged man, hounded by betrayers, and the victim of a political
conspiracy to take his life and destroy his reputation. And Jackson
firmly believed that the leader of this cabal was Thomas Jefferson. "I
am sorry to say," he wrote, "that this thing [the Burr trial] has ...
assumed the shape of a political persecution."[1033]
The Administration retaliated by branding Andrew Jackson a "malcontent";
and Madison, because of Jackson's attitude, prevented as long as
possible the military advancement of the refractory Tennesseean during
the War of 1812.[1034] On the other hand, Burr never ceased to be
grateful to his frontiersman adherent, and years later was one of those
who set in motion the forces which made Andrew Jackson President of the
United States.[1035]
Nor was Jackson the only Republican who considered Jefferson as the
contriving and energizing hand of the scheme to convict Burr. Almost
riotous were the efforts to get into the hall where the trial was held,
though it was situated on a steep hill and "the ascent to the building
was painfully laborious."[1036] Old and eminent lawyers of Richmond
could not reach the bar of the court, so dense was the throng.
One youthful attorney, tall and powerful, "the most magnificent youth in
Virginia," determined to witness the proceedings, shouldered his way
within and "stood on the massive lock of the great door" of the
chamber.[1037] Thus Winfield Scott got his first view of that striking
scene, and beheld the man whose plans to invade Mexico he himself, more
than a generation afterward, was to carry out as Commander of the
American Army. Scott, there and then, arrived at conclusions which a
lifetime of thought and experiences confirmed. "It was President
Jefferson who directed and animated the prosecution," he declares in his
"Memoirs." Scott records the political alignment that resulted: "Hence
every Republican clamored for execution. Of course, the Federalists ...
compacted themselves on the other side."[1038]
Of all within the Hall of Delegates, and, indeed, among the thousands
then in Richmond, only two persons appeared to be perfectly at ease. One
of them was John Marshall, the other was Aaron Burr. Winfield Scott
tells us of the manner of the imperiled man as he appeared in court on
that sultry midday of May: "There he stood, in the hands of power, on
the brink of danger, as composed, as immovable, as one of Canova's
living marbles." But, says Scott, "Marshall was the master spirit of the
scene."[1039]
Gathered about Burr were four of his counsel, the fifth and most
powerful of his defenders, Luther Martin, not yet having arrived. The
now elderly Edmund Randolph, bearing himself with "overawing dignity";
John Wickham, whose commanding presence corresponded well with his
distinguished talents and extensive learning; Benjamin Botts, a very
young lawyer, but of conceded ability and noted for a courage, physical
and moral, that nothing could shake; and another young attorney, John
Baker, a cripple, as well known for his wit as Botts for his
fearlessness--this was the group of men that appeared for the defense.
For the prosecution came Jefferson's United States District Attorney,
George Hay--eager, nervous, and not supremely equipped either in mind or
attainments; William Wirt--as handsome and attractive as he was eloquent
and accomplished, his extreme dissipation[1040] now abandoned, and who,
by his brilliant gifts of intellect and character, was beginning to lay
the solid foundations of his notable career; and Alexander MacRae, then
Lieutenant-Governor of Virginia--a sour-tempered, aggressive,
well-informed, and alert old Scotchman, pitiless in his use of sarcasm,
caring not the least whom he offended if he thought that his affronts
might help the cause for which he fought. David Robertson, the
stenographer who reported the trial, was a scholar speaking five or six
languages.[1041]
With all these men Marshall was intimately acquainted, and he was well
assured that, in making up his mind in any question which arose, he
would have that assistance upon which he so much relied--exhaustive
argument and complete exposition of all the learning on the subject to
be decided.
Marshall was liked and admired by the lawyers on both sides, except
George Hay, who took Jefferson's view of the Chief Justice. Indeed, the
ardent young Republican District Attorney passionately espoused any
opinion the President expressed. The whole bar understood the strength
and limitations of the Chief Justice, the power of his intellect no less
than his unfamiliarity with precedents and the learning of the law. From
these circumstances, and from Marshall's political wisdom in giving the
lawyers a free hand, resulted a series of forensic encounters seldom
witnessed or even tolerated in a court of justice.
The first step in the proceedings was the examination by the grand jury
of the Government's witnesses, and its return, or refusal to return,
bills of indictment against Burr. When the clerk had called the names of
those summoned on the grand jury, Burr arose and addressed the court.
Clad in black silk, hair powdered and queue tied in perfect fashion, the
extreme pallor of his face in striking contrast to his large black
eyes, he made a rare picture of elegance and distinction in the uncouth
surroundings of that democratic assemblage.
The accused man spoke with a quiet dignity and an "impressive
distinctness" which, throughout the trial, so wrought upon the minds of
the auditors that, fifty years afterward, some of those who heard him
could repeat sentences spoken by him.[1042] Burr now objected to the
panel of the grand jury. The law, he said, required the marshal to
summon twenty-four freeholders; if any of these had been struck off and
others summoned, the act was illegal, and he demanded to know whether
this had been done.[1043]
For an hour or more the opposing counsel wrangled over this point.
Randolph hints at the strategy of the defense: "There never was such a
torrent of prejudice excited against any man, before a court of justice,
as against colonel Burr, and by means which we shall presently unfold."
Marshall sustained Burr's exception: undoubtedly the marshal had acted
"with the most scrupulous regard to what he believed to be the law,"
but, if he had changed the original panel, he had transcended his
authority.[1044] It was then developed that the panel had been changed,
and the persons thus illegally placed on the grand jury were
dismissed.[1045]
"With regret," Burr demanded the right to challenge the remainder of the
grand jury "for favour."[1046] Hay conceded the point, and Burr
challenged Senator William Branch Giles. Merely upon the documents in
Jefferson's Special Message to Congress, Giles had advocated that the
writ of habeas corpus be suspended, and this, argued Burr, he could have
done only if he supposed "that there was a rebellion or insurrection,
and a public danger, of no common kind." This action of Giles was a
matter of record; moreover, he had publicly made statements to the same
effect.[1047]
Senator Giles admitted that he had acted and spoken as Burr charged; and
while denying that he held any "personal resentments against the
accused," and asserting that he could act fairly as a grand juror, he
graciously offered to withdraw. Marshall mildly observed that "if any
gentleman has made up and declared his mind, it would be best for him to
withdraw." With superb courtesy, Burr disavowed any reflection on Giles;
it was merely above "human nature" that he should not be prejudiced. "So
far from having any animosity against him, he would have been one of
those whom I should have ranked among my personal friends."
Burr then challenged Colonel Wilson Cary Nicholas,[1048] who spiritedly
demanded the objections to him. Nicholas "entertained a bitterly
personal animosity" against him, replied Burr. He would not, however,
insist upon "further inquiry" if Nicholas would withdraw as Giles had
done. Nicholas then addressed the court. He had been a member of the
National House, he said, "when the attempt was made to elect colonel
Burr president," and everybody knew how he felt about that incident. He
had been in the Senate for three years "while colonel Burr was president
of that body," and had done all he could to nominate Clinton in Burr's
stead.
His suspicions had been "very much excited" when Burr made his Western
journey, and he had openly stated his "uncommon anxiety" concerning "not
only the prosperity, but the union of the states." Therefore, he had not
desired to serve on the grand jury and had asked the marshal to excuse
him. He had finally consented solely from his delicate sense of public
duty. Also, said Nicholas, he had been threatened with the publication
of one of the "most severe pieces" against him if he served on the grand
jury; and this inclined him to "defy [his] enemies [rather] than to ask
their mercy or forbearance."
His friends had advised him not to make mention of this incident in
court; but, although he was "not scrupulous of acquiring, in this way, a
reputation of scrupulous delicacy," and had determined to heed the
counsel of his friends, still, he now found himself so confused that he
did not know just what he ought to do. On the whole, however, he thought
he would follow the example of Senator Giles and withdraw.[1049]
At that very moment, Nicholas was a Republican candidate for Congress
and, next to Giles, Jefferson's principal political agent in Virginia.
Four days after Burr had been brought to Richmond, Jefferson had written
Nicholas a letter of fulsome flattery "beseeching" him to return to the
National House in the place of the President's son-in-law, Thomas Mann
Randolph, who had determined to retire, and assuring him of the
Republican leadership if he would do so.[1050]
Thus, for a moment, was revealed a thread of that web of intrigue and
indirect influence which, throughout the trial, was woven to enmesh
judge, jury, and public. Burr was instantly upon his feet denouncing in
his quiet but authoritative manner the "attempt to intimidate" Nicholas
as "a contrivance of some of [his] enemies for the purpose of
irritating" the hot-blooded Republican politician "and increasing the
public prejudice against [Burr]; since it was calculated to throw
suspicion on [his] cause." Neither he nor his friends had ever
"sanctioned" such an act; they were wholly ignorant of it, and viewed it
"with indignation."[1051]
Mr. Joseph Eggleston, another of the grand jurors, now asked to be
excused because he had declared his belief of Burr's guilt; but he
admitted, in answer to Marshall's questions, that he could act justly in
the impending investigation. Burr said that he would not object to
Eggleston: "the industry which has been used through this country
[Virginia] to prejudice my cause, leaves me very little chance, indeed,
of an impartial jury." Eggleston's "candour ... in excepting to himself"
caused Burr to hope that he would "endeavour to be impartial." But let
Marshall decide--Burr would be "perfectly passive."[1052] The scrupulous
grand juror was retained.
John Randolph and Dr. William Foushee were then added to the grand jury
panel and Marshall appointed Randolph foreman.[1053] He promptly asked
to be excused because of his "strong prepossession." "Really," observed
Burr, "I am afraid we shall not be able to find any man without this
prepossession." Marshall again stated "that a man must not only have
formed but declared an opinion in order to excuse him from serving on
the jury." So Randolph was sworn as foreman, the oath administered to
all, and at last the grand jury was formed.[1054]
Marshall then instructed the jury, the substance of his charge being to
the same effect as his opinion in the case of Bollmann and Swartwout.
Burr asked the Chief Justice also to advise the men who were to decide
the question of his indictment "as to the admissability of certain
evidence" which he supposed Hay would lay before them. The District
Attorney objected to any favor being shown Burr, "who," he declared,
"stood on the same footing with every other man charged with crime."
For once Burr unleashed his deep but sternly repressed feeling: "Would
to God," he cried, his voice vibrant with emotion, "that I did stand on
the same ground with every other man. This is the first time [since the
military seizure] that I have been permitted to enjoy the rights of a
citizen. How have I been brought hither?" Marshall checked this
passionate outburst: it was not proper, he admonished both Hay and Burr,
to "go into these digressions."
His composure restored, Burr insisted that he should be accorded "the
same privileges and rights which belonged to every other citizen." He
would not now urge his objections to Marshall's opinion in the
Bollmann-Swartwout case;[1055] but he pointed out "the best informed
juryman might be ignorant of many points ... relating to testimony, ...
for instance, as to the article of papers," and he wished Marshall to
inform the jury on these matters of law.
A brief, sharp debate sprang up, during which Burr's counsel spoke of
the "host of prejudices raised against [their] client," taunted Hay with
his admission "that there was no man who had not formed an opinion," and
denounced "the activity of the Government."[1056] Upon Hay's pledging
himself that he would submit no testimony to the grand jury "without
notice being first given to Colonel Burr and his counsel," Marshall
adjourned the court that the attorneys might prepare for "further
discussion." The Government was not ready to present any testimony on
either the following day or on Monday because its principal witness,
General Wilkinson, had not arrived.
Hay now sent Jefferson his first report of the progress of the case.
Burr had steadily been making friends, and this irritated the District
Attorney more than the legal difficulties before him. "I am surprised,
and afflicted, when I see how much, and by how many, this man has been
patronised and supported." Hay assured Jefferson, however, that he would
"this day move to commit him for treason."[1057] Accordingly, he
announced in the presence of the grand jury that he would again ask the
court to imprison Burr on that accusation. In order, he said, that the
impropriety of mentioning the subject in their presence might be made
plain, Burr moved that the grand jury be withdrawn. Marshall sustained
the motion; and after the grand jury had retired, Hay formally moved the
court to order Burr's incarceration upon the charge of treason.[1058]
Burr's counsel, surprised and angered, loudly complained that no notice
had been given them. With a great show of generosity, Hay offered to
delay his motion until the next day. "Not a moment's postponement,"
shouted Botts, his fighting nature thoroughly aroused. Hay's
"extraordinary application," he said, was to place upon the court the
functions of the grand jury. Burr wanted no delay. His dearest wish was
to "satisfy his country ... and even his prosecutors, that he is
innocent." Was ever a man so pursued? He had been made the victim of
unparalleled military despotism; his legal rights had been ignored; his
person and papers unlawfully seized. The public had been excited to
anger. Through newspaper threats and "popular clamor" attempts had been
made to intimidate every officer of the court. Consider "the multitude
around us"--they must not be further infected "with the poison already
too plentifully infused."
Did Hay mean to "open the case more fully?" inquired Marshall. No,
answered Hay; but Wilkinson's arrival in Virginia might be announced
before he reached Richmond. Who could tell the effect on Burr of such
dread tidings? The culprit might escape; he must be safely held.[1059]
"The bets were against Burr that he would abscond, should W. come to
Richmond."[1060]
If Wilkinson is so important a witness, "why is he not here?" demanded
Wickham. Everybody knew that "a set of busy people ... are laboring to
ruin" Burr. "The press, from one end of the continent to the other, has
been enlisted ... to excite prejudices" against him. Let the case be
decided upon "the evidence of sworn witnesses" instead of "the floating
rumours of the day."
Did the Government's counsel wish that "the multitude around us should
be prejudiced by garbled evidences?" Wickham avowed that he could not
understand Hay's motives, but of this he was sure--that if, thereafter,
the Government wished to oppress any citizen, drag him by military force
over the country, prejudice the people against him, it would "pursue the
very same course which has now been taken against colonel Burr." The
prosecution admitted that it had not enough evidence to lay before the
grand jury, yet they asked to parade what they had before the court.
Why?--"to nourish and keep alive" the old prejudices now growing
stale.[1061]
Wirt answered at great length. He understood Wickham's purpose, he said.
It was to "divert the public attention from Aaron Burr," and "shift the
popular displeasure ... to another quarter." Wickham's speech was not
meant for the court, exclaimed Wirt, but for "the people who surround
us," and so, of course, Marshall would not heed it. Burr's counsel
"would convert this judicial inquiry into a political question ...
between Thomas Jefferson and Aaron Burr."
Not to be outdone by his gifted associate, Hay poured forth a stream of
words: "Why does he [Burr] turn from defending himself to attack the
administration?" he asked. He did not answer his own question, but
Edmund Randolph did: "An order has been given to treat colonel Burr as
an outlaw, and to burn and destroy him and his property." Jefferson,
when requested, had furnished the House information;--"would to God he
had stopped here, as an executive officer ought to have done!" But
instead he had also pronounced Burr guilty--an opinion calculated to
affect courts, juries, the people. Wickham detailed the treatment of
Burr, "the only man in the nation whose rights are not secure from
violation."[1062]
Burr himself closed this unexpected debate, so suddenly thrust upon his
counsel and himself. His speech is a model of that simple, perspicuous,
and condensed statement of which he was so perfectly the master. He
presented the law, and then, turning to Hay, said that two months
previous the District Attorney had declared that he had enough evidence
to justify the commitment, and surely he must have it now. Nearly half a
year had elapsed since Jefferson had "declared that there was a crime,"
and yet, even now, the Government was not ready. Nevertheless, the court
was again asked to imprison him for an alleged offense for which the
prosecution admitted it had not so much as the slight evidence required
to secure his indictment by the grand jury.
Were the Government and he "on equal terms?" Far from it. "The United
States [could] have compulsory process" to obtain affidavits against him
but he had "no such advantage." So the prosecution demanded his
imprisonment on _ex parte_ evidence which would be contradicted by his
own evidence if he could adduce it. Worse still! The Government
affidavits against him "are put into the newspapers, and they fall into
the hands of the grand jury." Meanwhile, he was helpless. And now the
opinion of the court was also to be added to the forces working to undo
him.
Wirt and Hay had charged his counsel "with declamation against the
government." Certainly nobody could attribute "declamation" to him; but,
said Burr, his restrained voice tense with suppressed emotion, "no
government is so high as to be beyond the reach of criticism"--that was
a fundamental principle of liberty. This was especially true when the
Government prosecuted a citizen, because of "the vast disproportion of
means which exists between it and the accused." And "if ever there was a
case which justified this vigilance, it is certainly the present one";
let Marshall consider the "uncommon activity" of the Administration.
Burr would, he said, "merely state a few" of the instances of
"harrassing, ... contrary to law" to which he had been subjected. His
"friends had been every where seized by the military authority," dragged
before "particular tribunals," and forced to give testimony; his papers
taken; orders to kill him issued; post-offices broken open and
robbed--"nothing seemed too extravagant to be forgiven by the amiable
morality of this government." Yet it was for milder conduct that
Americans rightly condemned "European despotisms."
The President was a great lawyer; surely "he ought to know what
constitutes war. Six months ago he proclaimed that there was a civil
war. And yet, for six months they have been hunting for it and cannot
find one spot where it existed. There was, to be sure, a most terrible
war in the newspapers; but no where else." He had been haled before the
court in Kentucky--and no proof; in Mississippi--and no proof. The
Spaniards actually invaded American territory--even then there was no
war.
Thus early the record itself discloses the dramatic, and, for Marshall,
perilous, conditions under which this peculiar trial was to be
conducted. The record makes clear, also, the plan of defense which Burr
and his counsel were forced to adopt. They must dull the edge of public
opinion sharpened to a biting keenness by Jefferson. They must appeal to
the people's hatred of oppression, fear of military rule, love of
justice. To do this they must attack, attack, always attack.
They must also utilize every technical weapon of the law. At another
time and place they could have waived, to Burr's advantage, all legal
rights, insisted upon his indictment, and gone to trial, relying only
upon the evidence. But not in the Virginia of 1807, with the mob spirit
striving to overawe jury and court, and ready to break out in violent
action--not at the moment when the reign of Thomas Jefferson had reached
the highest degree of popular idolatry.
Just as Hay, Wirt, and MacRae generally spoke to the spectators far more
than to the Bench, so did Wickham, Randolph, Botts, and Martin.[1063]
Both sides so addressed the audience that their hearers were able to
repeat to the thousands who could not get into the hall what had been
said by the advocates. From the very first the celebrated trial of
Aaron Burr was a contest for the momentary favor of public opinion; and,
in addition, on the part of Burr, an invoking of the law to shield him
from that popular wrath which the best efforts of his defenders could
not wholly appease.
Marshall faced a problem of uncommon difficulty. It was no small
matter to come between the populace and its prey--no light adventure
to brave the vengeance of Thomas Jefferson. Not only his public
repute[1064]--perhaps even his personal safety[1065] and his official
life[1066]--but also the now increasing influence and prestige of the
National Judiciary were in peril. However, he must do justice no matter
what befell--he must, at all hazards, pronounce the law truly and
enforce it bravely, but with elastic method. He must be not only a just,
but also an understanding, judge.
When court opened next morning, Marshall was ready with a written
opinion. Concisely he stated the questions to be decided: Had the court
the power to commit Burr, and, if so, ought the circumstances to
restrain the exercise of it? Neither side had made the first point, and
Marshall mentioned it only "to show that it [had] been considered."
Briefly he demonstrated that the court was clothed with authority to
grant Hay's motion. Should that power, then, be exerted? Marshall
thought that it should. The Government had the right to ask Burr's
incarceration at any time, and it was the duty of the court to hear such
a motion.
Thus far spoke Marshall the judge. In the closing sentences the voice of
the politician was heard: "The court perceives and regrets that the
result of this motion may be publications unfavourable to the justice,
and to the right decision of the case"; but this must be remedied "by
other means than by refusing to hear the motion." Every honest and
intelligent man extremely deplored "any attempt ... to prejudice the
public judgment, and to try any person," not by the law and the
evidence, but "by public feelings which may be and often are
artificially excited against the innocent, as well as the guilty, ... a
practice not less dangerous than it is criminal." Nevertheless he could
not "suppress motions, which either party may have a legal right to
make." So, if Hay persisted, he might "open his testimony."[1067]
While Marshall, in Richmond, was reading this opinion, Jefferson, in
Washington, was writing directions to Hay. He was furious at "the
criminal and voluntary retirement" of Giles and Nicholas from the grand
jury "with the permission of the court." The opening of the prosecution
had certainly begun "under very inauspicious circumstances." One thing
was clear: "It becomes our duty to provide that full testimony shall be
laid before the Legislature, and through them the public."
If the grand jury should indict Burr, then Hay must furnish Jefferson
with all the evidence, "taken as verbatim as possible." Should Burr not
be indicted, and no trial held and no witnesses questioned in court,
then Hay must "have every man privately examined by way of affidavit,"
and send Jefferson "the whole testimony" in that form. "This should be
done before they receive their compensation, that they may not evade
examination. Go into any expense necessary for this purpose,[1068] &
meet it from the funds provided to the Attorney general for the other
expenses."[1069]
Marshall's decision perplexed Hay. It interfered with his campaign of
publicity. If only Marshall had denied his motion, how effectively could
that incident have been used on public sentiment! But now the Republican
press could not exclaim against Marshall's "leniency" to "traitors" as
it had done. The people were deprived of fresh fuel for their patriotic
indignation. Jefferson would be at a loss for a new pretext to arouse
them against the encroachments of the courts upon their "liberties."
Hay strove to retrieve the Government from this disheartening situation.
He was "struck," he said, with Marshall's reference to "publications."
To avoid such newspaper notoriety, he would try to arrange with Burr's
counsel for the prisoner's appearance under additional bail, thus
avoiding insistence upon the Government's request for the imprisonment
of the accused. Would Marshall adjourn court that this amicable
arrangement might be brought about? Marshall would and did.
But next day found Hay unrelieved; Burr's counsel had refused, in
writing, to furnish a single dollar of additional bail. To his intense
regret, Hay lamented that he was thus forced to examine his witnesses.
Driven to this unpleasant duty, he would follow the "chronological
order--first the depositions of the witnesses who were absent, and
afterwards those who were present."[1070]
The alert Wickham demanded "strict legal order." The Government must
establish two points: the perpetration of an overt act, and "that
colonel Burr was concerned in it."[1071] Hay floundered--there was one
great plot, he said, the two parts of it "intimately blended"; the
projected attack on Spain and the plot to divide the Union were
inseparable--he must have a free hand if he were to prove this wedded
iniquity. Was Burr afraid to trust the court?
Far from it, cried Wickham, "but we do fear to prejudicate the mind of
the grand jury.... All propriety and decorum have been set at naught;
every idle tale which is set afloat has been eagerly caught at. The
people here are interested by them; and they circulate all over the
country."[1072] Marshall interrupted: "No evidence certainly has any
bearing ... unless the overt act be proved." Hay might, however, "pursue
his own course."
A long altercation followed. Botts made an extended speech, in the
course of which he discredited the Government's witnesses before they
were introduced. They were from all over the country, he said, their
"names, faces and characters, are alike unknown to colonel Burr." To
what were they to testify? Burr did not know--could not possibly
ascertain. "His character has long been upon public torture; and
wherever that happens ... the impulses to false testimony are numerous.
Sometimes men emerge from the sinks of vice and obscurity into patronage
and distinction by circulating interesting tales, as all those of the
marvelous kind are. Others, from expectation of office and reward,
volunteer; while timidity, in a third class, seeks to guard against the
apprehended danger, by magnifying trifling stories of alarm.... When
they are afterwards called to give testimony, perjury will not appal
them, if it be necessary to save their reputations." Therefore, reasoned
Botts--and most justly--strict rules of evidence were necessary.[1073]
Hay insisted that Wilkinson's affidavit demonstrated Burr's intentions.
That "goes for nothing," said Marshall, "if there was no other evidence
to prove the overt act." Therefore, "no part of it [was] admissible at
this time."[1074] Thrice Marshall patiently reminded Government counsel
that they charged an overt act of treason and must prove it.[1075]
Hay called Peter Taylor, Blennerhassett's former gardener, and Jacob
Allbright, once a laborer on the eccentric Irishman's now famous island.
Both were illiterate and in utter terror of the Government. Allbright
was a Dutchman who spoke English poorly; Taylor was an Englishman; and
they told stories equally fantastic. Taylor related that Mrs.
Blennerhassett had sent him to Kentucky with a letter to Burr warning
him not to return to the island; that Burr was surprised at the people's
hostility; that Blennerhassett, who was also in Kentucky, confided they
were going to take Mexico and make Burr king, and Theodosia queen when
her father died; also that Burr, Blennerhassett, and their friends had
bought "eight hundred thousand acres of land" and "wanted young men to
settle it," and that any of these who should prove refractory, he
[Blennerhassett] said, "by God, ... I will stab"; that Blennerhassett
had also said it would be a fine thing to divide the Union, but Burr and
himself could not do it alone.
Taylor further testified that Blennerhassett once sent him with a letter
to a Dr. Bennett, who lived in Ohio, proposing to buy arms in his charge
belonging to the United States--if Bennett could not sell, he was to
tell where they were, and Blennerhassett "would steal them away in the
night"; that his employer charged him "to get [the letter] back and burn
it, for it contained high treason"; and that the faithful Taylor had
done this in Bennett's presence.
Taylor narrated the scene on the island when Blennerhassett and thirty
men in four boats fled in the night: some of the men had guns and there
was some powder and lead.[1076]
Jacob Allbright told a tale still more marvelous. Soon after his
employment, Mrs. Blennerhassett had come to this dull and ignorant
laborer, while he was working on a kiln for drying corn, and confided to
him that Burr and her husband "were going to lay in provisions for an
army for a year"; that Blennerhassett himself had asked Allbright to
join the expedition which was going "to settle a new country." Two men
whom the Dutch laborer met in the woods hunting had revealed to him that
they were "Burr's men," and had disclosed that "they were going to take
a silver mine from the Spanish"; that when the party was ready to leave
the island, General Tupper of Ohio had "laid his hands upon
Blennerhassett and said, 'your body is in my hands in the name of the
commonwealth,'" whereupon "seven or eight muskets [were] levelled" at
the General; that Tupper then observed he hoped they would not shoot,
and one of the desperadoes replied, "I'd as lieve as not"; and that
Tupper then "changed his speech," wished them "to escape safe," and bade
them Godspeed.
Allbright and Taylor were two of the hundreds to whom the Government's
printed questions had been previously put by agents of the
Administration. In his answers to these, Allbright had said that the
muskets were pointed at Tupper as a joke.[1077] Both Taylor and he swore
that Burr was not on the island when Blennerhassett's men assembled
there and stealthily departed in hasty flight.
To the reading of the deposition of Jacob Dunbaugh, Burr's counsel
strenuously objected. It was not shown that Dunbaugh himself could not
be produced; the certification of the justice of the peace, before whom
the deposition was taken, was defective. For the remainder of the day
the opposing lawyers wrangled over these points. Marshall adjourned
court and "took time to consider the subject till the next day"; when,
in a long and painfully technical opinion, he ruled that Dunbaugh's
affidavit could not be admitted because it was not properly
authenticated.[1078]
May 28, when the court again convened, was made notable by an event
other than the reading of the unnecessarily long opinion which Marshall
had written during the night: the crimson-faced, bellicose superman of
the law, Luther Martin, appeared as one of Burr's counsel.[1079] The
great lawyer had formed an ardent admiration and warm friendship for
Burr during the trial of the Chase impeachment,[1080] and this had been
intensified when he met Theodosia, with whom he became infatuated.[1081]
He had voluntarily come to his friend's assistance, and soon threw
himself into the defense of Burr with all the passion of his tempestuous
nature and all the power and learning of his phenomenal intellect.
[Illustration: LUTHER MARTIN]
After vexatious contendings by counsel as to whether Burr should give
additional bail,[1082] Marshall declared that "as very improper effects
on the public mind [might] be produced," he wished that no opinion would
be required of him previous to the action of the grand jury; and
that the "appearance of colonel Burr could be secured without ...
proceeding in this inquiry." Burr denied the right of the court to hold
him on bail, but said that if Marshall was "embarrassed," he voluntarily
would furnish additional bail, "provided it should be understood that no
opinion on the question even of probable cause was pronounced by the
court."[1083] Marshall agreed; and Burr with four sureties, among whom
was Luther Martin, gave bond for ten thousand dollars more.[1084]
Day after day, court, grand jury, counsel, and spectators awaited the
coming of Wilkinson. The Government refused to present any testimony to
the grand jury until he arrived, although scores of witnesses were
present. Andrew Jackson was very much in town, as we have seen. So was
Commodore Truxtun. And "General" William Eaton was also on hand,
spending his time, when court was not in session, in the bar-rooms of
Richmond.
Wearing a "tremendous hat," clad in gay colored coat and trousers, with
a flaming Turkish belt around his waist, Eaton was already beginning to
weaken the local hatred of Burr by his loud blustering against the
quiet, courteous, dignified prisoner.[1085] Also, at gambling-tables,
and by bets that Burr would be convicted, the African hero was making
free with the ten thousand dollars paid him by the Government soon after
he made the bloodcurdling affidavit[1086] with which Jefferson had so
startled Congress and the country.
While proceedings lagged, Marshall enjoyed the dinners and parties that,
more than ever, were given by Richmond society. On one of these
occasions that eminent and ardent Republican jurist, St. George Tucker,
was present, and between him and Marshall an animated discussion grew
out of the charge that Burr had plotted to cause the secession of the
Western States; it was a forecast of the tremendous debate that was to
end only at Appomattox. "Judge Tucker, though a violent Democrat,"
records Blennerhassett, "seriously contended ... with Judge Marshall ...
that any State in the Union is at any time competent to recede from the
same, though Marshall strongly opposed this doctrine."[1087]
Hay wrote Jefferson of the slow progress of the case, and the President
"hastened" to instruct his district attorney: If the grand jury should
refuse to indict Burr, Hay must not deliver the pardon to Bollmann;
otherwise, "his evidence is deemed entirely essential, & ... his pardon
is to be produced before he goes to the book." Jefferson had become more
severe as he thought of Bollmann, and now actually directed Hay to show,
in open court, to this new object of Presidential displeasure, the
"sacredly confidential" statement given Jefferson under pledge of the
latter's "word of honor" that it should never leave his hand. Hay was
directed to ask Bollmann whether "it was not his handwriting."[1088]
With the same ink on his pen the President wrote his son-in-law that he
had heard only of the first day of the trial, but was convinced that
Marshall meant to do all he could for Burr. Marshall's partiality
showed, insisted Jefferson, "the original error of establishing a
judiciary independent of the nation, and which, from the citadel of the
law can turn it's guns on those they were meant to defend, & controul &
fashion their proceedings to it's own will."[1089]
Hay quickly answered Jefferson: The trial had "indeed commenced under
inauspicious circumstances," and doubtless these would continue to be
unfavorable. Nobody could predict the outcome. Hay was so exhausted and
in such a state of mind that he could not describe "the very
extraordinary occurrences in this very extraordinary examination."
Burr's "partizans" were gloating over the failure of Wilkinson to
arrive. Bollmann would neither accept nor reject the pardon; he was "as
unprincipled as his leader." Marshall's refusal to admit Dunbaugh's
affidavit was plainly illegal--"his eyes [were] almost closed" to
justice.[1090]
Jefferson now showered Hay with orders. The reference in argument to
Marshall's opinion in Marbury _vs._ Madison greatly angered him:
"Stop ... citing that case as authority, and have it denied to be law,"
he directed Hay, and gave him the arguments to be used against it. An
entire letter is devoted to this one subject: "I have long wished for a
proper occasion to have the gratuitous opinion in Marbury v. Madison
brought before the public, & denounced as not law; & I think the present
a fortunate one, because it occupies such a place in the public
attention."
Hay was openly to declare that the President rejected Marshall's opinion
in that case as having been "given extra-judicially & against law," and
that the reverse of it would be Jefferson's "rule of action." If
necessary, Hay might state that the President himself had said
this.[1091]
Back and forth went letters from Hay to Jefferson and from Jefferson to
Hay,[1092] the one asking for instructions and the other eagerly
supplying them. To others, however, the President explained that he
could take no part in any judicial proceeding, since to do so would
subject him to "just censure."[1093]
In spite of the abundance of Government witnesses available, the
prosecution refused to go on until the redoubtable savior of his country
had arrived from New Orleans. Twice the grand jury had to be dismissed
for several days, in order, merrily wrote Washington Irving, "that they
might go home, see their wives, get their clothes washed, and flog their
negroes."[1094] A crowd of men ready to testify was held. The swarms of
spectators waited with angry impatience. "If the great hero of the South
does not arrive, it is a chance if we have any trial this term,"[1095]
commented Irving.
During this period of inaction and suspense, suddenly arose one of the
most important and exciting questions of the entire trial. On June 9,
while counsel and court were aimlessly discussing Wilkinson's journey to
Richmond, Burr arose and said that he had a "proposition to submit" to
the court. The President in his Message to Congress had made mention of
the letter and other papers dated October 21, which he had received from
Wilkinson. It had now become material that this letter should be
produced in court.
Moreover, since the Government had "attempted to infer certain
intentions on [his] part, from certain transactions," such as his flight
from Mississippi, it had become necessary to prove the conditions that
forced him to attempt that escape. Vital among these were orders of the
Government to the army and navy "to destroy" Burr's "person and
property." He had seen these orders in print,[1096] and an officer had
assured him that such instructions had actually been issued. It was
indispensable that this be established. The Secretary of the Navy had
refused to allow him or his counsel to inspect these orders. "Hence,"
maintained Burr, "I feel it necessary ... to call upon [the court] to
issue a subpoena to the President of the United States, with a clause,
requiring him to produce certain papers; or in other words, to issue the
subpoena _duces tecum_." If Hay would agree to produce these
documents, the motion would not be made.[1097]
Hay was sadly confused. He would try to get all the papers wanted if
Marshall would say that they were material. How, asked Marshall, could
the court decide that question without inspecting the papers? "Why ...
issue a subpoena to the President?" inquired Hay. Because, responded
Marshall, "in case of a refusal to send the papers, the officer himself
may be present to show cause. This subpoena is issued only where fears
of this sort are entertained."
Counsel on both sides became angry. Hay denied the authority of the
court to issue such a writ. Marshall called for argument, because, he
said, "I am not prepared to give an opinion on this point."[1098] Thus
arose the bitter forensic struggle that preceded Marshall's historic
order to Jefferson to come into court with the papers demanded, or to
show cause why he should not do so.
Hay instantly dispatched the news to Jefferson; he hoped the papers
would be "forwarded without delay," because "detention of them will
afford [Burr] pretext for clamor." Besides, "L. Martin has been here a
long time, perfectly inactive"; he was yearning to attack Jefferson and
this would "furnish a topic."[1099]
The President responded with dignified caution: "Reserving the necessary
right of the President of the U S to decide, independently of all other
authority, what papers, coming to him as President, the public interests
permit to be communicated, & to whom, I assure you of my readiness under
that restriction, voluntarily to furnish on all occasions, whatever the
purposes of justice may require." He had given the Wilkinson letter, he
said, to the Attorney-General, together with all other documents
relating to Burr, and had directed the Secretary of War to search the
files so that he (Jefferson) could "judge what can & ought to be done"
about sending any order of the Department to Richmond.[1100]
When Marshall opened court on June 10, Burr made affidavit that the
letters and orders might be material to his defense. Hay announced that
he had written Jefferson to send the desired papers and expected to
receive them within five days. They could not, however, be material, and
he did not wish to discuss them. Martin insisted that the papers be
produced. Wickham asked what Hay was trying to do--probably trying to
gain time to send to Washington for instructions as to how the
prosecution should now act.
Was not "an accused man ... to obtain witnesses in his behalf?" Never
had the denial of such a right been heard of "since the declaration of
American Independence." The despotic treatment of Burr called aloud not
only for the court's protection of the persecuted man, but "to the
protection of every citizen in the country as well."[1101] So it seemed
to that discerning fledgling author, Washington Irving. "I am very much
mistaken," he wrote, "if the most underhand ... measures have not been
observed toward him. He, however, retains his serenity."[1102]
Luther Martin now took the lead: Was Jefferson "a kind of sovereign?"
No! "He is no more than a servant of the people." Yet who could tell
what he would do? In this case his Cabinet members, "under presidential
influence," had refused copies of official orders. In another case "the
officers of the government screened themselves ... under the sanction of
the president's name."[1103] The same might be done again; for this
reason Burr applied "directly to the president." The choleric legal
giant from Maryland could no longer restrain his wrath: "This is a
peculiar case," he shouted. "The president has undertaken to prejudice
my client by declaring, that 'of his guilt there can be no doubt.' He
has assumed to himself the knowledge of the Supreme Being himself, and
pretended to search the heart of my highly respected friend. He has
proclaimed him a traitor in the face of that country, which has rewarded
him. He has let slip the dogs of war, the hell-hounds of persecution, to
hunt down my friend."
"And would this president of the United States, who has raised all this
absurd clamor, pretend to keep back the papers which are wanted for this
trial, where life itself is at stake?" That was a denial of "a sacred
principle. Whoever withholds, wilfully, information that would save the
life of a person, charged with a capital offence, is substantially a
murderer, and so recorded in the register of heaven." Did Jefferson want
Burr convicted? Impossible thought! "Would the president of the United
States give his enemies ... the proud opportunity of saying that colonel
Burr is the victim of anger, jealousy and hatred?" Interspersed with
these outbursts of vitriolic eloquence, Martin cited legal authorities.
Never, since the days of Patrick Henry, had Richmond heard such a
defiance of power.[1104]
Alexander MacRae did his best to break the force of Martin's impetuous
attack. The present question was "whether this court has the right to
issue a subpoena _duces tecum_, addressed to the president of the
United States." MacRae admitted that "a subpoena may issue against him
as well as against any other man." Still, the President was not bound to
disclose "confidential communications." Had not Marshall himself so
ruled on that point in the matter of Attorney-General Lincoln at the
hearing in Marbury _vs._ Madison?[1105]
Botts came into the fray with his keen-edged sarcasm. Hay and Wirt and
MacRae had "reprobated" the action of Chase when, in the trial of
Cooper, that judge had refused to issue the writ now asked for; yet now
they relied on that very precedent. "I congratulate them upon their
dereliction of the old democratic opinions."[1106]
Wirt argued long and brilliantly. What were the "orders," military and
naval, which had been described so thrillingly? Merely to "apprehend
Aaron Burr, and _if ... necessary ... to destroy his boats_." Even the
"sanguinary and despotic" orders depicted by Burr and his counsel would
have been a "great and glorious virtue" if Burr "was aiming a blow at
the vitals of our government and liberty." Martin's "fervid language"
had not been inspired merely by devotion to "his honourable friend,"
said Wirt. It was the continued pursuit of a "policy settled ... before
Mr. Martin came to Richmond." Burr's counsel, on the slightest pretext,
"flew off at a tangent ... to launch into declamations against the
government, exhibiting the prisoner continually as a persecuted patriot:
a Russell or a Sidney, bleeding under the scourge of a despot, and dying
for virtue's sake!"
He wished to know "what gentlemen can intend, expect, or hope, from
these perpetual philippics against the government? Do they flatter
themselves that this court feel political prejudices which will supply
the place of argument and of innocence on the part of the prisoner?
Their conduct amounts to an insinuation of the sort." What would a
foreigner "infer from hearing ... the judiciary told that the
administration are 'blood hounds,' hunting this man with a keen and
savage thirst for blood," and witnessing the court receive this language
"with all complacency?" Surely no conclusion could be made very
"honourable to the court. It would only be inferred, while they are thus
suffered to roll and luxuriate in these gross invectives against the
administration, that they are furnishing the joys of a Mahomitan
paradise to the court as well as to their client."[1107]
Here was as bold a challenge to Marshall as ever Erskine flung in the
face of judicial arrogance; and it had effect. Before adjourning court,
Marshall addressed counsel and auditors: he had not interfered with
assertions of counsel, made "in the heat of debate," although he had not
approved of them. But now that Wirt had made "a pointed appeal" to the
court, and the Judges "had been called upon to support their own
dignity, by preventing the government from being abused," he would
express his opinion. "Gentlemen on both sides had acted improperly in
the style and spirit of their remarks; they had been to blame in
endeavoring to excite the prejudices of the people; and had repeatedly
accused each other of doing what they forget they have done themselves."
Marshall therefore "expressed a wish that counsel ... would confine
themselves on every occasion to the point really before the court; that
their own good sense and regard for their characters required them to
follow such a course." He "hoped that they would not hereafter deviate
from it."[1108]
His gentle admonition was scarcely heeded by the enraged lawyers.
Wickham's very "tone of voice," exclaimed Hay, was "calculated to excite
irritation, and intended for the multitude." Of course, Jefferson
_could_ be subpoenaed as a witness; that was in the discretion of the
court. But Marshall ought not to grant the writ unless justice required
it. The letter might be "of a private nature"; if so, it ought not to be
produced. Martin's statement that Burr had a right to resist was a
"monstrous ... doctrine which would have been abhorred even in the most
turbulent period of the French revolution, by the jacobins of 1794!"
Suppose, said Hay, that Jefferson had been "misled," and that "Burr was
peaceably engaged in the project of settling his Washita lands!" Did
that give him "a right to resist the president's orders to stop him?"
Never! "This would be treason." The assertion of the right to disobey
the President was the offspring of "a new-born zeal of some of the
gentlemen, in defence of the rights of man."[1109]
Why await the arrival of Wilkinson? asked Edmund Randolph. What was
expected of "that great accomplisher of all things?" Apparently this:
"He is to support ... the _sing-song_ and the ballads of treason and
conspiracy, which we have heard delivered from one extremity of the
continent to the other. The funeral pile of the prosecution is already
prepared by the hands of the public attorney, and nothing is wanting to
kindle the fatal blaze but the torch of James Wilkinson," who "is to
officiate as the high priest of this human sacrifice.... Wilkinson will
do many things rather than disappoint the wonder-seizing appetite of
America, which for months together he has been gratifying by the most
miraculous actions." If Burr were found guilty, Wilkinson would stand
acquitted; if not, then "the character, the reputation, every thing ...
will be gone for ever from general Wilkinson."
Randolph's speech was a masterpiece of invective. "The President
testifies, that Wilkinson has testified to him fully against Burr; then
let that letter be produced. The President's declaration of Burr's guilt
is unconstitutional." It was not the business of the President "to give
opinions concerning the guilt or innocence of any person." Directly
addressing Marshall, Randolph continued: "With respect to your
exhortation," that Burr's appeal was to the court alone, "we demand
justice only, and if you cannot exorcise the demon of prejudice, you can
chain him down to law and reason, and then we shall have nothing to
fear."[1110]
The audacious Martin respected Marshall's appeal to counsel even less
than Hay and Randolph had done. The prosecution had objected to the
production of Wilkinson's mysterious letter to Jefferson because it
might contain confidential statements. "What, sir," he shouted, "shall
the cabinet of the United States be converted into a lion's mouth of
Venice, or into a _repertorium_ of the inquisition? Shall envy, hatred,
and all the malignant passions pour their poison into that cabinet
against the character and life of a fellow citizen, and yet that cabinet
not be examined in vindication of that character and to protect that
life?"
Genuine fury shook Martin. "Is the life of a man, lately in high public
esteem ... to be endangered for the sake of punctilio to the president?"
Obey illegal orders! "If every order, however arbitrary and unjust, is
to be obeyed, we are slaves as much as the inhabitants of Turkey. If the
presidential edicts are to be the supreme law, and the officers of the
government have but to register them, as formerly in France, ... we are
as subject to despotism, as ... the subjects of the former '_Grands
Monarques_.'"[1111]
Now occurred as strange a mingling of acrimony and learning as ever
enlightened and enlivened a court. Burr's counsel demanded that Marshall
deliver a supplementary charge to the grand jury. Marshall was
magnificently cautious. He would, he said, instruct the jury as confused
questions arose. On further reflection and argument--Marshall's dearly
beloved argument--he wrote additional instructions,[1112] but would not
at present announce them. There must be an actual "levying of war"; the
overt act must be established; no matter what suspicions were
entertained, what plans had been formed, what enterprises had been
projected, there could be "no treason without an overt act."[1113]
In such would-and-would-not fashion Marshall contrived to waive this
issue for the time being. Then he delivered that opinion which proved
his courage, divided Republicans, stirred all America, and furnished a
theme of disputation that remains fresh to the present day. He decided
to grant Burr's demand that Jefferson be called into court with the
papers asked for.
The purpose of the motion was, said Marshall, to produce copies of the
army and navy orders for the seizure of Burr, the original of
Wilkinson's letter to Jefferson, and the President's answer. To
accomplish this object legally, Burr had applied for the well-known
subpoena _duces tecum_ directed to the President of the United States.
The objection that until the grand jury had indicted Burr, no process
could issue to aid him to obtain testimony, was, Marshall would not say
new elsewhere, but certainly it had never before been heard of in
Virginia. "So far back as any knowledge of our jurisprudence is
possessed, the uniform practice of this country [Virginia] has been, to
permit any individual ... charged with any crime, to prepare for his
defence and to obtain the process of the court, for the purpose of
enabling him so to do." An accused person must expect indictment, and
has a right to compel the attendance of witnesses to meet it. It was
perhaps his duty to exercise that right: "The genius and character of
our laws and usages are friendly, not to condemnation at all events, but
to a fair and impartial trial."
In all criminal prosecutions the Constitution, Marshall pointed out,
guarantees to the prisoner "a speedy and public trial, and to compulsory
process for obtaining witnesses in his favour." The courts must hold
this "sacred," must construe it "to be something more than a dead
letter." Moreover, the act of Congress undoubtedly contemplated "that,
in all capital cases, the accused shall be entitled to process before
indictment found." Thus "immemorial usage," the language of the
Constitution, the National statute, all combined to give "any person,
charged with a crime in the courts of the United States, ... a right,
before, as well as after indictment, to the process of the court to
compel the attendance of his witnesses."
But could "a subpoena _duces tecum_ be directed to the president of
the United States?" If it could, ought it to be "in this case"? Neither
in the Constitution nor in an act of Congress is there any exception
whatever to the right given all persons charged with crime to compel the
attendance of witnesses. "No person could claim an exemption." True, in
Great Britain it was considered "to be incompatible with his dignity"
for the King "to appear under the process of the court." But did this
apply to the President of the United States? Marshall stated the many
differences between the status of the British King and that of the
American President.
The only possible ground for exempting the President "from the general
provisions of the constitution" would be, of course, that "his
duties ... demand his whole time for national objects. But," continued
Marshall, "it is apparent, that this demand is not unremitting"--a
statement at which Jefferson took particular offense.[1114] Should the
President be so occupied when his presence in court is required, "it
would be sworn on the return of the subpoena, and would rather
constitute a reason for not obeying the process of the court, than a
reason against its being issued."
To be sure, any court would "much more cheerfully" dispense with the
duty of issuing a subpoena to the President than to perform that duty;
"but, if it be a duty, the court can have no choice" but to perform it.
If, "as is admitted by counsel for the United States," the President may
be "summoned to give his personal attendance to testify," was that power
nullified because "his testimony depends on a paper in his possession,
not on facts which have come to his knowledge otherwise than by
writing?" Such a distinction is "too much attenuated to be countenanced
in the tribunals of a just and humane nation."[1115] The character of
the paper desired as evidence, and not "the character of the person who
holds it," determines "the propriety of introducing any paper ... as
testimony."
It followed, then, that "a subpoena _duces tecum_ may issue to any
person to whom an ordinary subpoena may issue." The only difference
between the two writs is that one requires only the attendance of the
witness, while the other directs also "bringing with him a paper in his
custody."
In many States the process of subpoena _duces tecum_ issues of course,
and without any action of the judge. In Virginia, however, leave of the
court is required; but "no case exists ... in which the motion ... has
been denied or in which it has been opposed," when "founded on an
affidavit."
The Chief Justice declared that he would not issue the writ if it were
apparent that the object of the accused in applying for it was "not
really in his own defence, but for purposes which the court ought to
discountenance. The court would not lend its aid to motions obviously
designed to manifest disrespect to the government; but the court has no
right to refuse its aid to motions for papers to which the accused may
be entitled, and which may be material in his defence." If this was true
in the matter of Burr's application, "would it not be a blot in the
page, which records the judicial proceedings of this country, if, in a
case of such serious import as this, the accused should be denied the
use" of papers on which his life might depend?
Marshall carefully examined a case cited by the Government[1116] in
which Justice Paterson had presided, at the same time paying to the
memory of the deceased jurist a tribute of esteem and affection. He
answered with tedious particularity the objections to the production of
Wilkinson's letter to Jefferson, and then referred to the "disrespect"
which the Government counsel had asserted would be shown to the
President if Marshall should order him to appear in court with the
letters and orders.
"This court feels many, perhaps peculiar motives, for manifesting as
guarded respect for the chief magistrate of the Union as is compatible
with its official duties." But, declared Marshall, "to go beyond
these ... would deserve some other appellation than the term respect."
If the prosecution should end, "_as is expected_" by the Government,
those who withheld from Burr any paper necessary to his defense would,
of course, bitterly regret their conduct. "I will not say, that this
circumstance would ... tarnish the reputation of the Government; but I
will say, that it would justly tarnish the reputation of the court,
which had given its sanction to its being withheld."
With all that impressiveness of voice and manner which, on occasion, so
transformed Marshall, he exclaimed: "Might I be permitted to utter one
sentiment, with respect to myself, it would be to deplore, most
earnestly, the occasion which should compel me to look back on any part
of my official conduct with so much self-reproach as I should feel,
could I declare, on the information now possessed, that the accused is
not entitled to the letter in question, if it should be really important
to him."
Let a subpoena _duces tecum_, therefore ruled the Chief Justice, be
issued, directed to Thomas Jefferson, President of the United
States.[1117]
Nothing that Marshall had before said or done so highly excited counsel
for the prosecution as his assertion that they "expected" Burr's
conviction. The auditors were almost as deeply stirred. Considering the
peculiarly mild nature of the man and his habitual self-restraint,
Marshall's language was a pointed rebuke, not only to the Government's
attorneys, but to the Administration itself. Even Marshall's friends
thought that he had gone too far.
Instantly MacRae was on his feet. He resented Marshall's phrase, and
denied that the Government or its counsel "wished" the conviction of
Burr--such a desire was "completely abhorrent to [their] feelings."
MacRae hoped that Marshall did not express such an opinion deliberately,
but that it had "accidentally fallen from the pen of [his] honor."
Marshall answered that he did not intend to charge the Administration or
its attorneys with a desire to convict Burr "whether he was guilty or
innocent"; but, he added dryly, "gentlemen had so often, and so
uniformly asserted, that colonel Burr was guilty, and they had so often
repeated it before the testimony was perceived, on which that guilt
could alone be substantiated, that it appeared to him probable, that
they were not indifferent on the subject."[1118]
Hay, in his report to Jefferson, gave more space to this incident than
he did to all other features of the case. He told the President that
Marshall had issued the dreaded process and then quoted the offensive
sentence. "This expression," he relates, "produced a very strong & very
general sensation. The friends of the Judge, both personal & political,
Condemned it. Alex^{r.} M^{c}Rae rose as soon as he had finished, and in
terms mild yet determined, demanded an explanation of it. The Judge
actually blushed." And, triumphantly continues the District Attorney,
"he did attempt an explanation.... I observed, with an indifference
which was not assumed, that I had endeavored to do my duty, according to
my own judgment and feelings, that I regretted nothing that I had said
or done, that I should pursue the same Course throughout, and that it
was a truth, that I cared not what _any man_ said or thought about it."
Marshall himself was perturbed. "About three hours afterwards," Hay
tells Jefferson, "when the Crowd was thinned, the Judge acknowledged the
impropriety of the expression objected to, & informed us from the Bench
that he had erased it." The Chief Justice even apologized to the
wrathful Hay: "After he had adjourned the Court, he descended from the
Bench, and told me that he regretted the remark, and then by way of
apology said, that he had been so pressed for time, that he had never
read the opinion, after he had written it." Hay loftily adds: "An
observation from me that I did not perceive any connection between my
declarations & his remark, or how the former could regularly be the
Cause of the latter, closed the Conversation."[1119]
Hay despondently goes on to say that "there never was such a trial from
the beginning of the world to this day." And what should he do about
Bollmann? That wretch "resolutely refuses his pardon & is determined not
to utter a word, if he can avoid it. The pardon lies on the clerks
table. The Court are to decide whether he is really pardoned or not.
Martin says he is not pardoned. Such are the questions, with which we
are worried. If the Judge says that he is not pardoned, I will take the
pardon back. What shall I then do with him?"
The immediate effect of Marshall's ruling was the one Jefferson most
dreaded. For the first time, most Republicans approved of the opinion of
John Marshall. In the fanatical politics of the time there was enough of
honest adherence to the American ideal, that all men are equal in the
eyes of the law, to justify the calling of a President, even Thomas
Jefferson, before a court of justice.
Such a militant Republican and devotee of Jefferson as Thomas Ritchie,
editor of the Richmond _Enquirer_, the party organ in Virginia, did not
criticize Marshall, nor did a single adverse comment on Marshall appear
in that paper during the remainder of the trial. Not till the final
verdict was rendered did Ritchie condemn him.[1120]
Before he learned of Marshall's ruling, Jefferson had once more written
the District Attorney giving him well-stated arguments against the
issuance of the dreaded subpoena.[1121] When he did receive the
doleful tidings, Jefferson's anger blazed--but this time chiefly at
Luther Martin, who was, he wrote, an "unprincipled & impudent federal
bull-dog." But there was a way open to dispose of him: Martin had known
all about Burr's criminal enterprise. Jefferson had received a letter
from Baltimore stating that this had been believed generally in that
city "for more than a twelve-month." Let Hay subpoena as a witness the
writer of this letter--one Greybell.
Something must be done to "put down" the troublesome "bull-dog": "Shall
L M be summoned as a witness against Burr?" Or "shall we move to commit
L M as _particeps criminis_ with Burr? Greybell will fix upon him
misprision of treason at least ... and add another proof that the most
clamorous defenders of Burr are all his accomplices."
As for Bollmann! "If [he] finally rejects his pardon, & the Judge
decides it to have no effect ... move to commit him immediately for
treason or misdemeanor."[1122] But Bollmann, in open court, had refused
Jefferson's pardon six days before the President's vindictively
emotional letter was written.
After Marshall delivered his opinion on the question of the subpoena
to Jefferson, Burr insisted, in an argument as convincing as it was
brief, that the Chief Justice should now deliver the supplementary
charge to the grand jury as to what evidence it could legally consider.
Marshall announced that he would do so on the following Monday.[1123]
Several witnesses for the Government were sworn, among them Commodore
Thomas Truxtun, Commodore Stephen Decatur, and "General" William Eaton.
When Dr. Erich Bollmann was called to the book, Hay stopped the
administration of the oath. Bollmann had told the Government all about
Burr's "plans, designs and views," said the District Attorney; "as these
communications might criminate doctor Bollman before the grand jury, the
president has communicated to me this pardon"--and Hay held out the
shameful document. He had already offered it to Bollmann, he informed
Marshall, but that incomprehensible person would neither accept nor
reject it. His evidence was "extremely material"; the pardon would
"completely exonerate him from all the penalties of the law." And so,
exclaimed Hay, "in the presence of this court, I offer this pardon to
him, and if he refuses, I shall deposit it with the clerk for his use."
Then turning to Bollmann, Hay dramatically asked:
"Will you accept this pardon?"
"No, I will not, sir," firmly answered Bollmann.
Then, said Hay, the witness must be sent to the grand jury "with an
intimation, that he has been pardoned."
"It has always been doctor Bollman's intention to refuse this pardon,"
broke in Luther Martin. He had not done so before only "because he
wished to have this opportunity of publicly rejecting it."
Witness after witness was sworn and sent to the grand jury, Hay and
Martin quarreling over the effect of Jefferson's pardon of Bollmann.
Marshall said that it would be better "to settle ... the validity of the
pardon before he was sent to the grand jury." Again Hay offered
Bollmann the offensive guarantee of immunity; again it was refused;
again Martin protested.
"Are you then willing to hear doctor Bollman indicted?" asked Hay, white
with anger. "Take care," he theatrically cried to Martin, "in what an
awful condition you are placing this gentleman."
Bollmann could not be frightened, retorted Martin: "He is a man of too
much honour to trust his reputation to the course which you prescribe
for him."
Marshall "would perceive," volunteered the nonplussed and exasperated
Hay, "that doctor Bollman now possessed so much zeal, as even to
encounter the risk of an indictment for treason."
The Chief Justice announced that he could not, "at present, declare,
whether he be really pardoned or not." He must, he said, "take time to
deliberate."
Hay persisted: "Categorically then I ask you, Mr. Bollman, do you accept
your pardon?"
"I have already answered that question several times. I say no,"
responded Bollmann. "I repeat, that I would have refused it before, but
that I wished this opportunity of publicly declaring it."[1124]
Bollmann was represented by an attorney of his own, a Mr. Williams, who
now cited an immense array of authorities on the various questions
involved. Counsel on both sides entered into the discussion. One "reason
why doctor Bollman has refused this pardon" was, said Martin, "that it
would be considered as an admission of guilt." But "doctor Bollman does
not admit that he has been guilty. He does not consider a pardon as
necessary for an innocent man. Doctor Bollman, sir, knows what he has to
fear from the persecution of an angry government; but he will brave it
all."
Yes! cried Martin, with immense effect on the excited spectators, "the
man, who did so much to rescue the marquis la Fayette from his
imprisonment, and who has been known at so many courts, bears too great
a regard for his reputation, to wish to have it sounded throughout
Europe, that he was compelled to abandon his honour through a fear of
unjust persecution." Finally the true-hearted and defiant Bollmann was
sent to the grand jury without having accepted the pardon, and without
the legal effect of its offer having been decided.[1125]
When the Richmond _Enquirer_, containing Marshall's opinion on the
issuance of the subpoena _duces tecum_, reached Washington, the
President wrote to Hay an answer of great ability, in which Jefferson
the lawyer shines brilliantly forth: "As is usual where an opinion is
to be supported, right or wrong, he [Marshall] dwells much on smaller
objections, and passes over those which are solid.... He admits
no exception" to the rule "that all persons owe obedience to
subpoenas ... unless it can be produced in his law books."
"But," argues Jefferson, "if the Constitution enjoins on a particular
officer to be always engaged in a particular set of duties imposed on
him, does not this supersede the general law, subjecting him to minor
duties inconsistent with these? The Constitution enjoins his [the
President's] constant agency in the concerns of 6. millions of people.
Is the law paramount to this, which calls on him on behalf of a single
one?"
Let Marshall smoke his own tobacco: suppose the Sheriff of Henrico
County should summon the Chief Justice to help "quell a riot"? Under the
"general law" he is "a part of the _posse_ of the State sheriff"; yet,
"would the Judge abandon major duties to perform lesser ones?" Or,
imagine that a court in the most distant territory of the United States
"commands, by subpoenas, the attendance of all the judges of the
Supreme Court. Would they abandon their posts as judges, and the
interests of millions committed to them, to serve the purposes of a
single individual?"
The Judiciary was incessantly proclaiming its "independence," and
asserting that "the leading principle of our Constitution is the
independence of the Legislature, executive and judiciary of each other."
But where would be such independence, if the President "were subject to
the _commands_ of the latter, & to imprisonment for disobedience; if the
several courts could bandy him from pillar to post, keep him constantly
trudging from north to south & east to west, and withdraw him entirely
from his constitutional duties?"
Jefferson vigorously resented Marshall's personal reference to him. "If
he alludes to our annual retirement from the seat of government, during
the sickly season," Hay ought to tell Marshall that Jefferson carried
on his Executive duties at Monticello.[1126]
Crowded with sensations as the proceedings had been from the first, they
now reached a stage of thrilling movement and high color. The
long-awaited and much-discussed Wilkinson had at last arrived "with ten
witnesses, eight of them Burr's select men," as Hay gleefully reported
to Jefferson.[1127] Fully attired in the showy uniform of the period, to
the last item of martial decoration, the fat, pompous Commanding General
of the American armies strode through the crowded streets of Richmond
and made his way among the awed and gaping throng to his seat by the
side of the Government's attorneys.
Washington Irving reports that "Wilkinson strutted into the Court,
and ... stood for a moment swelling like a turkey cock." Burr ignored
him until Marshall "directed the clerk to swear General Wilkinson;
at the mention of the name Burr turned his head, looked him full in
the face with one of his piercing regards, swept his eye over his
whole person from head to foot, as if to scan its dimensions, and then
coolly ... went on conversing with his counsel as tranquilly as
ever."[1128]
Wilkinson delighted Jefferson with a different description: "I saluted
the Bench & in spite of myself my Eyes darted a flash of indignation at
the little Traitor, on whom they continued fixed until I was called to
the Book--here Sir I found my expectations verified--This Lyon hearted
Eagle Eyed Hero, sinking under the weight of conscious guilt, with
haggard Eye, made an Effort to meet the indignant salutation of outraged
Honor, but it was in vain, his audacity failed Him, He averted his face,
grew pale & affected passion to conceal his perturbation."[1129]
But the countenance of a thin, long-faced, roughly garbed man sitting
among the waiting witnesses was not composed when Wilkinson appeared.
For three weeks Andrew Jackson to all whom he met had been expressing
his opinion of Wilkinson in the unrestrained language of the fighting
frontiersman;[1130] and he now fiercely gazed upon the creature whom he
regarded as a triple traitor, his own face furious with scorn and
loathing.
Within the bar also sat that brave and noble man whose career of
unbroken victories had made the most brilliant and honorable page thus
far in the record of the American Navy--Commodore Thomas Truxtun. He was
dressed in civilian attire.[1131] By his side, clad as a man of
business, sat a brother naval hero of the old days, Commodore Stephen
Decatur.[1132] A third of the group was Benjamin Stoddert, the Secretary
of the Navy under President Adams.[1133]
In striking contrast with the dignified appearance and modest deportment
of these gray-haired friends was the gaudily appareled, aggressive
mannered Eaton, his restlessness and his complexion advertising those
excesses which were already disgusting even the hard-drinking men then
gathered in Richmond. Dozens of inconspicuous witnesses found humbler
places in the audience, among them Sergeant Jacob Dunbaugh, bearing
himself with mingled bravado, insolence, and humility, the stripes on
the sleeve of his uniform designating the position to which Wilkinson
had restored him.
Dunbaugh had gone before the grand jury on Saturday, as had Bollmann;
and now, one by one, Truxtun, Decatur, Eaton, and others were sent to
testify before that body.
Eaton told the grand jury the same tale related in his now famous
affidavit.[1134]
Commodore Truxtun testified to facts as different from the statements
made by "the hero of Derne"[1135] as though Burr had been two utterly
contrasted persons. During the same period that Burr had seen Eaton, he
had also conversed with him, said Truxtun. Burr mentioned a great
Western land speculation, the digging of a canal, and the building of a
bridge. Later on Burr had told him that "in the event of a war with
Spain, which he thought inevitable, ... he contemplated an expedition to
Mexico," and had asked Truxtun "if the Havanna could be easily taken ...
and what would be the best mode of attacking Carthagena and La Vera Cruz
by land and sea." The Commodore had given Burr his opinion "very
freely," part of it being that "it would require a naval force." Burr
had answered that "_that_ might be obtained," and had frankly asked
Truxtun if he "would take the command of a naval expedition."
"I asked him," testified Truxtun, "if the executive of the United States
were privy to, or concerned in the project? He answered _emphatically_
that he was not: ... I told Mr. Burr that I would have nothing to do
with it.... He observed to me, that in the event of a war [with Spain],
he intended to establish an independent government in Mexico; that
Wilkinson, the army, and many officers of the navy would join....
Wilkinson had projected the expedition, and he had matured it; that many
greater men than Wilkinson would join, and that thousands to the
westward would join."
In some of the conversations "Burr mentioned to me that the government
was weak," testified Truxtun, "and he wished me to get the navy of the
United States out of my head;[1136] ... and not to think more of those
men at Washington; that he wished to _see_ or _make_ me, (I do not
recollect which of those two terms he used) an Admiral."
Burr wished Truxtun to write to Wilkinson, to whom he was about to
dispatch couriers, but Truxtun declined, as he "had no subject to write
about." Again Burr urged Truxtun to join the enterprise--"several
officers would be pleased at being put under my command.... The
expedition could not fail--the Mexicans were ripe for revolt." Burr "was
sanguine there would be war," but "if he was disappointed as to the
event of war, he was about to complete a contract for a large quantity
of land on the Washita; that he intended to invite his friends to settle
it; that in one year he would have a thousand families of respectable
and fashionable people, and some of them of considerable property; that
it was a fine country, and that they would have a charming society, and
in two years he would have doubled the number of settlers; and being on
the frontier, he would be ready to move whenever a war took place....
"All his conversations respecting military and naval subjects, and the
Mexican expedition, were in the event of a war with Spain." Truxtun
testified that he and Burr were "very intimate"; that Burr talked to him
with "no reserve"; and that he "never heard [Burr] speak of a division
of the union."
Burr had shown Truxtun the plan of a "kind of boat that plies between
Paulus-Hook and New-York," and had asked whether such craft would do for
the Mississippi River and its tributaries, especially on voyages
upstream. Truxtun had said they would. Burr had asked him to give the
plans to "a naval constructor to make several copies," and Truxtun had
done so. Burr explained that "he intended those boats for the conveyance
of agricultural products to market at New-Orleans, and in the event of
war [with Spain], for transports."
The Commodore testified that Burr made no proposition to invade Mexico
"whether there was war [with Spain] or not." He was so sure that Burr
meant to settle the Washita lands that he was "astonished" at the
newspaper accounts of Burr's treasonable designs after he had gone to
the Western country for the second time.
Truxtun had freely complained of what amounted to his discharge
from the Navy, being "pretty full" himself of "resentment against
the Government," and Burr "joined [him] in opinion" on the
Administration.[1137]
Jacob Dunbaugh told a weird tale. At Fort Massac he had been under
Captain Bissel and in touch with Burr. His superior officer had granted
him a furlough to accompany Burr for twenty days. Before leaving,
Captain Bissel had "sent for [Dunbaugh] to his quarters," told him to
keep "any secrets" Burr had confided to him, and "advised" him "never to
forsake Col. Burr"; and "at the same time he made [Dunbaugh] a present
of a silver breast plate."
After Dunbaugh had joined the expedition, Burr had tried to persuade him
to get "ten or twelve of the best men" among his nineteen fellow
soldiers then at Chickasaw Bluffs to desert and join the expedition; but
the virtuous sergeant had refused. Then Burr had asked him to "steal
from the garrison arms such as muskets, fusees and rifles," but Dunbaugh
had also declined this reasonable request. As soon as Burr learned of
Wilkinson's action, he told Dunbaugh to come ashore with him armed "with
a rifle," and to "conceal a bayonet under [his] clothes.... He told me
he was going to tell me something I must never relate again, ... that
General Wilkinson had betrayed him ... that he had played the devil with
him, and had proved the greatest traitor on the earth."
Just before the militia broke up the expedition, Burr and Wylie, his
secretary, got "an axe, auger and saw," and "went into Colonel Burr's
private room and began to chop," Burr first having "ordered no person to
go out." Dunbaugh did go out, however, and "got on the top of the boat."
When the chopping ceased, he saw that "a Mr. Pryor and a Mr. Tooly got
out of the window," and "saw two bundles of arms tied up with cords, and
sunk by cords going through the holes at the gunwales of Colonel Burr's
boat." The vigilant Dunbaugh also saw "about forty or forty-three stands
[of arms], besides pistols, swords, blunderbusses, fusees, and
tomahawks"; and there were bayonets too.[1138]
Next Wilkinson detailed to the grand jury the revelations he had made to
Jefferson. He produced Burr's cipher letter to him, and was forced to
admit that he had left out the opening sentence of it--"Yours,
postmarked 13th of May, is received"--and that he had erased some words
of it and substituted others. He recounted the alarming disclosures he
had so cunningly extracted from Burr's messenger, and enlarged upon the
heroic measures he had taken to crush treason and capture traitors. For
four days[1139] Wilkinson held forth, and himself escaped indictment by
the narrow margin of 7 to 9 of the sixteen grand jurymen. All the
jurymen, however, appear to have believed him to be a scoundrel.[1140]
"The mammoth of iniquity escaped," wrote John Randolph in acrid disgust,
"not that any man pretended to think him innocent, but upon certain
wire-drawn distinctions that I will not pester you with. Wilkinson is
the only man I ever saw who was from the bark to the very core a
villain.... Perhaps you never saw human nature in so degraded a
situation as in the person of Wilkinson before the grand jury, and yet
this man stands on the very summit and pinnacle of executive
favor."[1141]
Samuel Swartwout, the courier who had delivered Burr's ill-fated letter,
"most positively denied" that he had made the revelations which
Wilkinson claimed to have drawn from him.[1142] The youthful Swartwout
as deeply impressed the grand jury with his honesty and truthfulness as
Wilkinson impressed that body with his untrustworthiness and
duplicity.[1143]
Peter Taylor and Jacob Allbright then recounted their experiences.[1144]
And the Morgans told of Burr's visit and of their inferences from his
mysterious tones of voice, glances of eye, and cryptic expressions. So
it was, that in spite of overwhelming testimony of other
witnesses,[1145] who swore that Burr's purposes were to settle the
Washita lands and in the event of war with Spain, and only in that
event, to invade Mexico, with never an intimation of any project hostile
to the United States--so it was that bills of indictment for treason and
for misdemeanor were, on June 24, found against Aaron Burr of New York
and Harman Blennerhassett of Virginia. The indictment for treason
charged that on December 13, 1806, at Blennerhassett's island in
Virginia, they had levied war on the United States; and the one for
misdemeanor alleged that, at the same time and place, they had set on
foot an armed expedition against territory belonging to His Catholic
Majesty, Charles IV of Spain.[1146]
This result of the grand jury's investigations was reached because of
that body's misunderstanding of Marshall's charge and of his opinion in
the Bollmann and Swartwout case.[1147]
John Randolph, as foreman of the grand jury, his nose close to the
ground on the scent of the principal culprit, came into court the day
after the indictment of Burr and Blennerhassett and asked for the letter
from Wilkinson to Burr, referred to in Burr's cipher dispatch to
Wilkinson, and now in the possession of the accused. Randolph said that,
of course, the grand jury could not ask Burr to appear before them as a
witness, but that they did want the letter.
Marshall declared "that the grand jury were perfectly right in the
opinion." Burr said that he could not reveal a confidential
communication, unless "the extremity of circumstances might impel him
to such a conduct." He could not, for the moment, decide; but that
"unless it were extorted from him by law" he could not even "deliberate
on the proposition to deliver up any thing which had been confided to
his honour."
Marshall announced that there was no "objection to the grand jury
calling before them and examining any man ... who laid under an
indictment." Martin agreed "there could be no objection."
The grand jury did not want Burr as a witness, said John Randolph. They
asked only for the letter. If they should wish Burr's presence at all,
it would be only for the purpose of identifying it. So the grand jury
withdrew.[1148]
Hay was swift to tell his superior all about it, although he trembled
between gratification and alarm. "If every trial were to be like that, I
am doubtful whether my patience will sustain me while I am wading thro'
this abyss of human depravity."
Dutifully he informed the President that he feared that "the Gr: Jury
had not dismissed all their suspicions of Wilkinson," for John Randolph
had asked for his cipher letter to Burr. Then he described to Jefferson
the intolerable prisoner's conduct: "Burr rose immediately, & declared
that no consideration, no calamity, no desperation, should induce _him_
to betray a letter confidentially written. He could not even allow
himself to deliberate on a point, where his conduct was prescribed by
the clearest principles of honor &c. &c. &c."
Hay then related what Marshall and John Randolph had said, underscoring
the statement that "the Gr: Jury _did not want A. B. as a witness_." Hay
did full credit, however, to Burr's appearance of candor: "The attitude
& tone assumed by Burr struck everybody. There was an appearance of
_honor_ and magnanimity which brightened the countenances of the phalanx
who daily attend, for his encouragement & support."[1149]
Day after day was consumed in argument on points of evidence, while the
grand jury were examining witnesses. Marshall delivered a long written
opinion upon the question as to whether a witness could be forced to
give testimony which he believed might criminate himself. The District
Attorney read Jefferson's two letters upon the subject of the subpoena
_duces tecum_. No pretext was too fragile to be seized by one side or
the other, as the occasion for argument upon it demanded--for instance,
whether or not the District Attorney might send interrogatories to the
grand jury. Always the lawyers spoke to the crowd as well as to the
court, and their passages at arms became ever sharper.[1150]
Wilkinson is "an honest man and a patriot"--no! he is a liar and a
thief; Louisiana is a "poor, unfortunate, enslaved country"; letters had
been seized by "foulness and violence"; the arguments of Burr's
attorneys are "mere declamations"; the Government's agents are striving
to prevent Burr from having "a fair trial ... the newspapers and party
writers are employed to _cry_ and _write_ him down; his counsel are
denounced for daring to defend him; the passions of the grand jury are
endeavored to be excited against him, at all events";[1151] Hay's mind
is "harder than Ajax's seven fold shield of bull's hide"; Edmund
Randolph came into court "with mysterious looks of awe and terror ... as
if he had something to communicate which was too horrible to be told";
Hay is always "on his heroics"; he "hopped up like a parched pea"; the
object of Burr's counsel is "to prejudice the surrounding multitude
against General Wilkinson"; one newspaper tale is "as impudent a
falsehood as ever malignity had uttered"--such was the language with
which the arguments were adorned. They were, however, well sprinkled
with citations of authority.[1152]
FOOTNOTES:
[1017] See vol. I, 201, of this work.
[1018] Tobacco chewing and smoking in court-rooms continued in most
American communities in the South and West down to a very recent period.
[1019] Address of John Tyler on "Richmond and its Memories," Tyler, I,
219.
[1020] Irving was twenty-four years old when he reported the Burr trial.
[1021] _Blennerhassett Papers_: Safford, 465. Marshall made this avowal
to Luther Martin, who personally told Blennerhassett of it.
[1022] Judge Francis M. Finch, in Dillon, I, 402.
"The men who framed that instrument [Constitution] remembered the crimes
that had been perpetrated under the pretence of justice; for the most
part they had been traitors themselves, and having risked their necks
under the law they feared despotism and arbitrary power more than they
feared treason." (Adams: _U.S._ III, 468.)
[1023] A favorite order from the bench for the execution of the
condemned was that the culprit should be drawn prostrate at the tails of
horses through the jagged and filthy streets from the court-room to the
place of execution; the legs, arms, nose, and ears there cut off; the
intestines ripped out and burned "before the eyes" of the victim; and
finally the head cut off. Details still more shocking were frequently
added. See sentences upon William, Lord Russell, July 14, 1683 (_State
Trials Richard II to George I_, vol. 3, 660); upon Algernon Sidney,
November 26, 1683 (_ib._ 738); upon William, Viscount Stafford, December
7, 1680 (_ib._ 214); upon William Stayley, November 21, 1678 (_ib._ vol.
2, 656); and upon other men condemned for treason.
[1024] Even in Philadelphia, after the British evacuation of that place
during the Revolution, hundreds were tried for treason. Lewis alone,
although then a very young lawyer, defended one hundred and fifty-two
persons. (See _Chase Trial_, 21.)
[1025] "In the English law ... the rule ... had been that enough heads
must be cut off to glut the vengeance of the Crown." (Isaac N. Phillips,
in Dillon, II, 394.)
[1026] Iredell's charge to the Georgia Grand Jury, April 26, 1792,
_Iredell_: McRee, II, 349; and see Iredell's charge to the Massachusetts
Grand Jury, Oct. 12, 1792, _ib._ 365.
[1027] See his concurrence with Judge Peters's charge in the Fries case,
Wharton: _State Trials_, 587-91; and Peters's opinion, _ib._ 586; also
see Chase's charge at the second trial of Fries, _ib._ 636.
[1028] "The President's popularity is unbounded, and his will is that of
the nation.... Such is our present infatuation." (Nicholson to Randolph,
April 12, 1807, Adams: _Randolph_, 216-17.)
[1029] Hildreth, IV, 692.
[1030] Parton: _Burr_, 458.
[1031] Parton: _Jackson_, I, 333.
[1032] Jackson to Anderson, June 16, 1807, _ib._ 334.
[1033] _Ib._ 335.
[1034] _Ib._ 334-36.
[1035] Parton: _Burr_, 606-08; see also Parton: _Jackson_, II, 258-59,
351-54; and Davis, II, 433-36.
[1036] Address of John Tyler, "Richmond and its Memories," Tyler, I,
219.
[1037] Parton: _Burr_, 459.
[1038] _Memoirs of Lieut.-General Scott_, I, 13.
[1039] _Memoirs of Lieut.-General Scott_, I, 13, 16.
[1040] See _Great American Lawyers_: Lewis, II, 268-75.
Kennedy says that the stories of Wirt's habits of intoxication were
often exaggerated (Kennedy, I, 68); but see his description of the bar
of that period and his apologetic reference to Wirt's conviviality
(_ib._ 66-67).
[1041] _Blennerhassett Papers_: Safford, 426.
[1042] Parton: _Burr_, 461.
[1043] _Burr Trials_, I, 31-32.
[1044] _Ib._ 37.
[1045] _Ib._ 38.
[1046] Meaning the partiality of the persons challenged, such as
animosity toward the accused, conduct showing bias against him, and the
like. See _Bouvier's Law Dictionary_: Rawle, 3d revision, II, 1191.
[1047] _Burr Trials_, I, 38-39.
[1048] _Ib._ 41-42.
[1049] _Burr Trials_, I, 41-42.
[1050] Jefferson to Nicholas, Feb. 28, 1807, _Works_: Ford, X, 370-71.
[1051] _Burr Trials_, I, 43.
[1052] _Ib._ 44.
[1053] In view of the hatred which Marshall knew Randolph felt toward
Jefferson, it is hard to reconcile his appointment with the fairness
which Marshall tried so hard to display throughout the trial. However,
several of Jefferson's most earnest personal friends were on the grand
jury, and some of them were very powerful men. Also fourteen of the
grand jury were Republicans and only two were Federalists.
[1054] _Burr Trials_, I, 45-46. This grand jury included some of the
foremost citizens of Virginia. The sixteen men who composed this body
were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Littleton
W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William
Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly,
John Ambler, Thomas Harrison, Alexander Shephard, and James Barbour.
[1055] Marshall's error in this opinion, or perhaps the misunderstanding
of a certain passage of it (see _supra_, 350), caused him infinite
perplexity during the trial; and he was put to his utmost ingenuity to
extricate himself. The misconstruction by the grand jury of the true
meaning of Marshall's charge was one determining cause of the grand
jury's decision to indict Burr. (See _infra_, 466.)
[1056] _Burr Trials_, I, 47-48.
[1057] Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.
[1058] _Burr Trials_, I, 48-51.
[1059] _Burr Trials_, I, 53-54.
[1060] Irving to Paulding, June 22, 1807, _Life and Letters of
Washington Irving_: Irving, I, 145.
[1061] _Burr Trials_, I, 57-58.
[1062] _Burr Trials_, I, 58-76.
[1063] "I ... contented myself ... with ... declaring to the Audience
(for two thirds of our speeches have been addressed to the people) that
I was prepared to give the most direct contradiction to the injurious
Statements." (Hay to Jefferson, June 14, 1807, giving the President an
account of the trial, Jefferson MSS. Lib. Cong.)
[1064] He was hanged in effigy soon after the trial. (See _infra_, 539.)
[1065] It must be remembered that Marshall himself declared, in the very
midst of the contest, that it would be dangerous for a jury to acquit
Burr. (See _supra_, 401.)
[1066] He had narrowly escaped impeachment (see _supra_, chap. IV), and
during the trial he was openly threatened with that ordeal (see _infra_,
500).
[1067] _Burr Trials_, I, 79-81.
[1068] See _supra_, 390-91.
[1069] Jefferson to Hay, May 26, 1807, _Works_: Ford, X, footnote to
394-95.
[1070] _Burr Trials_, I, 81-82.
[1071] _Ib._ 82.
[1072] _Ib._ 84-85.
[1073] _Burr Trials_, I, 91.
[1074] _Ib._ 94.
[1075] _Ib._ 95-96.
[1076] _Burr Trials_, I, 492-97.
[1077] _Burr Trials_, I, 509-14.
[1078] _Burr Trials_, I, 97-101.
[1079] _Ib._ 97.
[1080] _Md. Hist. Soc. Fund-Pub. No. 24, 22._
[1081] _Blennerhassett Papers_: Safford, 468-69.
[1082] _Burr Trials_, I, 101-04.
[1083] _Burr Trials_, I, 105.
[1084] The men who went on this second bail bond for Burr were: William
Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. (_Ib._ 106.)
[1085] _Blennerhassett Papers_: Safford, 315-16.
[1086] _Eaton_: Prentiss, 396-403; 4 Cranch, 463-66.
[1087] _Blennerhassett Papers_: Safford, 425.
[1088] Jefferson to Hay, May 28, 1807, _Works_: Ford, X, 395-96.
[1089] Jefferson to Eppes, May 28, 1807, _Works_: Ford, X, 412-13.
[1090] Hay to Jefferson, May 31, 1807, Jefferson MSS. Lib. Cong.
[1091] Jefferson to Hay, June 2, 1807, _Works_: Ford, X, 396-97.
[1092] Same to same, June 5, 1807, _ib._ 397-98; Hay to Jefferson, same
date, Jefferson MSS. Lib. Cong.; and others cited, _infra_.
[1093] Jefferson to Dayton, Aug. 17, 1807, _Works_: Ford, X, 478.
[1094] Irving to Mrs. Hoffman, June 4, 1807, Irving, I, 142.
[1095] _Ib._
[1096] Burr had seen the order in the _Natchez Gazette_. It was widely
published.
[1097] _Burr Trials_, I, 113-14.
[1098] _Burr Trials_, I, 115-18.
[1099] Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong.
[1100] Jefferson to Hay, June 12, 1807, _Works_: Ford, X, 398-99.
[1101] _Burr Trials_, I, 124-25.
[1102] Irving to Mrs. Hoffman, June 4, 1807, Irving, I, 143.
[1103] Martin here refers to what he branded as "the farcical trials of
Ogden and Smith." In June and July, 1806, William S. Smith and Samuel G.
Ogden of New York were tried in the United States Court for that
district upon indictments charging them with having aided Miranda in his
attack on Caracas, Venezuela. They made affidavit that the testimony of
James Madison, Secretary of State, Henry Dearborn, Secretary of War,
Robert Smith, Secretary of the Navy, and three clerks of the State
Department, was necessary to their defense. Accordingly these officials
were summoned to appear in court. They refused, but on July 8, 1806,
wrote to the Judges--William Paterson of the Supreme Court and Matthias
B. Talmadge, District Judge--that the President "has specially signified
to us that our official duties cannot ... be at this juncture dispensed
with." (_Trials of Smith and Ogden_: Lloyd, stenographer, 6-7.)
The motion for an attachment to bring the secretaries and their clerks
into court was argued for three days. The court disagreed, and no action
therefore was taken. (_Ib._ 7-90.) One judge (undoubtedly Paterson) was
"of opinion, that the absent witnesses should be laid under a rule to
show cause, why an attachment should not be issued against them"; the
other (Talmadge) held "that neither an attachment in the first instance,
nor a rule to show cause ought to be granted." (_Ib._ 89.)
Talmadge was a Republican, appointed by Jefferson, and charged heavily
against the defendants (_ib._ 236-42, 287); but they were acquitted.
The case was regarded as a political prosecution, and the refusal of
Cabinet officers and department clerks to obey the summons of the court,
together with Judge Talmadge's disagreement with Justice Paterson--who
in disgust immediately left the bench under plea of ill-health (_ib._
90)--and the subsequent conduct of the trial judge, were commented upon
unfavorably. These facts led to Martin's reference during the Burr
trial.
[1104] _Burr Trials_, I, 127-28.
[1105] _Burr Trials_, I, 130-33.
[1106] _Ib._ 134-35.
[1107] _Burr Trials_, I, 137-45.
[1108] _Burr Trials_, I, 147-48.
[1109] _Ib._ 148-52.
[1110] _Burr Trials_, I, 153-64.
[1111] _Burr Trials_, I, 164-67.
[1112] _Ib._ 173-76.
[1113] _Burr Trials_, I, 177.
[1114] See _infra_, 455-56.
[1115] _Burr Trials_, I, 181-83.
[1116] United States _vs._ Smith and Ogden. (See _supra_, 436,
foot-note.)
[1117] _Burr Trials_, I, 187-88.
[1118] _Burr Trials_, I, 189.
[1119] Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.
[1120] Ambler: _Thomas Ritchie--A Study in Virginia Politics_, 40-41.
[1121] Jefferson to Hay, June 17, 1807, _Works_: Ford, X, 400-01.
[1122] Jefferson to Hay, June 19, 1807, _Works_: Ford, X, 402-03.
[1123] _Burr Trials_, I, 190.
[1124] _Burr Trials_, I, 191-93.
[1125] _Burr Trials_, I, 193-96.
[1126] Jefferson to Hay, June 20, 1807, _Works_: Ford, X, 403-05.
[1127] Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This
letter announced Wilkinson's landing at Hampton Roads.
Wilkinson reached Richmond by stage on Saturday, June 13. He was
accompanied by John Graham and Captain Gaines, the ordinary witnesses
having been sent ahead on a pilot boat. (Graham to Madison, May 11,
1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated
his letter May 11 instead of June 11. He had left New Orleans in May,
and in the excitement of landing had evidently forgotten that a new
month had come.
Wilkinson was "too much fatigued" to come into court. (_Burr Trials_, I,
196.) By Monday, however, he was sufficiently restored to present
himself before Marshall.
[1128] Irving to Paulding, June 22, 1807, Irving, I, 145.
[1129] Wilkinson to Jefferson, June 17, 1807, "Letters in Relation,"
MSS. Lib. Cong.
The court reporter impartially states that Wilkinson was "calm,
dignified, and commanding," and that Burr glanced at him with "haughty
contempt." (_Burr Trials_, I, footnote to 197.)
[1130] "Gen: Jackson of Tennessee has been here ever since the 22^{d.}
[of May] denouncing Wilkinson in the coarsest terms in every company."
(Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)
Hay had not the courage to tell the President that Jackson had been as
savagely unsparing in his attacks on Jefferson as in his thoroughly
justified condemnation of Wilkinson.
[1131] Truxtun left the Navy in 1802, and, at the time of the Burr
trial, was living on a farm in New Jersey. No officer in any navy ever
made a better record for gallantry, seamanship, and whole-hearted
devotion to his country. The list of his successful engagements is
amazing. He was as high-spirited as he was fearless and honorable.
In 1802, when in command of the squadron that was being equipped for our
war with Tripoli, Truxtun most properly asked that a captain be
appointed to command the flagship. The Navy was in great disfavor with
Jefferson and the whole Republican Party, and naval affairs were sadly
mismanaged or neglected. Truxtun's reasonable request was refused by the
Administration, and he wrote a letter of indignant protest to the
Secretary of the Navy. To the surprise and dismay of the experienced and
competent officer, Jefferson and his Cabinet construed his spirited
letter as a resignation from the service, and, against Truxtun's wishes,
accepted it as such. Thus the American Navy lost one of its ablest
officers at the very height of his powers. Truxtun at the time was
fifty-two years old. No single act of Jefferson's Administration is more
discreditable than this untimely ending of a great career.
[1132] This man was the elder Decatur, father of the more famous officer
of the same name. He had had a career in the American Navy as honorable
but not so distinguished as that of Truxtun; and his service had been
ended by an unhappy circumstance, but one less humiliating than that
which severed Truxtun's connection with the Navy.
The unworthiest act of the expiring Federalist Congress of 1801, and one
which all Republicans eagerly supported, was that authorizing most of
the ships of the Navy to be sold or laid up and most of the naval
officers discharged. (Act of March 3, 1801, _Annals_, 6th Cong. 1st and
2d Sess. 1557-59.) Among the men whose life profession was thus cut off,
and whose notable services to their country were thus rewarded, was
Commodore Stephen Decatur, who thereafter engaged in business in
Philadelphia.
[1133] It was under Stoddert's administration of the Navy Department
that the American Navy was really created. Both Truxtun and Decatur won
their greatest sea battles in our naval war with France, while Stoddert
was Secretary. The three men were close friends and all of them warmly
resented the demolition of the Navy and highly disapproved of Jefferson,
both as an individual and as a statesman. They belonged to the old
school of Federalists. Three more upright men did not live.
[1134] See _supra_, 304-05.
[1135] A popular designation of Eaton after his picturesque and heroic
Moroccan exploit.
[1136] Truxtun at the time of his conversations with Burr was in the
thick of that despair over his cruel and unjustifiable separation from
the Navy, which clouded his whole after life. The longing to be once
more on the quarter-deck of an American warship never left his heart.
[1137] _Burr Trials_, I, 486-91. This abstract is from the testimony
given by Commodore Truxtun before the trial jury, which was
substantially the same as that before the grand jury.
[1138] _Annals_, 10th Cong. 1st Sess. 452-63. See note 1, next page.
[1139] Wilkinson's testimony on the trial for misdemeanor (_Annals_,
10th Cong. 1st Sess, 520-22) was the same as before the grand jury.
"Wilkinson is now before the grand jury, and has such a mighty mass of
_words_ to deliver himself of, that he claims at least two days more to
discharge the wondrous cargo." (Irving to Paulding, June 22, 1807,
Irving, I, 145.)
[1140] See McCaleb, 335. Politics alone saved Wilkinson. The trial was
universally considered a party matter, Jefferson's prestige, especially,
being at stake. Yet seven out of the sixteen members of the grand jury
voted to indict Wilkinson. Fourteen of the jury were Republicans, and
two were Federalists.
[1141] Randolph to Nicholson, June 25, 1807, Adams: _Randolph_, 221-22.
Speaking of political conditions at that time, Randolph observed:
"Politics have usurped the place of law, and the scenes of 1798
[referring to the Alien and Sedition laws] are again revived."
[1142] Testimony of Joseph C. Cabell, one of the grand jury. (_Annals_,
10th Cong. 1st Sess. 677.)
[1143] "Mr. Swartwout ... discovered the utmost frankness and candor in
his evidence.... The very frank and candid manner in which he gave his
testimony, I must confess, raised him very high in my estimation, and
induced me to form a very different opinion of him from that which I had
before entertained." (Testimony of Littleton W. Tazewell, one of the
grand jury, _Annals_, 10th Cong. 1st Sess. 633.)
"The manner of Mr. Swartwout was certainly that of conscious innocence."
(Testimony of Joseph C. Cabell, one of the grand jury, _ib._ 677.)
[1144] See _supra_, 426-27.
[1145] Forty-eight witnesses were examined by the grand jury. The names
are given in Brady: _Trial of Aaron Burr_, 69-70.
[1146] _Burr Trials_, I, 305-06; also "Bills of Indictment," MSS.
Archives of the United States Court, Richmond, Va.
The following day former Senator Jonathan Dayton of New Jersey, Senator
John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and
Davis Floyd of the Territory of Indiana, were presented for treason. How
Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only
less comprehensible than the presentment of Tyler, Floyd, and the two
Smiths for treason.
[1147] _Blennerhassett Papers_: Safford, 314. "Two of the most
respectable and influential of that body, since it has been discharged,
have declared they mistook the meaning of Chief Justice Marshall's
opinion as to what sort of acts amounted to treason in this country, in
the case of Swartwout and Ogden [Bollmann]; that it was under the
influence of this mistake they concurred in finding such a bill against
A. Burr, which otherwise would have probably been ignored."
[1148] _Burr Trials_, I, 327-28.
[1149] Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong.
[1150] _Burr Trials_, I, 197-357.
[1151] This was one of Luther Martin's characteristic outbursts. Every
word of it, however, was true.
[1152] _Burr Trials_, I, 197-357.