WHAT IS TREASON?
No person shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession in open
Court. (Constitution, Article III, Section 3.)
Such are the jealous provisions of our laws in favor of the
accused that I question if he can be convicted. (Jefferson.)
The scenes which have passed and those about to be transacted
will hereafter be deemed fables, unless attested by very high
authority. (Aaron Burr.)
That this court dares not usurp power is most true. That this
court dares not shrink from its duty is no less true.
(Marshall.)
While the grand jury had been examining witnesses, interesting things
had taken place in Richmond. Burr's friends increased in number and
devotion. Many of them accompanied him to and from court each day.[1153]
Dinners were given in his honor, and Burr returned these courtesies,
sometimes entertaining at his board a score of men and women of the
leading families of the city.[1154] Fashionable Richmond was rapidly
becoming Burr-partisan. In society, as at the bar, the Government had
been maneuvered into defense. Throughout the country, indeed, Burr's
numerous adherents had proved stanchly loyal to him.
"I believe," notes Senator Plumer in his diary, "even at this period,
that no man in this country, has more personal friends or who are more
firmly attached to his interests--or would make greater sacrifices to
aid him than this man."[1155] But this availed Burr nothing as against
the opinion of the multitude, which Jefferson manipulated as he chose.
Indeed, save in Richmond, this very fidelity of Burr's friends served
rather to increase the public animosity; for many of these friends were
persons of standing, and this fact did not appeal favorably to the rank
and file of the rampant democracy of the period.
In Richmond, however, Burr's presence and visible peril animated his
followers to aggressive action. On the streets, in the taverns and
drinking-places, his adherents grew bolder. Young Swartwout chanced to
meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a
paroxysm of disgust and rage," Burr's youthful follower[1156] shouldered
the burly general "into the middle of the street." Wilkinson swallowed
the insult. On learning of the incident Jackson "was wild with
delight."[1157] Burr's enemies were as furious with anger. To spirited
Virginians, only treason itself was worse than the refusal of Wilkinson,
thus insulted, to fight.
Swartwout, perhaps inspired by Jackson, later confirmed this public
impression of Wilkinson's cowardice. He challenged the General to a
duel; the hero refused--"he held no correspondence with traitors or
conspirators," he loftily observed;[1158] whereupon the young
"conspirator and traitor" denounced, in the public press, the commander
of the American armies as guilty of treachery, perjury, forgery, and
cowardice.[1159] The highest officer in the American military
establishment "posted for cowardice" by a mere stripling! More than ever
was Swartwout endeared to Jackson.
Soon after his arrival at Richmond, and a week before Burr was indicted,
Wilkinson perceived, to his dismay, the current of public favor that was
beginning to run toward Burr; and he wrote to Jefferson in unctuous
horror: "I had anticipated that a deluge of Testimony would have been
poured forth from all quarters, to overwhelm Him [Burr] with guilt &
dishonour--... To my Astonishment I found the Traitor vindicated &
myself condemned by a Mass of Wealth Character-influence &
Talents--merciful God what a Spectacle did I behold--Integrity & Truth
perverted & trampled under foot by turpitude & Guilt, Patriotism appaled
& Usurpation triumphant."[1160]
Wilkinson was plainly weakening, and Jefferson hastened to comfort his
chief witness: "No one is more sensible than myself of the injustice
which has been aimed at you. Accept I pray, my salutations and
assurances of respect and esteem."[1161]
Before the grand jury had indicted Burr and Blennerhassett, Wilkinson
suffered another humiliation. On the very day that the General sent his
wailing cry of outraged virtue to the President, Burr gave notice that
he would move that an attachment should issue against Jefferson's hero
for "contempt in obstructing the administration of justice" by rifling
the mails, imprisoning witnesses, and extorting testimony by
torture.[1162] The following day was consumed in argument upon the
motion that did not rise far above bickering. Marshall ruled that
witnesses should be heard in support of Burr's application, and that
Wilkinson ought to be present.[1163] Accordingly, the General was
ordered to come into court.
James Knox, one of the young men who had accompanied Burr on his
disastrous expedition, had been brought from New Orleans as a witness
for the Government. He told a straightforward story of brutality
inflicted upon him because he could not readily answer the printed
questions sent out by Jefferson's Attorney-General.[1164] By other
witnesses it appeared that letters had been improperly taken from the
post-office in New Orleans.[1165] An argument followed in which counsel
on both sides distinguished themselves by the learning and eloquence
they displayed.[1166]
It was while Botts was speaking on this motion to attach Wilkinson, that
the grand jury returned the bills of indictment.[1167] So came the
dramatic climax.
Instantly the argument over the attachment of Wilkinson was suspended.
Burr said that he would "prove that the indictment against him had been
obtained by perjury"; and that this was a reason for the court to
exercise its discretion in his favor and to accept bail instead of
imprisoning him.[1168] Marshall asked Martin whether he had "any
precedent, where a court has bailed for treason, after the finding of a
grand jury," when "the testimony ... had been impeached for perjury," or
new testimony had been presented to the court.[1169] For once in his
life, Martin could not answer immediately and offhand. So that night
Aaron Burr slept in the common jail at Richmond.
"The cup of bitterness has been administered to him with unsparing
hand," wrote Washington Irving.[1170] But he did not quail. He was
released next morning upon a writ of habeas corpus;[1171] the argument
on the request for the attachment of Wilkinson was resumed, and for
three days counsel attacked and counter-attacked.[1172] On June 26,
Burr's attorneys made oath that confinement in the city jail was
endangering his health; also that they could not, under such conditions,
properly consult with him about the conduct of his case. Accordingly,
Marshall ordered Burr removed to the house occupied by Luther Martin;
and to be confined to the front room, with the window shutters secured
by bars, the door by a padlock, and the building guarded by seven men.
Burr pleaded not guilty to the indictments against him, and orders were
given for summoning the jury to try him.[1173]
Finally, Marshall delivered his written opinion upon the motion to
attach Wilkinson. It was unimportant, and held that Wilkinson had not
been shown to have influenced the judge who ordered Knox imprisoned or
to have violated the laws intentionally. The Chief Justice ordered the
marshal to summon, in addition to the general panel, forty-eight men to
appear on August 3 from Wood County, in which Blennerhassett's island
was located, and where the indictment charged that the crime had been
committed.[1174]
Five days before Marshall adjourned court in order that jurymen might be
summoned and both prosecution and defense enabled to prepare for trial,
an event occurred which proved, as nothing else could have done, how
intent were the people on the prosecution of Burr, how unshakable the
tenacity with which Jefferson pursued him.
On June 22, 1807, the British warship, the Leopard, halted the American
frigate, the Chesapeake, as the latter was putting out to sea from
Norfolk. The British officers demanded of Commodore James Barron to
search the American ship for British deserters and to take them if
found. Barron refused. Thereupon the Leopard, having drawn alongside the
American vessel, without warning poured broadsides into her until her
masts were shot away, her rigging destroyed, three sailors killed and
eighteen wounded. The Chesapeake had not been fitted out, was unable to
reply, and finally was forced to strike her colors. The British officers
then came on board and seized the men they claimed as deserters, all but
one of whom were American-born citizens.[1175]
The whole country, except New England, roared with anger when the news
reached the widely separated sections of it; but the tempest soon spent
its fury. Quickly the popular clamor returned to the "traitor" awaiting
trial at Richmond. Nor did this "enormity," as Jefferson called the
attack on the Chesapeake,[1176] committed by a foreign power in American
waters, weaken for a moment the President's determination to punish the
native disturber of our domestic felicity.
The news of the Chesapeake outrage arrived at Richmond on June 25, and
John Randolph supposed that, of course, Jefferson would immediately call
Congress in special session.[1177] The President did nothing of the
kind. Wilkinson, as Commander of the Army, advised him against armed
retaliation. The "late outrage by the British," wrote the General, "has
produced ... a degree of Emotion bordering on rage--I revere the
Honourable impulse but fear its Effects--... The present is no moment
for precipitancy or a stretch of power--on the contrary the British
being prepared for War & we not, a sudden appeal to hostilities will
give them a great advantage--... The efforts made here [Richmond] by a
band of depraved Citizens, in conjunction with an audacious phalanx of
insolent exotics, to save Burr, will have an ultimate good Effect, for
the national Character of the _Ancient dominion_ is in display, and the
honest impulses of true patriotism will soon silence the advocates of
usurpation without & conspiracy within."
Wilkinson tells Jefferson that he is coming to Washington forthwith to
pay his "respects," and concludes: "You are doubtless well advised of
proceedings here in the case of Burr--to me they are incomprehensible as
I am no Jurist--The Grand Jury actually made an attempt to present me
for Misprision of Treason--... I feel myself between 'Scylla and
Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr &
his Conspirators for performing it--"[1178]
Not until five weeks after the Chesapeake affair did the President call
Congress to convene in special session on October 26--more than four
months after the occurrence of the crisis it was summoned to
consider.[1179] But in the meantime Jefferson had sent a messenger to
advise the American Minister in London to tell the British Government
what had happened, and to demand a disavowal and an apology.
Meanwhile, the Administration vigorously pushed the prosecution of the
imprisoned "traitor" at Richmond.[1180] Hay was dissatisfied that Burr
should remain in Martin's house, even under guard and with windows
barred and door locked; and he obtained from the Executive Council of
Virginia a tender to the court of "apartments on the third floor" of the
State Penitentiary for the incarceration of the prisoner. Burr's counsel
strenuously objected, but Marshall ordered that he be confined there
until August 2, at which time he should be returned to the barred and
padlocked room in Martin's house.[1181]
In the penitentiary, "situated in a solitary place among the hills" a
mile and a half from Richmond,[1182] Burr remained for five weeks. Three
large rooms were given him in the third story; the jailer was
considerate and kind; his friends called on him every day;[1183] and
servants constantly "arrived with messages, notes, and inquiries,
bringing oranges, lemons, pineapples, raspberries, apricots, cream,
butter, ice and some ordinary articles."[1184]
Burr wrote Theodosia of his many visitors, women as well as men: "It is
well that I have an ante-chamber, or I should often be _gêné_ with
visitors." If Theodosia should come on for the trial, he playfully
admonishes her that there must be "no agitations, no complaints, no
fears or anxieties on the road, or I renounce thee."[1185]
Finally Burr asked his daughter to come to him: "I want an independent
and discerning witness to my conduct and that of the government. The
scenes which have passed and those about to be transacted will exceed
all reasonable credibility, and will hereafter be deemed fables, unless
attested by very high authority.... I should never invite any one, much
less those so dear to me, to witness my disgrace. I may be immured in
dungeons, chained, murdered in legal form, but I cannot be humiliated or
disgraced. If absent, you will suffer great solicitude. In my presence
you will feel none, whatever be the _malice_ or the _power_ of my
enemies, and in both they abound."[1186]
Theodosia was soon with her father. Her husband, Joseph Alston, now
Governor of South Carolina, accompanied her; and she brought her little
son, who, almost as much as his beautiful mother, was the delight of
Burr's heart.
During these torrid weeks the public temper throughout the country rose
with the thermometer.[1187] The popular distrust of Marshall grew into
open hostility. A report of the proceedings, down to the time when Burr
was indicted for treason, was published in a thick pamphlet and sold all
over Virginia and neighboring States. The impression which the people
thus acquired was that Marshall was protecting Burr; for had he not
refused to imprison him until the grand jury indicted the "traitor"?
The Chief Justice estimated the situation accurately. He knew, moreover,
that prosecutions for treason might be instituted thereafter in other
parts of the country, particularly in New England. The Federalist
leaders in that section had already spoken and written sentiments as
disloyal, essentially, as those now attributed to Burr; and, at that
very time, when the outcry against Burr was loudest, they were beginning
to revive their project of seceding from the Union.[1188] To so
excellent a politician and so far-seeing a statesman as Marshall, it
must have seemed probable that his party friends in New England might be
brought before the courts to answer to the same charge as that against
Aaron Burr.
At all events, he took, at this time, a wise and characteristically
prudent step. Four days after the news of the Chesapeake affair reached
Richmond, the Chief Justice asked his associates on the Supreme Bench
for their opinion on the law of treason as presented in the case of
Aaron Burr. "I am aware," he wrote, "of the unwillingness with which a
judge will commit himself by an opinion on a case not before him, and on
which he has heard no argument. Could this case be readily carried
before the Supreme Court, I would not ask an opinion in its present
stage. But these questions must be decided by the judges separately on
their respective circuits, and I am sure that there would be a strong
and general repugnance to giving contradictory decisions on the same
points. Such a circumstance would be disreputable to the judges
themselves as well as to our judicial system. This suggestion suggests
the propriety of a consultation on new and different subjects and will,
I trust, apologize for this letter."[1189]
Whether a consultation was held during the five weeks that the Burr
trial was suspended is not known. But if the members of the Supreme
Court did not meet the Chief Justice, it would appear to be certain that
they wrote him their views of the American law of treason; and that, in
the crucial opinion which Marshall delivered on that subject more than
two months after he had written to his associates, he stated their
mature judgments as well as his own.
It was, therefore, with a composure, unwonted even for him, that
Marshall again opened court on August 3, 1807. The crowd was, if
possible, greater than ever. Burr entered the hall with his son-in-law,
Governor Alston.[1190] Not until a week later was counsel for the
Government ready to proceed. When at last the men summoned to serve on
the petit jury were examined as to their qualifications, it was all but
impossible to find one impartial man among them--utterly impossible to
secure one who had not formed opinions from what, for months, had been
printed in the newspapers.
Marshall described with fairness the indispensable qualifications of a
juror.[1191] Men were rejected as fast as they were questioned--all had
read the stories and editorial opinions that had filled the press, and
had accepted the deliberate judgment of Jefferson and the editors; also,
they had been impressed by the public clamor thus created, and believed
Burr guilty of treason. Out of forty-eight men examined during the first
day, only four could be accepted.[1192]
While the examination of jurors was in progress, one of the most
brilliant debates of the entire trial sprang up, as to the nature and
extent of opinions formed which would exclude a man from serving on a
jury.[1193]
When Marshall was ready to deliver his opinion, he had heard all the
reasoning that great lawyers could give on the subject, and had listened
to acute analyses of all the authorities. His statement of the law was
the ablest opinion he had yet delivered during the proceedings, and is
an admirable example of his best logical method. It appears, however, to
have been unnecessary, and was doubtless delivered as a part of
Marshall's carefully considered plan to go to the extreme throughout
the trial in the hearing and examination of every subject.[1194]
For nearly two weeks the efforts to select a jury continued. Not until
August 15 were twelve men secured, and most of these avowed that they
had formed opinions that Burr was a traitor. They were accepted only
because impartial men could not be found.
When Marshall finished the reading of his opinion, Hay promptly advised
Jefferson that "the [bi]as of Judge Marshall is as obvious, as if it was
[stam]ped upon his forehead.... [He is] endeavoring to work himself up
to a state of [f]eeling which will enable [him] to aid Burr throughout
the trial, without appearing to be conscious of doing wrong. He
[Marshall] seems to think that his reputation is irretrievably gone, and
that he has now nothing to lose by doing as he pleases.--His concern for
Burr is wonderful. He told me many years ago, when Burr was rising in
the estimation of the republican party, that he was as profligate in
principle, as he was desperate in fortune. I remember his words. They
astonished me.
"Yet," complained Hay, "when the Gr: Jury brought in their bill the
Chief Justice gazed at him, for a long time, without appearing conscious
that he was doing so, with an expression of sympathy & sorrow as strong,
as the human countenance can exhibit without _palpable_ emotion. If Mr.
Burr has any feeling left, yesterday must have been a day of agonizing
humiliation," because the answers of the jurors had been uniformly
against him; and Hay gleefully relates specimens of them.
"There is but one chance for the accused," he continued, "and that is a
good one because it rests with the Chief Justice. It is already hinted,
but not by himself [that] the decision of the Supreme Court will no[t
be] deemed binding. If the assembly of men on [Blennerhassett's is]land,
can be pronounced 'not an overt act' [it will] be so pronounced."[1195]
Hay's opening statement to the jury was his best performance of the
entire proceedings. He described Burr's purpose in almost the very words
of Jefferson's Special Message. The gathering on Blennerhassett's island
was, he said, the overt act; Burr, it was true, was not there at the
time, but his presence was not necessary. Had not Marshall, in the
Bollmann and Swartwout case, said that "if war be actually levied, ...
_all those who perform any part, however minute_, or _however remote
from the scene of action_, and who are actually _leagued in the general
conspiracy, are to be considered_ as _traitors_"?[1196]
The examination of the Government's witnesses began. Eaton took the
stand; but Burr insisted that the overt act must be proved before
collateral testimony could be admitted. So came the first crossing of
swords over the point that was to save the life of Aaron Burr. The
arguments of counsel were brilliant; but neither side forgot the public.
They must thrill the audience as well as convince the court. "There had
been a great deal of war in the newspapers," said Wickham, but
everybody knew "that there had been no war in fact." Wirt insisted on
"unfolding events as they occurred"; that was "the lucid order of nature
and reason." Martin pointed out that Eaton's testimony did not "relate
to any _acts_ committed any where, but to mere declarations out of the
district."[1197] Let the evidence be pertinent. The indictment charged a
specific act, and it must be proved as charged. No man could be expected
suddenly to answer for every act of his life. If Burr had planned to
free Mexico and had succeeded, "he would have merited the applause of
the friends of liberty and of posterity; ... but his friends may now
pray that he may not meet the fate that Washington himself would have
met, if the revolution had not been established."
A mass of decisions, English as well as American, were cited by both
Wirt and Martin;[1198] and when, that night, Marshall began to write his
opinion on whether the overt act must be proved before other testimony
could be received, all authorities had been reviewed, all arguments
made.
Must the overt act be proved before hearing collateral testimony? The
question, said Marshall, was precisely the same as that raised and
decided on the motion to commit Burr. But it came up now under different
circumstances--an indictment had been found "specifying a charge which
is to be proved," and thus "an issue made up which presents a point to
which all the testimony must apply." So Marshall could now "determine,
with some accuracy, on the relevancy of the testimony."
The prosecution contended that the crime consisted of "the fact and the
intention," and that the Government might first prove either of these;
the defense insisted that the overt act must be shown before any
testimony, explanatory or confirmatory of that fact, can be received. To
prove first the fact charged was certainly "the most useful ... and ...
natural order of testimony"; but no fixed rule of evidence required it,
and no case had been cited in which any court had ever "forced" it on
counsel for the prosecution.
The different impressions made upon the minds of the jury by the order
of testimony was important, said Marshall: "Although human laws punish
actions, the human mind spontaneously attaches guilt to intentions."
When testimony had prepared the mind to look upon the prisoner's designs
as criminal, a jury would consider a fact in a different light than if
it had been proved before guilty intentions had been shown. However,
since no rule prevented the prosecution from first proving either, "no
alteration of that arrangement ... will now be directed."
But, continued Marshall, "the intention which is ... relevant in this
stage of the inquiry is the intention which composes a part of the
crime, the intention with which the overt act itself was committed; not
a general evil disposition, or an intention to commit a distinct
[different] fact." Testimony as to such intentions, "if admissible at
all, is received as corroborative or confirmatory testimony," and could
not precede "that which it is to corroborate or confirm."
Apply this rule to Eaton's testimony: it would be admissible only
"so far as his testimony relate[d] to the fact charged in the
indictment, ... to levying war on Blennerhassett's island," and the
"design to seize on New-Orleans, or to separate by force, the western
from the Atlantic states"; but "so far as it respect[ed] other plans to
be executed in the city of Washington, or elsewhere," Eaton's story
would be at best merely "corroborative testimony," and, "if admissible
at any time," could be received only "after hearing that which it is to
confirm."
So let Hay "proceed according to his own judgment." Marshall would not
exclude any testimony except that which appeared to be irrelevant, and
upon this he would decide when it was offered.[1199]
Again Eaton was called to the stand. Before he began his tale, he wished
to explain "the motives" of his "own conduct." Marshall blandly
suggested that the witness stick to Burr's revelations to him. Then,
said Eaton, "concerning any overt act, which goes to prove Aaron Burr
guilty of treason I know nothing.... But concerning Colonel Burr's
expressions of treasonable intentions, I know much."
Notwithstanding Marshall's intimation that Eaton must confine his
testimony to Burr, "the hero of Derne" was not to be denied his
self-vindication; not even the Chief Justice should check his recital of
his patriotism, his glories, his wrongs. Burr had good reasons for
supposing him "disaffected toward the Government"; he then related at
length his services in Africa, the lack of appreciation of his ability
and heroism, the preferment of unworthy men to the neglect of himself.
Finally, Eaton, who "strutted more in buskin than usual," to the
amusement of "the whole court,"[1200] delivered his testimony, and once
more related what he had said in his deposition. Since Marshall had
"decided it to be irrelevant," Eaton omitted the details about Burr's
plans to murder Jefferson, turn Congress out of the Capitol, seize the
Navy, and make himself ruler of America at one bold and bloody
stroke.[1201]
Commodore Truxtun then gave the simple and direct account, already
related, of Burr's conversation with him;[1202] Peter Taylor and Jacob
Allbright once more told their strange tales; and the three Morgans
again narrated the incidents of Burr's incredible acts and statements
while visiting the elder Morgan at Morganza.[1203]
William Love, an Englishman, formerly Blennerhassett's servant--a dull,
ignorant, and timorous creature--testified to the gathering of "_about
betwixt_ twenty and twenty-five" men at his employer's island, some of
whom went "out a gunning." He saw no other arms except those belonging
to his master, nor did he "see any guns presented," as Allbright had
described. Blennerhassett told him that if he would go with him to the
Washita, he should have "a piece of land." Love "understood the object
of the expedition was to settle Washita lands."[1204]
Dudley Woodbridge, once a partner of Blennerhassett, told of Burr's
purchase from his firm of a hundred barrels of pork and fifteen boats,
paid by a draft on Ogden of New York; of Blennerhassett's short
conversation with Woodbridge about the enterprise, from which he
inferred that "the object was Mexico"; of his settlement with
Blennerhassett of their partnership accounts; of Blennerhassett's
financial resources; and of the characteristics of the man--"very
nearsighted," ignorant of military affairs, a literary person, a chemist
and musician, with the reputation of having "every kind of sense but
common sense."
The witness related his observation of the seizure at Marietta of Burr's
few boats and provisions by the Ohio militia, and the sale of them by
the Government; of the assemblage of the twenty or thirty men on
Blennerhassett's island; of their quiet, orderly conduct; of Comfort
Tyler's declaration "that he would not resist the constituted
authorities, but that he would not be stopped by a mob"; of Mrs.
Blennerhassett's taking part of her husband's library with her when she
followed him, after the flight of the terrified little band from the
island; and of the sale of the remainder of the cultivated visionary's
books.[1205]
Simeon Poole, who had been sent by Governor Tiffin of Ohio to arrest
Blennerhassett, said that he was not on the island, but from dusk until
ten o'clock watched from a concealed place on the Ohio shore. He saw a
few men walking about, who during the night kindled a fire, by the light
of which it seemed to Poole that some of them were "armed." He could not
be sure from where he watched, but they "looked like sentinels."
However, Poole "could not say whether the persons ... were not merely
loitering around the fire." There were some boats, he said, both big
and little. Also, when anybody wanted to cross from the Ohio side,
the acute Poole thought that "a watchword" was given. The night
was cold, the rural sleuth admitted, and it was customary to build
fires on the river-bank. He observed, however, another suspicious
circumstance--"lanterns were passing ... between the house and boats....
Most of the people were without guns," he admitted; but, although he
could not see clearly, he "apprehended that some of them had
guns."[1206]
Morris P. Belknap, an Ohio business man, testified that he had hailed a
boat and been taken to the island on the night when the gathering and
flight took place.[1207] He saw perhaps twenty men in the house; "two or
three ... near the door, had rifles, and appeared to be cleaning them.
These were all the arms I saw." He also observed two or three
boats.[1208]
Edmund P. Dana testified that, with two other young men, he had gone in
a skiff to the island on that war-levying night.[1209] In the hall he
saw about "fifteen or sixteen" men--"one of them was running some
bullets." Dana was shown to another room where he met "colonel Tyler,
Blennerhassett, Mr. Smith of New-York ... and three or four other
gentlemen." He had met Tyler the day before, and was now "introduced to
Mr. Smith and Doctor M'Castle[1210] who had his lady ... there." The men
in the hall "did not appear to be alarmed" when Dana and his companions
came in. Dana "never saw colonel Burr on the island."[1211]
The Government's counsel admitted that Burr was in Kentucky at that
time.[1212]
Such was the testimony, and the whole of it, adduced to support the
charge that Burr had, at Blennerhassett's island, on December 13, 1806,
levied war against the United States. Such was the entire proof of that
overt act as laid in the indictment when Marshall was called upon to
make that momentous decision upon which the fate of Aaron Burr depended.
The defense moved that, since no overt act was proved as charged,
collateral testimony as to what had been said and done elsewhere should
not be received. Wickham opened the argument in an address worthy of
that historic occasion. For nearly two days this superb lawyer spoke.
Burr's counsel would, he said, have preferred to go on, for they could
"adduce ... conclusive testimony" as to Burr's innocence. But only seven
witnesses out of "about one hundred and forty" summoned by the
Government had been examined, and it was admitted that these seven had
given all the testimony in existence to prove the overt act.
If that overt act had not been established and yet the more than one
hundred and thirty remaining witnesses were to be examined, it was
manifest that "weeks, perhaps months," would elapse before the
Government completed its case. It was the unhealthy season, and it was
most probable that one or more jurors would become ill. If so, said
Wickham, "the cause must lie over and our client, innocent, may be
subjected to a prolongation of that confinement which is in itself ...
punishment." Yet, after all this suffering, expense, and delay, the
result must be the same as if the evidence were arrested now, since
there was no testimony to the overt act other than that already given.
[Illustration: _John Wickham_]
Did that testimony, then, prove the overt act of levying war on the
United States? Those who wrote the Constitution "well knew the dreadful
punishments inflicted and the grievous oppressions produced by [the
doctrine of] constructive treasons in other countries." For this reason,
truly declared Wickham, the American Constitution explicitly defined
that crime and prescribed the only way it could be proved. This could
not be modified by the common law, since the United States, as a Nation,
had not adopted it; and the purpose of the Constitution was to destroy,
as far as America was concerned, the British theory of treason. The
Constitution "explains itself," said Wickham; under it treason is a
newly created offense against a newly created government. Even the
Government's counsel "will not contend that the words [in the
Constitution concerning treason] used in their natural sense," can
embrace the case of a person who never committed an act of hostility
against the United States and was not even present when one was
committed;[1213] otherwise what horrible cruelties any Administration
could inflict on any American citizen.
The Supreme Court, in the case of Bollmann and Swartwout, had, indeed,
pronounced a "_dictum_" to the contrary, said Wickham, but that had been
in a mere case of commitment; the present point did not then come before
the court; it was not argued by counsel. So Marshall's objectionable
language in that case was not authority.[1214]
It was only by the doctrine of constructive treason that Burr could be
said to be at Blennerhassett's island at the time charged--the doctrine
that "in treason all are principals," and that, by "construction of
law," he was present, although in reality he was hundreds of miles away.
But this was the very doctrine which the Constitution prohibited from
ever being applied in America.
If Burr "conspired to levy war against the United States, and ... the
war was carried on by others in his absence, his offense can only be
punished by _a special indictment charging the facts as they existed_."
The prosecution "should at once withdraw their indictment as it does
not contain a specification that can be supported by the
evidence."[1215]
Edmund Randolph followed Wickham, but added nothing to his rich and
solid argument. Addressing Marshall personally, Randolph exclaimed:
"Amidst all the difficulties of the trial, I congratulate Your Honour on
having the opportunity of fixing the law, relative to this peculiar
crime, on grounds which will not deceive, and with such regard for human
rights, that we shall bless the day on which the sentence was given, to
prevent the fate of Stafford."[1216]
When Randolph closed, on Friday, August 21, Hay asked Marshall to
postpone further discussion until Monday, that counsel for the
Government might prepare their arguments.[1217] Burr's attorneys stoutly
objected, but Marshall wisely granted Hay's request.[1218] "Did you not
do an unprecedented thing," a friend asked Marshall, "in suspending a
criminal prosecution and granting two days, in the midst of the argument
on a point then under discussion, for counsel to get ready to speak upon
it?" "Yes," replied the Chief Justice, "I did and I knew it. But if I
had not done so I should have been reproached with not being _disposed_
to give the prosecutors an opportunity to answer."[1219]
Saturday and Sunday were more than time enough to light the fires of
MacRae's Scotch wrath. His anger dominated him to such an extent that he
became almost incoherent.[1220] Burr not a principal! "Let all who are
in any manner concerned in treason be principals," and treason will be
suppressed.[1221] MacRae, speaking the language of Jeffreys, had, in his
rage, forgotten that he had immigrated to America.
On Tuesday, August 25, although the court opened at nine o'clock,[1222]
the heat was so oppressive that nothing but the public interest--now
reaching the point of hysteria--could have kept the densely packed
audience in the stifling hall.[1223] But the spectators soon forgot
their discomfort. The youthful, handsome William Wirt enraptured them
with an eloquence which has lived for a century. It is impossible to
give a faithful condensation of this charming and powerful address, the
mingled courtesy and boldness of it, the apt phrase, the effective
imagery, the firm logic, the wealth of learning. Only examples can be
presented; and these do scant justice to the young lawyer's speech.
"When we speak of treason, we must call it treason.... Why then are
gentlemen so sensitive ... as if instead of a hall of justice, we were
in a drawing-room with colonel Burr, and were barbarously violating
towards him every principle of decorum and humanity?[1224] This motion
[to arrest the testimony] is a bold and original stroke in the noble
science of defence," made to prevent the hearing of the evidence. But he
knew that Marshall would not "sacrifice public justice, committed to
[his] charge, by aiding this stratagem to elude the sentence of the
law."[1225]
Why had Wickham said so little of American and so much of British
precedents, vanishing "like a spirit from American ground and ...
resurging by a kind of intellectual magic in the middle of the 16th
century, complaining most dolefully of my lord Coke's bowels." It was to
get as far as possible away from Marshall's decision in the case of
Bollmann and Swartwout. If Marshall's opinion had been favorable,
Wickham "would not have ... deserted a rock so broad and solid, to walk
upon the waves of the Atlantic." Wirt made the most of Marshall's
careless language.[1226]
The youthful advocate was impressing Marshall as well as jury and
auditors. "Do you mean to say," asked the Chief Justice, "that it is not
necessary to state in the indictment in what manner the accused, who it
is admitted was absent, became connected with the acts on
Blennerhassett's island?" In reply Wirt condensed the theory of the
prosecution: "I mean to say, that the _count_ is _general_ in modern
cases; that we are endeavoring to make the accused a traitor by
connection, by stating the act which was done, and which act, from his
conduct in the transaction, he made his own; that it is sufficient to
make this charge generally, not only because it is authorized by the
constitutional definition, but because it is conformable to modern
cases, in which the indictments are pruned of all needless
luxuriances."[1227]
Burr's presence at the island necessary! If so, a man might devise and
set in motion "the whole mechanism" of treason, "go a hundred miles"
away, let it be operated by his agents, "and he is innocent, ... while
those whom he has deluded are to suffer the death of traitors." How
infamous! Burr only the accessory and Blennerhassett the principal!
"Will any man believe that Burr who is a soldier bold, ardent, restless
and aspiring, the great actor whose brain conceived and whose hand
brought the plot into operation, should sink down into an accessory and
Blennerhassett be elevated into a principal!"
Here Wirt delivered that passage which for nearly a hundred years was to
be printed in American schoolbooks, declaimed by American youth, and to
become second only to Jefferson's Proclamation, Messages, and letters,
in fixing, perhaps irremovably, public opinion as to Aaron Burr and
Harman Blennerhassett.[1228] But his speech was not all rhetoric.
Indeed, no advocate on either side, except John Wickham and Luther
Martin, approached him in analyses of authorities and closeness of
reasoning.[1229]
"I cannot promise you, sir, a speech manufactured out of tropes and
figures," remarked Botts in beginning his reply. No man better could
have been found to break the force of the address of his young brother
of the bar. Wirt had defaced his otherwise well-nigh perfect address by
the occasional use of extravagant rhetoric, some of which, it appears,
was not reported. Botts availed himself of one such display to make
Wirt's argument seem absurd and trivial: "Instead of the introduction of
a sleeping Venus with all the luxury of voluptuous and wanton nakedness
to charm the reason through the refined medium of sensuality, and to
convince us that the law of treason is with the prosecution by leading
our imaginations to the fascinating richness ... of heaving bosom and
luscious waist, I am compelled to plod heavily and meekly through the
dull doctrines of Hale and Foster." Botts continued, with daring but
brilliant satire, to ridicule Wirt's unhappy rhetoric.[1230] Soon
spectators, witnesses, jury, were in laughter. The older lawyers were
vastly amused. Even Marshall openly enjoyed the humor.
His purpose thus accomplished, Botts now addressed himself to the
evidence, to analyze which he had been assigned. And a perfect job he
made of it. He spoke with impetuous rapidity.[1231] He reviewed the
events at Blennerhassett's island: "There _was war_, when there was
confessedly no war; and it happened although it was prevented!" As to
arms: "No arms were necessary ... they might make war with their
fingers." Yes, yes, "a most bloody war indeed--and ten or twelve boats."
Referring to the flight from Blennerhassett's island, the sarcastic
lawyer observed: "If I run away and hide to avoid a beating I am guilty
and may be convicted of assault and battery!" What "simpletons" the
people of Kentucky and Mississippi had been! "They hunted but could not
find the war," although there it was, right among them![1232]
What was the moving force back of the prosecution? It was, charged
Botts, the rescue of the prestige of Jefferson's Administration. "It has
not only been said here but published in all the newspapers throughout
the United States, that if Aaron Burr should be acquitted it will be the
severest satire on the government; and that the people are called upon
to support the government by the conviction of colonel Burr; ... even
jurymen have been taught by the common example to insult him."
No lie was too contemptible to be published about him. For instance,
"when the grand jury returned a true bill, he was firm, serene, unmoved,
composed--no change of countenance.... Yet the next day they announced
in the newspapers," declared Botts, "that he was in a state of
indescribable consternation and dismay." Worse still, "every man who
dares to look at the accused with a smile or present him the hand of
friendship" is "denounced as a traitor."[1233]
Black but faithful was the picture the fearless lawyer drew of the
Government's conduct.[1234] He dwelt on the devices resorted to for
inflaming the people against Burr, and after they had been aroused, the
demand that public sentiment be heeded and the accused convicted. Was
that the method of justice! If so, where was the boasted beneficence of
democracies? Where the righteousness and wisdom of the people? What did
history tell us of the justice or mercy of the people? It was the people
who forced Socrates to drink hemlock, banished Aristides, compelled the
execution of Admiral Byng. "Jefferson was run down in 1780[1235] by the
voice of the people." If the law of constructive treason were to be
adopted in America and courts were to execute the will of the people,
alas for any man, however upright and innocent, whom public opinion had
been falsely led to condemn.[1236]
Hay, who had been ill for several days[1237] and was badly worn, spoke
heavily for the greater part of two days.[1238] His address, though
dull, was creditable; but he added nothing in thought or authorities to
Wirt's great speech. His principal point, which he repeated
interminably, was that the jury must decide both law and fact. In making
this contention he declared that Marshall was now asked by Burr's
counsel to do the very thing for which Chase had been impeached.[1239]
Time and again the District Attorney insinuated that impeachment would
be Marshall's fate if he did not permit the jury to hear all the
testimony.[1240]
Charles Lee, Attorney-General under President Adams, and an intimate
friend of Marshall,[1241] had joined Burr's legal forces some time
before. In opening his otherwise dry argument, Lee called Marshall's
attention to Hay's threat of impeachment. The exhausted District
Attorney finally denied that he meant such a thing, and Marshall mildly
observed: "I did not consider you as making any personal allusion, but
as merely referring to the law."[1242] Thus, with his kindly
tactfulness, Marshall put the incident aside.
On August 28, Luther Martin closed the debate. He had been drinking even
more than usual throughout the proceedings;[1243] but never was he in
more perfect command of all his wonderful powers. No outline of his
address will be attempted; but a few quotations may be illustrative.
It was the admitted legal right and "indispensable duty" of Burr's
counsel, began Martin, to make the motion to arrest the testimony; yet
for doing so "we have been denounced throughout the United States as
attempting to suppress the truth." Our act "has been held up to the
public and to this jury as conclusive proof of our guilt." Such,
declared the great lawyer, were the methods used to convict Burr.[1244]
He had been in favor, he avowed, of waiving "obvious and undeniable
rights," and of going on with the trial because he was convinced that
all the evidence would not only clear "his friend," but remove the
groundless prejudices which had so wickedly been excited against Burr.
But he had yielded to the judgment of his associates that the plan
adopted was more conformable to law.
"I shall ever feel the sincerest gratitude to heaven, that my life has
been preserved to this time, and that I am enabled to appear ... in his
defense." And if his fellow counsel and himself should be "successful in
rescuing a gentleman, for whom I with pleasure avow my friendship and
esteem, from the fangs of his persecutors ... what dear delight will my
heart enjoy!"[1245] Martin thanked Heaven, too, for the boon of being
permitted to oppose the "destructive" doctrine of treason advanced by
the Government. For hours he analyzed the British decisions which he
"thanked God ... are not binding authority in this country." He
described the origin and growth of the doctrine of constructive treason
and defined it with clearness and precision.[1246] It was admitted that
Burr was not actually present at the time and place at which the
indictment charged him with having committed the crime; but, according
to the Government, he was "constructively" present.
With perfect fearlessness Martin attacked Marshall's objectionable
language in the Bollmann and Swartwout opinion from the Supreme Bench:
"As a binding judicial opinion," he accurately declared, "it ought to
have no more weight than the ballad of Chevy Chase."[1247] Deftly he
impressed upon Marshall, Hay's threat of impeachment if the Chief
Justice should presume to decide in Burr's favor.[1248] Lamenting the
popular hostility toward Burr, Martin defied it: "I have with pain heard
it said[1249] that such are the public prejudice against colonel Burr,
that a jury, even should they be satisfied of his innocence, must have
considerable firmness of mind to pronounce him _not guilty_. I have not
heard it without horror.
"God of Heaven! have we already under our form of government (which we
have so often been told is best calculated of all governments to secure
all our rights) arrived at a period when a trial in a court of justice,
where life is at stake, shall be but ... a mere idle ... ceremony to
transfer innocence from the gaol to the gibbet, to gratify popular
indignation excited by bloodthirsty enemies!"
Martin closed by a personal appeal to Marshall: "But if it require in
such a situation firmness in a jury, so does it equally require
fortitude in judges to perform their duty.... If they do not and the
prisoner fall a victim, they are guilty of murder in _foro coeli_
whatever their guilt may be in _foro legis_.... May that God who now
looks down upon us, and who has in his infinite wisdom called you into
existence and placed you in that seat to dispense justice to your fellow
citizens, to preserve and protect innocence against persecution--may
that God so illuminate your understandings that you may _know_ what is
right; and may he nerve your souls with firmness and fortitude to _act_
according to that knowledge."[1250]
The last word of this notable debate had been spoken.[1251] The fate of
Aaron Burr and of American liberty, as affected by the law of treason,
now rested in the hands of John Marshall.
On Monday morning, August 31, the Chief Justice read his opinion. All
Richmond and the multitude of strangers within her gates knew that the
proceedings, which for four months had enchained the attention of all
America, had now reached their climax. Burr's friends were fearful, and
hoped that the laudanum calumny[1252] would "strengthen" Marshall to do
his duty.[1253] For the moment the passions of the throng were in
abeyance while the breathless spectators listened to Marshall's calm
voice as it pronounced the fateful words.
The opinion of the Chief Justice was one of the longest ever rendered by
him, and the only one in which an extensive examination of authorities
is made. Indeed, a greater number of decisions, treatises, and histories
are referred to than in all the rest of Marshall's foremost
Constitutional opinions. Like every one of these, the Burr opinion was a
state paper of first importance and marked a critical phase in the
development of the American Nation.
Marshall stated the points first to be decided: under the Constitution
can a man be convicted of treason in levying war who was not present
when the war was levied; and, if so, can testimony be received "to
charge one man with the overt acts of others until those overt acts as
laid in the indictment be proved to the satisfaction of the court"? He
made clear the gravity of the Constitutional question: "In every point
of view in which it can be contemplated, [it] is of infinite moment to
the people of this country and their government."[1254]
What was the meaning of the words, "'levying war'?... Had their first
application to treason been made by our constitution they would
certainly have admitted of some latitude of construction." Even so it
was obvious that the term "levying war" literally meant raising or
creating and making war. "It would be affirming boldly to say that those
only who actually constituted a portion of the military force appearing
in arms could be considered as levying war."
Suppose the case of "a commissary of purchases" for an army raised to
make war, who supplied it with provisions; would he not "levy war" as
much as any other officer, although he may never have seen the army? The
same was true of "a recruiting officer holding a commission in the rebel
service, who, though never in camp, executed the particular duty
assigned to him."
But levying war was not for the first time designated as treason by the
American Constitution. "It is a technical term," borrowed from an
ancient English statute[1255] and used in the Constitution in the sense
understood in that country and this at the time our fundamental law was
framed.
Not only British decisions, but "those celebrated elementary writers"
whose "books are in the hands of every student," and upon which "legal
opinions are formed" that are "carried to the bar, the bench and the
legislature"--all must be consulted in ascertaining the import of such
terms.[1256]
Marshall reviewed Coke, Hale, Foster, and Blackstone, and found them
vague upon the question "whether persons not in arms, but taking part in
a rebellion, could be said to levy war independent of that legal rule
[of constructive treason] which attaches the guilt of the principal to
an accessory." Nor were the British decisions more satisfactory: "If in
adjudged cases this question [has] been ... directly decided, the court
has not seen those cases."[1257] To trace the origin of "the doctrine
that in treason all are principals" was unimportant. However "spurious,"
it was the British principle settled for ages.
The American Constitution, however, "comprizes no question respecting
principal and accessory"--the traitor must "truly and in fact levy war."
He must "perform a part in the prosecution of the war."[1258]
Marshall then gingerly takes up the challenge of his opinion in the case
of Bollmann and Swartwout. Since it had been upon the understanding by
the grand jury of his language in that opinion that Burr had been
indicted for treason, and because the Government relied on it for
conviction so far as the prosecution depended on the law, the Chief
Justice took pains to make clear the disputed passages.
"Some gentlemen have argued as if the supreme court had adopted the
whole doctrine of the English books on the subject of accessories to
treason.[1259] But certainly such is not the fact. Those only who
perform a part, and who are leagued in the conspiracy, are declared to
be traitors. To complete the definition _both_ circumstances must occur.
They must 'perform a part' which will furnish the overt act; and they
must be 'leagued in the conspiracy.'"
Did the things proved to have happened on Blennerhassett's island amount
to the overt act of levying war? He had heard, said Marshall, that his
opinion in Bollmann and Swartwout was construed as meaning that "any
assemblage whatever for a treasonable purpose, whether in force or not
in force, whether in a condition to use violence or not in that
condition, is a levying of war." That view of his former opinion had
not, indeed, "been expressly advanced at the bar"; but Marshall
understood, he said, that "it was adopted elsewhere."[1260]
Relying exclusively on reason, all would agree, he continued, "that war
could not be levied without the employment and exhibition of force....
Intention to go to war may be proved by words," but the actual going to
war must "be proved by open deed."[1261]
This natural and reasonable understanding of the term was supported by
the authorities. Marshall then made specific reference to the opinions
of a large number of British writers and judges, and of all American
judges who had passed upon the question. In none of these, he asserted,
had "the words 'levying war' ... received a technical different from
their natural meaning"[1262]--that is, "the employment and exhibition of
force."
Had he overruled all these opinions in the Bollmann-Swartwout case? Had
he, in addition, reversed the natural interpretation of the Constitution
which reason dictated? Surely not! Yet this was what he was now charged
with having done.
But, said Marshall, "an opinion which is to overrule all former
precedents, and to establish a principle never before recognized, should
be expressed in plain and explicit terms." A mere implication was not
enough. Yet this was all there was to justify the erroneous construction
of his opinion in the case of Bollmann and Swartwout--"the omission of
the court to state that the assemblage which constitutes the fact of
levying war ought to be in force."[1263]
Marshall then went into an extended and minute analysis of his
misunderstood opinion, and painfully labored to show that he then
intended to say, as he now did say: that the act of levying war required
"an assemblage in force," and not merely "a secret furtive assemblage
without the appearance of force." The gathering "must be such as to
prove that [war] is its object." If it was not "a military assemblage in
a condition to make war, it was not a levying of war."[1264]
The indictment charged Burr with having levied war at a specific place
and stated the exact manner in which the act had been done; this was
necessary; otherwise the accused could not make adequate defense. So the
indictment "must be proved as laid"; otherwise "the charge of an overt
act would be a mischief instead of an advantage to the accused," and
would lead him from the true cause and nature of the accusation instead
of informing him respecting it.[1265]
The Government insisted that, although Burr "had never been with the
party ... on Blennerhassett's island, and was, at the time, at a great
distance and in a different state,... he was yet legally present, and
therefore may properly be charged in the indictment as being present in
fact." Thus, the question arose "whether in this case the doctrine of
constructive presence can apply." In answering it, John Marshall ended
the contention that so cruel a dogma can ever be applied in America.
This achievement was one of his noblest services to the American
people.[1266]
Again an imposing array of precedents was examined. "The man, who
incites, aids, or procures a treasonable act," is not, merely on that
account, "legally present when that act is committed."[1267] Of course,
other facts might require that a man should be considered to be present
although really absent; for example, if he were on the way there for the
purpose of taking part in the specific act charged, or if he were
stationed near in order to coöperate with those who actually did the
deed, he would be of them and associated with them in the perpetration
of that particular act.[1268] But otherwise he could not be said to be
present.
If this were not so, then a man levying war in one part of the country
might be construed to be present at and taking part in hostilities at
the most distant point of the Republic--a participator in "every overt
act performed anywhere"; and he would be liable to trial and conviction
"in any state on the continent where any overt act has been committed"
by anybody. "He may be proved to be guilty of an overt act laid in the
indictment in which he had no personal participation, by proving that he
advised it, or that he committed other acts."[1269]
If Burr were guilty of treason in connection with the assemblage on
Blennerhassett's island, it was only because Burr procured the men to
meet for the purpose of levying war against the United States. But the
fact that he did procure the treasonable assemblage must be charged in
the indictment and proved by two witnesses, precisely as must actual
physical presence--since the procuring of the assemblage takes the place
of presence at it. "If in one case," declared Marshall, "the presence
of the individual make the guilt of the assemblage his guilt, and in the
other case the procurement by the individual make the guilt of the
assemblage his guilt, then presence and procurement are equally
component parts of the overt act, and equally require two
witnesses."[1270]
Neither presence nor procurement could, therefore, be proved by
collateral testimony: "No presumptive evidence, no facts from which
presence may be conjectured or inferred will satisfy the constitution
and the law." And "if procurement take the place of presence and become
part of the overt act, then no presumptive evidence, no facts from which
the procurement may be conjectured, or inferred, can satisfy the
constitution and the law.
"The mind is not to be led to the conclusion that the individual was
present by a train of conjectures, of inferences, or of reasoning; the
fact must be proved by two witnesses," as required by the Constitution.
"Neither, where procurement supplies the want of presence, is the mind
to be conducted to the conclusion that the accused procured the
assembly, by a train of conjectures or inferences or of reasoning; the
fact itself must be proved by two witnesses."[1271]
To the objection that this could "scarcely ever" be done, since "the
advising or procurement of treason is a secret transaction," the answer
was, said Marshall, "that the difficulty of proving a fact will not
justify conviction without proof." And most "certainly it will not
justify conviction without [one] direct and positive witness in a case
where the constitution requires two." The true inference from "this
circumstance" was "that the advising of the fact is not within the
constitutional definition of the crime. To advise or procure a
treason ... is not treason in itself."[1272]
The testimony which the Government now proposed to offer was to
"prove--what? the overt act laid in the indictment? that the prisoner
was one of those who assembled at Blennerhassett's island? No!" But,
instead, "evidence [of] subsequent transactions at a different place and
in a different state." But such "testimony was not relevant." If it
could be introduced at all, it would be "only in the character of
corroborative or confirmatory testimony, after the overt act has been
proved by two witnesses in such a manner that the question of fact ought
to be left with the jury."[1273]
Before closing, Marshall answered the threats of Hay and Wirt that, if
he decided in favor of Burr, he would be impeached: "That this court
dares not usurp power is most true. That this court dares not shrink
from its duty is not less true.... No man is desirous of becoming the
peculiar subject of calumny. No man, might he let the bitter cup pass
from him without self reproach, would drain it to the bottom. But if he
have no choice in the case, if there be no alternative presented to him
but a dereliction of duty or the opprobrium of those who are denominated
the world, he merits the contempt as well as the indignation of his
country who can hesitate which to embrace."[1274]
Let the jury apply the law as announced to the facts as proved and "find
a verdict of guilty or not guilty as their own consciences shall
direct."
The next morning the petit jury retired, but quickly returned.
Marshall's brother-in-law, Colonel Edward Carrington, foreman, rose and
informed the court that the jury had agreed upon a verdict.
"Let it be read," gravely ordered Marshall.
And Colonel Carrington read the words of that peculiar verdict:
"We of the jury say that Aaron Burr is not proved to be guilty under
this indictment by any evidence submitted to us. We therefore find him
not guilty."[1275]
Instantly Burr, Martin, Wickham, and Botts were on their feet
protesting. This was no verdict, according to law. It was informal,
irregular. In such cases, said Burr, the jury always was sent back to
alter it or else the court itself corrected it; and he accurately stated
the proper procedure.
Discussion followed. Hay insisted that the verdict be received and
recorded as returned. "It was like the whole play," exclaimed Martin,
"Much Ado About Nothing." Of course the verdict must be corrected. Did
the jury mean to "censure ... the court for suppressing irrelevant
testimony?" Unthinkable! And if not, they ought to answer simply
"Guilty" or "Not Guilty."[1276]
Colonel Carrington informed the court that, among themselves, the jury
had said that "they would alter the verdict if it was informal--it was
in fact a verdict of acquittal." Richard E. Parker, also of the jury,
said he never would agree to change the form--they knew what they were
about when they adopted it. Parker was "a violent Jeffersonian
partisan," and Burr's friends had reproved him for accepting such a man
as a member of the jury.[1277]
Soothingly Marshall directed that the verdict "stand on the bill" as the
jury wished it; but, since it was "in effect a verdict of acquittal,"
let "an entry be made on the record of 'Not Guilty.'"
The Chief Justice "politely thanked the jury for their patient attention
during the whole course of this long trial, and then discharged
them."[1278]
A week before Marshall delivered his opinion, an attempt was made to
induce Blennerhassett to betray Burr. On August 23 William Duane, editor
of the _Aurora_, and an intimate friend, supporter, and agent of
Jefferson, approached Blennerhassett for that purpose, and offered to go
to Washington, "now or at any time hereafter," in his behalf. Duane
assured him that the Administration would refuse him (Duane) "nothing he
should ask." But Blennerhassett repulsed Duane's advances.[1279]
Hay, angry and discomfited, entered a _nolle prosequi_ to the
indictments of Dayton, Blennerhassett, and the others for the same
crime; but, in obedience to Jefferson's orders, demanded that all of
them, Burr included, be still held under the charge of treason, that
they might be sent for trial to some place where an overt act might have
been committed.[1280] Marshall, after enduring another long argument,
gently put the application aside because all the conspirators were now
to be tried upon the charge of misdemeanor under the second
indictment.[1281]
Marshall's motives were clearer than ever to Jefferson. "The event has
been what was evidently intended from the beginning of the trial; ...
not only to clear Burr, but to prevent the evidence from ever going
before the world. But this latter case must not take place." Hay must
see to it that "not a single witness be paid or permitted to depart
until his testimony has been committed to writing.... These whole
proceedings will be laid before Congress, that they may ... provide the
proper remedy."[1282]
Jefferson ordered Hay to press for trial on the indictment for
misdemeanor, not with the expectation of convicting Burr, but in the
hope that some sort of testimony would be brought out that would
convict Marshall in the court of public opinion, and perhaps serve as a
pretext for impeaching him. Thus, in the second trial of which we are
now to be spectators, "the chief-justice was occupied in hearing
testimony intended for use not against Burr, but against himself."[1283]
It was for this reason that Marshall, when the trial for misdemeanor
began, threw open wide the doors to testimony.[1284]
Burr's counsel, made unwise by victory, insisted that he should not be
required to give bail, and Marshall, although the point had been decided
and was not open to dispute, permitted and actually encouraged
exasperatingly extended argument upon it.[1285] Burr had submitted to
give bail at the beginning, said Botts, not because it was "demandable
of right," but because he and his counsel "had reason to apprehend
danger ... from the violence and turbulence of the mob."[1286]
Marshall was careful to deliver another long and, except for the
political effect, wholly unnecessary opinion; nor was it directly on the
matter at issue. Counsel floundered through a tangle of questions,
Marshall exhibiting apparent indecision by manifesting great concern,
even on the simplest points.
[Illustration: _John Marshall_
_From the portrait by Robert Matthew Sully, in the Corcoran Gallery of
Art, Washington, D.C._]
Finally, he ordered that Burr "be acquitted and discharged" as to the
indictment for treason, but to be held in five thousand dollars bail
under the indictment for misdemeanor. Jonathan Dayton and William
Langbourne offered themselves and were accepted as sureties; and on
September 3, after nearly nine weeks of imprisonment, Burr walked out of
court unhindered, no longer to be under lock and bar and armed
guard.[1287]
Merry were the scenes in the houses of Richmond society that night;
hilarious the rejoicing about the flowing board of Luther Martin; and,
confused and afflicted with a blurred anger, the patriotic multitude
talked resentfully of Marshall's decision. On one side it was said that
justice had prevailed and persecution had been defeated; on the other,
that justice had been mocked and treason protected. Hay, Wirt, and
MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and
Burr, jubilant and aggressive.
Many conflicting stories sprang up concerning Marshall--his majestic
bearing on the bench, his servility, his courage, his timidity. One of
these has survived: "Why did you not tell Judge Marshall that the people
of America demanded a conviction?" a disgusted Republican asked of Wirt.
"Tell _him_ that!" exclaimed Wirt. "I would as soon have gone to
Herschel, and told him that the people of America insisted that the moon
had horns as a reason why he should draw her with them."[1288]
The captain of the "conspiracy" had never lost heart, and, save when
angered by Marshall's seeming inconsistency and indecision, had
continued to be cheery and buoyant. Steadily he had assured his friends
that, when acquitted, he would again take up and put through his plans.
This thought now dominated him. Blennerhassett, upon visiting his chief,
found Burr "as gay as usual, and as busy in speculations on reorganizing
his projects for action as if he had never suffered the least
interruption," with better prospects for success than ever.[1289]
Quick to press his advantage, Burr the next morning demanded the
production of the letters called for in the subpoena _duces tecum_ to
Jefferson. These had not been forthcoming, and Burr asserted the
President to be in contempt of court and subject to punishment
therefor.[1290] Once more altercation flared up in debate. Hay said he
had one of the letters; that it had not "the most distant bearing on the
subject," and that he might prefer "to be put in prison" rather than
disclose its contents.[1291]
Jefferson had become very nervous about Marshall's order and plainly
feared that the Chief Justice might attempt to enforce it. The thought
frightened him; he had no stomach for a direct encounter. At last he
wished to compose the differences between himself and the obstinate and
fearless, if gentle-mannered, Marshall. So the President directed his
district attorney to tell the United States Marshal to obey no order of
the court and to intimate to the Chief Justice the wisdom of deferring
the vexed question until the next session of Congress.
He wrote, said Jefferson, "in a spirit of conciliation and with the
desire to avoid conflicts of authority between the high branches of the
government which would discredit equally at home and abroad." Naturally
Burr and his counsel would like "to convert this trial into a contest
between the judiciary & Exve Authorities"; but he had not "expected ...
that the Ch. Justice would lend himself to it." Surely Marshall's
"prudence and good sense" would not "permit him to press it."
But if Marshall was determined to attack Jefferson and "issue any
process which [would] involve any act of force to be committed on the
persons of the Exve or heads of departs," Hay was to give Jefferson
"instant notice, and by express if you find that can be done quicker
than by post; and ... moreover ... advise the marshal on his conduct as
he will be critically placed between us."
The "safest way" for that officer to pursue "will be to take no part in
the exercise of any act of force ordered in this case. The powers given
the Exve by the constn are sufficient to protect the other branches from
judiciary usurpation of pre-eminence, & every individual also from
judiciary vengeance, and the marshal may be assured of it's effective
exercise to cover him."
Such was Jefferson's threat to use force against the execution of the
process of the National courts. But the President went on: "I hope
however that the discretion of the C. J. will suffer this question to
lie over for the present, and at the ensuing session of the legislature
[Congress] he may have means provided for giving individuals the benefit
of the testimony of the Exve functionaries in proper cases, without
breaking up the government. _Will not the associate judge_ [Cyrus
Griffin] _assume to divide his court and procure a truce at least in so
critical a conjuncture?_"[1292]
When Hay acknowledged that he had one of the letters from Wilkinson to
Jefferson, a subpoena _duces tecum_ was served on the District
Attorney, notwithstanding his gallant declaration that he would not
produce it even if he were sent to jail for not doing so. Hay then
returned a copy of such parts of the letter as he thought "material for
the purposes of justice," declining to give those passages which
Jefferson deemed "confidential."[1293] Burr insisted on the production
of the entire letter.