produced." Another of that unending series of arguments followed,[1294]
and still another of Marshall's cautious but convincing opinions came
forth. Jefferson, he said, had not forbidden the production of the
letter--the President, in response to the subpoena upon him, had sent
the document to Hay, leaving to the discretion of the District Attorney
the question as to what should be done with it. Of course if, for public
reasons, Jefferson had declined to produce the letter, his "motives may
[have been] such as to restrain the court" from compelling him to do
so.[1295] At least Burr might see the letter now; consideration of the
other features of the controversy would be deferred.[1296]
The distracted Hay, his sour temper made more acid by a "greatly
aggravated influenza," wrote Jefferson of the Government's predicament;
Marshall's remarks from the bench had not been explicit, he said, and
"it is impossible to foresee what his opinion will be unless I could
foresee what will be the state of his nerves. Wirt, who has hitherto
advocated the _integrity_ of the Chief Justice, now abandons him."
The District Attorney dolefully tells the President that he is "very
decidedly of the opinion, that these prosecutions will terminate in
nothing." He thinks the Government will be defeated on the trials for
misdemeanor, and believes the indictments for that offense should be
dismissed and motion made for the commitment of Burr, Blennerhassett,
and Smith to be transferred to some spot where their crime might be
proved. "Instruct me," he begs Jefferson, "specially on this
point."[1297]
Jefferson, now on his vacation at Monticello, directed Hay to press at
Richmond the trial of Burr for misdemeanor. "If defeated it will heap
coals of fire on the head of the judge; if convicted, it will give them
time to see whether a prosecution for treason can be instituted against
him in any, and what court." A second subpoena _duces tecum_ seems to
have been issued against Jefferson,[1298] and he defiantly refused to
"sanction a proceeding so preposterous," by "any notice" of it.[1299]
And there this heated and dangerous controversy appears to have
ended.[1300]
Finally, the hearing of evidence began on the indictment against Burr
for misdemeanor--for having conducted an attack upon Mexico. For seven
weeks the struggle went on. The Government's attorneys showed the
effects of the long and losing fight. Many witnesses were sent home
unexamined or merely leaving their affidavits. Hay acted like the sick
man he really was. The dour MacRae appeared "utterly chop-fallen; an
object of disgust to his friends, and pity to his enemies."[1301] Only
Wirt, with his fine gallantry of spirit, bore himself manfully.
Motions, arguments, opinions continued. One of Marshall's rulings on
the admissibility of evidence moved Blennerhassett to ecstasies.[1302]
More than fifty witnesses were examined, the heavy preponderance of the
evidence clearly showing that Burr's purpose and expectations had been
to settle the Washita lands and, in case the United States went to war
with Spain, and _only in that event_, to lead a force against the
Spaniards. No testimony whatever was given tending to disclose any
hostile plans against the United States, or even for an attack upon
Mexico without war between America and Spain, except that of Wilkinson,
Eaton, Taylor, Allbright, and the Morgans, as already set out. One
witness also told of a wild and fanciful talk by the eccentric and
imaginative Blennerhassett.[1303]
The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a
despicable light,[1304] and Eaton appeared more fantastic than ever; but
both these heroes put on looks of lofty defiance. The warrior-diplomat
of Algerian fame had now fallen so low in the public esteem that one
disgusted Virginian had threatened to kick him out of a room.[1305]
On September 15, 1807, the District Attorney, by attempting to enter a
_nolle prosequi_ on the indictment of Burr for misdemeanor, tried to
prevent the jury from rendering a verdict.[1306] One member of the jury
wanted that body to return a special finding; but his associates would
have none of it, and in half an hour they reported a straight verdict of
"Not Guilty."[1307]
Hay dismissed further proceedings against Smith and Blennerhassett on
the indictments for misdemeanor, and then moved to commit Burr and his
associates upon the charge of treason by "levying war" within the
jurisdiction of the United States Court for the District of Ohio.[1308]
On this motion, Marshall, as an examining magistrate, gave the
Government wide scope in the introduction of testimony, to the immense
disgust of the triply accused men. Blennerhassett thought that Marshall
was conciliating "public prejudice."[1309] Burr told his counsel that
the Chief Justice "did not for two days together understand either the
questions or himself ... and should in future be put right by strong
language." So angered was he with Marshall's "wavering," that at times
"Burr ... would not trust himself to rise up to sum up and condense the
forces displayed by his counsel, into compact columns, after the
engagement, toward the close of the day, as is generally his
practice."[1310]
Just at this time appeared a pamphlet[1311] by Marshall's
brother-in-law, Joseph Hamilton Daveiss. Jefferson had removed him from
the office of United States Attorney for the District of Kentucky
because of Daveiss's failure in his attacks on Burr, and the revengeful
Federalist lawyer and politician retaliated by abusing the President,
Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's
sudden admission of evidence, some saw a direct connection; the previous
knowledge Marshall must have had of his brother-in-law's intended
assault, inferred because of "the well-known spirit of clanship and
co-operation with which the Marshalls and all their connections are so
uniformly animated," showed, it was alleged, that the Chief Justice was
working with his kinsman to bring down in indiscriminate ruin,
Jefferson, Burr, and Wilkinson together.
The last volume of Marshall's "Life of Washington," that "five volumed
libel," as Jefferson branded the biography, had recently appeared.
Blennerhassett, who, in expressing his own opinions, usually reflected
those of his associates, had "no doubt" that the President's perusal of
Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a
more deadly hatred of the Marshall faction than he has ever conceived of
all the Burrites he ever heard of."[1313]
The President's partisans in Virginia were prompt to stoke the furnace
of his wrath. William Thompson of Petersburgh[1314] wrote a brief "view"
of the Burr trial and sent "the first 72. pages" to Jefferson, who read
them "with great satisfaction" and clamored for more.[1315] Marshall's
conduct should indeed fill everybody "with alarm," wrote Jefferson in
reply. "We had supposed we possessed fixed laws to guard us equally
against treason & oppression. But it now appears we have no law but the
will of the judge. Never will chicanery have a more difficult task than
has been now accomplished to warp the text of the law to the will of him
who is to construe it. Our case too is the more desperate as to attempt
to make the law plainer by amendment is only throwing out new materials
for sophistry."[1316]
The Federalists in Washington, fast dwindling in power and number,
experienced as much relief as their chronic melancholia permitted them
to enjoy. "Had the late vice president and two senators been convicted
and executed for treason, it would in the opinion of Europe, have
reflected disgrace upon our country," notes Senator Plumer in his
diary.[1317]
Hay, on the other hand, thought that "a correct and perspicuous legal
history of this trial would be a valuable document in the hands of
intelligent legislators," but that "among others it might perhaps do
mischief. It might produce a sentiment toward all judicial system and
law itself, the operation of which might perhaps be fatal to the
tranquillity and good order of Society."[1318]
On October 20, Marshall delivered his last opinion in the Burr trials.
It was upon the Government's motion to commit Burr and his associates
for treason and misdemeanor committed on the dismal island at the mouth
of the Cumberland, where Burr had first greeted his little band of
settlers and potential adventurers. He must grant the motion, Marshall
said, "unless it was perfectly clear that the act was innocent." If
there was any doubt, the accused must be held. The Chief Justice then
carefully analyzed all the evidence.[1319] He concluded that Burr's
purposes were to settle the Washita lands and to invade Mexico if
opportunity offered, perhaps, however, only in the event of war with
Spain. But whether this was so ought to be left to the jury; Marshall
would "make no comment upon it which might, the one way or the other,
influence their judgment."[1320] He therefore would commit Burr and
Blennerhassett "for preparing and providing the means for a military
expedition" against Spain.
"After all, this is a sort of drawn battle," Burr informed Theodosia.
"This opinion was a matter of regret and surprise to the friends of the
chief justice and of ridicule to his enemies--all believing that it was
a sacrifice of principle to conciliate _Jack Cade_. Mr. Hay immediately
said that he should advise the government to _desist from further
prosecution_."[1321]
If Marshall disappointed Burr, he infuriated Jefferson. In the closing
words of his opinion the Chief Justice flung at the President this
challenge: "If those whose province and duty it is to prosecute
offenders against the laws of the United States shall be of the opinion
that a crime of a deeper dye has been committed, it is at their choice
to act in conformity with that opinion"--in short, let Jefferson now do
his worst.
Marshall's final opinion and his commitment of Burr, under bail, to be
tried in Ohio for possible misdemeanor at the mouth of the Cumberland
should a grand jury indict him for that offense, disgusted Burr. Indeed
he was so "exasperated" that "he was rude and insulting to the
Judge."[1322] Nor did Marshall's friends in Richmond feel differently.
They "are as much dissatisfied," records Blennerhassett, "with his
opinion yesterday as Government has been with all his former decisions.
He is a good man, and an able lawyer, but timid and yielding under the
fear of the multitude, led ... by the vindictive spirit of the party in
power."[1323]
Burr gave the bond of five thousand dollars required by Marshall, but in
Ohio the Government declined to pursue the prosecution.[1324] Burr put
the whole matter out of his mind as a closed incident, left Richmond,
and started anew upon the execution of his one great plan as though the
interruption of it had never happened.
Marshall hurried away to the Blue Ridge. "The day after the commitment
of Col^o. Burr for a misdemeanor I galloped to the mountains," he tells
Judge Peters. During the trial Peters had sent Marshall a volume of his
admiralty decisions; and when he returned from his belated vacation, the
Chief Justice acknowledged the courtesy: "I have as yet been able only
to peep into the book.... I received it while fatigued and occupied with
the most unpleasant case which has ever been brought before a Judge in
this or perhaps any other country, which affected to be governed by
laws, since the decision of which I have been entirely from home.... I
only returned in time to perform my North Carolina Circuit which
terminates just soon enough to enable me to be here to open the Court
for the antient dominion. Thus you perceive I have sufficient bodily
employment to prevent my mind from perplexing itself about the
attentions paid me in Baltimore and elsewhere.[1325]
"I wish I could have had as fair an opportunity to let the business go
off as a jest here as you seem to have had in Pennsylvania: but it was
most deplorably serious & I could not give the subject a different
aspect by treating it in any manner which was in my power. I might
perhaps have made it less serious to my self by obeying the public will
instead of the public law & throwing a little more of the sombre upon
others."[1326]
While Marshall was resting in the mountains, Jefferson was writing his
reply to the last challenge of the Chief Justice.[1327] In his Message
to Congress which he prepared immediately after the Burr trials, he
urged the House to impeach Marshall. He felt it to be his duty, he said,
to transmit a record of the Burr trial. "_Truth & duty alone extort the
observation that wherever the laws were appealed to in aid of the public
safety, their operation was on behalf of those only against whom they
were invoked._" From the record "you will be enabled to judge whether
the defect was in the testimony, or in the laws, or _whether there is
not a radical defect_ in the administration of the law? And wherever it
shall be found the legislature alone can apply or originate the remedy.
"The framers of our constitution certainly supposed they had guarded, as
well their government against destruction by treason, as their citizens
against oppression under pretence of it: and if _the pliability of the
law as construed in the case of Fries,[1328] and it's wonderful
refractoriness as construed in that of Burr, shew that neither end has
been attained, and induce an awful doubt whether we all live under the
same law. The right of the jury too to decide law as well as fact seems
nugatory without the evidence pertinent to their sense of the law._ If
these ends are not attained it becomes worthy of enquiry by what means
more effectual they may be secured?"[1329]
On the advice of his Cabinet,[1330] Jefferson struck out from the
Message the sentences italicized above. But even with this strong
language omitted, Congress was told to impeach Marshall in far more
emphatic terms than those by which Jefferson had directed the
impeachment of Pickering--in plainer words, indeed, than those privately
written to Nicholson ordering the attack upon Chase. Jefferson's assault
on Marshall was also inserted in a Message dealing with probable war
against Great Britain and setting out the continuance of our unhappy
relations with Spain, "to our former grounds of complaint" against which
country had "been added a very serious one."[1331]
Had these grave conditions not engaged the instant attention of
Congress, had public sentiment--even with part of its fury drawn from
Burr to Great Britain--been heeded at the National Capital, there can
be little doubt that John Marshall would have been impeached by the
House that was now all but unanimously Republican, and would have been
convicted by the overwhelmingly Jeffersonian Senate.
Well for Marshall's peace of mind that he had secluded himself in the
solitudes of the Blue Ridge, for never was an American judge subjected
to abuse so unsparing. The Jeffersonian press, particularly the _Aurora_
and the _Enquirer_, the two leading Republican papers, went to the
limits of invective. "Let the judge be impeached," said the _Enquirer_;
the Wickham dinner was recalled--why had Marshall attended it? His
speech on the Jonathan Robins case[1332]--"the price of his seat on the
bench"--was "a lasting monument of his capacity to defend error."
Marshall's "wavering and irresolute spirit" manifested throughout the
trial had disgusted everybody. His attempt to make his rulings
"palatable to all parties" had "so often wrapt them in obscurity" that
it was hard "to understand on which side the court had decided." His
conduct had been inspired by "power illicitly obtained." And think of
his encouragement to Burr's counsel to indulge in "unbounded ... slander
and vilification" of the President! Callender's libel on Adams was
insipid compared with Martin's vulgar billingsgate toward Jefferson! But
that "awful tribunal"--the people--would try Marshall; before it
"evidence will neither be perverted nor suppressed.... The character of
the Chief Justice awaits the issue."[1333]
Another attack soon followed. Marshall's disgraceful conduct "has proved
that the Judges are too independent of the people." Let them be made
removable by the President on the address of Congress. The Chase trial
had shown that impeachment could not be relied on to cleanse the bench
of a judge no matter how "noxious," "ridiculous," "contemptible," or
"immoral" he might be. But "shall an imposter be suffered to preside on
the bench of justice?... Are we to be eternally pestered with that most
ridiculous and dangerous cant; that the people ... are incompetent to
their own government: and that masters must be set over them and that
barriers are to be raised up to protect those masters from the vengeance
of the people?"[1334]
Next came a series of "Letters to John Marshall," which appeared
simultaneously in the _Aurora_ and the _Enquirer_. They were written by
William Thompson under the _nom de guerre_ of "Lucius"; he undoubtedly
was also the author of the earlier attacks on the Chief Justice in the
_Enquirer_. They were widely copied in the Republican press of the
country, and were a veracious expression of public sentiment.
"Your country, sir, owes you a debt of gratitude for former favors,"
which cannot be paid because "the whole stock of national indignation
and contempt would be exhausted, before the half of your just claim
could be discharged." Marshall had earned "infamy and detestation" by
his efforts to erect "tyranny upon the tomb of freedom." His skill "in
conducting the manouvres of a political party," his "crafty cunning" as
a diplomat, had been perpetuated by the "genius" of John Thompson, whose
"literary glory ... will shine when even the splendour of your talents
and your crimes shall have faded forever. When your volumes of apology
for British insolence and cruelty[1335] shall be buried in oblivion, the
'Letters of Curtius'[1336] will ... 'damn you to everlasting fame.'"
Marshall's entire life, according to Lucius, had been that of a sly,
bigoted politician who had always worked against the people. He might
have become "one of the boasted patriots of Virginia," but now he was "a
disgrace to the bench of justice." He was a Jeffreys, a Bromley, a
Mansfield.[1337]
Quickly appeared a second letter to Marshall, accusing him of having
"prostrated the dignity of the chief justice of the United States."
Lucius goes into a lengthy analysis of Marshall's numerous opinions in
the Burr trials. A just review of the proceedings, he said, demonstrates
that the Chief Justice had "exhibited a culpable partiality towards the
accused, and a shameless solicitude ... to implicate the government ...
as negligent of their duty"--something that "a less malicious
magistrate" never would have dared to display.[1338] A third letter
continued the castigation of Marshall and the defense of Jefferson.
Closing an extended argument on this joint theme, Lucius addressed
Marshall thus: "Common sense, and violated justice, cry aloud against
such conduct; and demand against you the enforcement of these laws,
which you refuse to administer."[1339]
All these arraignments of Marshall had, as we have seen,[1340] been
submitted to Jefferson. They rose in the final letter to a climax of
vituperation: "Could I be instrumental in removing you from the
elevation which you have dishonored by ... your crimes, I would still
trace you ... for screening a criminal and degrading a judge" by the
"juggle of a judicial farce." Marshall and Burr were alike "morally
guilty," alike "traitors in heart and in fact.... Such a criminal and
such a judge, few countries ever produced.... You are forever doomed to
blot the fair page of American history, to be held up, as examples of
infamy and disgrace, of perverted talents and unpunished criminality, of
foes to liberty and traitors to your country."[1341]
Incited by similar attacks in the Republican press of Baltimore,[1342]
the more ardent patriots of that place resolved publicly to execute
Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the
morning of November 3, satirical handbills, announcing this act of
public justice, were scattered over the city:
"AWFUL!!!
"The public are hereby notified that four 'choice spirits' are
this afternoon, at 3 o'clock, to be marshaled for execution by
the hangman, on Gallows Hill, in consequence of the sentence
pronounced against them by the unanimous voice of every honest
man in the community.
"The respective crimes for which they suffer are thus stated in
the record:
"First, Chief Justice M. for a repetition of his X.Y.Z. tricks,
which are said to be much aggravated by his _felonins_ [_sic_]
capers in open Court, on the plea of irrelevancy;
"Secondly, His Quid Majesty [Burr], charged with the trifling
fault of wishing to divide the Union, and farm _Baron_
Bastrop's grant;
"Thirdly, B[lennerhassett], the chemist, convicted of
conspiracy to destroy the tone of the public Fiddle;
"Fourthly, and lastly, but not least, _Lawyer_ Brandy-Bottle,
for a false, scandalous, malicious Prophecy, that, before six
months, 'Aaron Burr would divide the Union.'
"N.B. The execution of accomplices is postponed to a future
day."[1343]
Martin demanded of the Mayor the protection of the law. In response,
police were sent to his house and to the Evans Hotel where
Blennerhassett was staying. Burr and the faithful Swartwout, who had
accompanied his friend and leader, were escorted by a guard to the stage
office, where they quickly left for Philadelphia.[1344] Martin's law
students and other friends armed themselves to resist violence to him.
A policeman named Goldsmith notified Blennerhassett that a great mob
was gathering, "had everything prepared for tarring and feathering and
would, ... if disappointed or opposed, tear Martin [and Blennerhassett]
to pieces." The manager of the hotel begged Blennerhassett to hide in
the garret of the hostelry. This the forlorn Irishman did, and beheld
from a window in the attic what passed below.
Shouting and huzzaing men poured by, headed by fifers and drummers
playing the "Rogue's march." Midway in the riotous throng were drawn two
carts containing effigies of Chief Justice Marshall and the other
popularly condemned men "habited for execution.... Two troops of cavalry
patrolled the streets, not to disperse the mob, but to follow and behold
their conduct." At Martin's house the crowd stopped for a moment,
hurling threats and insults, jeering at and defying the armed defenders
within and "the cavalry without."
Making "as much noise as if they were about to destroy the city," these
devotees of justice and liberty proceeded to the place of public
execution. There, amid roars of approval, the effigy of John Marshall,
Chief Justice of the United States, was hanged by the neck until the
executioner pronounced the stuffed figure to be dead. About him dangled
from the gibbet the forms of the "traitors"--Aaron Burr and Harman
Blennerhassett--and also that of Luther Martin, who had dared to defend
them and had thus incurred the malediction of Thomas Jefferson and "the
people."[1345]
In the Senate Giles reported a bill to punish as traitors persons who
permitted or aided in the perpetration of certain acts, "although not
personally present when any such act was done"; and he supported it in
an argument of notable ability. He powerfully attacked Marshall,
analyzed his opinions in the Burr case, contrasted them with those of
other National judges, and pointed out the resulting confusion in the
interpretation of the law. All this was spoken, however, with careful
regard to the rules of parliamentary discussion.[1346]
Legislation was necessary, said Giles; as matters stood, the decisions
of judges on treason were like Congress "enacting our speeches,
interspersed with our laws." With what result? No two judges have yet
delivered the same opinion upon some of the most essential features of
treason. Take for example the British doctrine that, in treason,
accessories are principals. Were they in America? "Judge Chase and
others say they are. Judge Marshall says he does not know whether they
are or not, but his reasoning would go to show that they are not."[1347]
Solely to gratify _vox populi_, the Senate next indulged in a doubtful
performance. An attempt was made to expel Senator John Smith of Ohio.
With only a partial examination, and without allowing him to call a
single witness in his own behalf beforehand, a special Senate
Committee[1348] presented a report concluding with a resolution to expel
Smith because of "his participation in the conspiracy of Aaron Burr
against the peace, union and liberties of the people of the United
States."[1349] This surprising document was the work of John Quincy
Adams,[1350] who apparently adopted the ideas and almost the language of
Lucius.
Burr's conspiracy, wrote Adams, was so evil and was "established by such
a mass of concurring and mutually corroborative testimony" that the
"honor" of the Senate and "the deepest interests of this nation"
required that nobody connected with it should be a member of Congress.
After an unctuous recitation of accepted generalities and a review of
the expulsion of Senator Blount, together with an excellent statement of
the law of parliamentary bodies in such cases, Adams got down to the
business of destroying John Marshall.[1351]
Marshall had "withheld from the jury ... a great part of the testimony
which was essential to [Burr's] conviction.... In consequence of this
suppression of evidence" the trial jury had not been allowed to find a
verdict of guilty against the traitor. Marshall's "decisions, forming
the basis of the issue upon the trials of Burr ... were the sole
inducements upon which the counsel for the United States abandoned the
prosecution against him" (Smith). An American grand jury had charged
Senator Smith with being "an accomplice" of these diabolical plans, and
the safety which Marshall's decisions in the Burr trial had thrown
around Smith and other associates of the traitor "cannot, in the
slightest degree, remove the imputation" which the indictment of Smith
had brought to his door.
"If," wrote Adams, "the daylight of evidence combining one vast
complicated intention, with overt acts innumerable, be not excluded from
the mind by the curtain of artificial rules, the simplest understanding
cannot but see what the subtlest understanding cannot disguise, crimes
before which ordinary treason whitens into virtue" and beyond "the
ingenuity of a demon."
Adams continued: "Whether the transactions proved against Aaron Burr did
or did not amount, in technical language, to an overt act of levying
war, your committee have not a scruple of doubt ... that, but for the
vigilance and energy of the government, and of faithful citizens under
its directions ... in crushing his designs, they would ... have
terminated not only in war, but in a war of the most horrible
description, ... at once foreign and domestic."
To such lengths can popular demand, however unjust, drive even cold,
unemotional, and upright men who are politically ambitious. Adams's
Federalist confrères reacted quickly;[1352] and the _New York Evening
Post_ sharply criticized him.[1353] When the report came up in the
Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut,
attacked it and its author with "unusual virulence." Bayard was
especially severe.[1354] Thus assailed, Adams was cast into black
depression: "It is indeed a fiery ordeal I have to go through. God speed
me through it!" he wrote in his diary that night.[1355]
William Branch Giles cast the deciding vote which defeated Adams's
resolution--the Senate refusing to expel Smith by a vote of 19 yeas to
10 nays,[1356] just one short of the necessary two thirds. The Virginia
Republican Senator attacked the resolution with all his fiery eloquence,
and compelled the admiration even of Adams himself.[1357] "I shall vote
against the resolution," Giles concluded, "solely from the conviction of
the innocence of the accused."[1358]
Herefrom one may judge the temper of the times and the perilous waters
through which John Marshall had been compelled to pilot the craft of
justice. If that "most deliberative legislative body" in our Government,
and the one least affected by popular storms, was so worked upon, one
can perceive the conditions that surrounded the Chief Justice in
overcrowded Richmond during the trial of Aaron Burr, and the real
impending danger for Marshall, after the acquittal of the man whom
Jefferson and the majority had branded with the most hideous infamy.
Fortunate, indeed, for the Chief Justice of the United States, and for
the stability of American institutions, that the machinery of
impeachment was, during these fateful months, locked because the
President, Congress, and the Nation were forced to give their attention
to the grave foreign situation which could no longer be ignored.
Going about his duties in Washington, or, at home, plodding out to the
farm near Richmond, joking or gossiping with friends, and caring for his
afflicted wife, Marshall heard the thunders of popular denunciation
gradually swallowed up in the louder and ever-increasing reverberations
that heralded approaching war with Great Britain. Before the clash of
arms arrived, however, his level common sense and intelligent courage
were again called upon to deal with another of those perplexing
conditions which produced, one by one, opinions from the Supreme Bench
that have become a part of the living, growing, yet stable and enduring
Constitution of the American Nation.
FOOTNOTES:
[1153] _Blennerhassett Papers_: Safford, 298.
Blennerhassett wrote this comment when the trial was nearly over. He
said that two hundred men acted as a bodyguard to Burr on his way to
court each day.
[1154] Parton: _Burr_, 481.
[1155] April 1, 1807, "Register," Plumer MSS. Lib. Cong.
[1156] Swartwout was then twenty-four years old.
[1157] Parton: _Jackson_, I, 335.
[1158] Swartwout challenged Wilkinson after the trial was over.
[1159] See brief account of this incident, including Swartwout's open
letter to Wilkinson, in _Blennerhassett Papers_: Safford, footnote to
459-60.
[1160] Wilkinson to Jefferson, June 17, 1807, "Letters in Relation,"
MSS. Lib. Cong.
[1161] Jefferson to Wilkinson, June 21, 1807, Wilkinson: _Memoirs_, II,
Appendix XXX. Jefferson's letter also contains the following: "You have,
indeed, had a fiery trial at New Orleans, but it was soon apparent that
the clamorous were only the criminal, endeavouring to turn the public
attention from themselves, and their leader, upon any other object....
Your enemies have filled the public ear with slanders, and your mind
with trouble, on that account. The establishment of their guilt,
will ... place you on higher ground in the public estimate, and public
confidence."
[1162] _Burr Trials_, I, 227-53.
[1163] _Ib._ 257-67. Wilkinson was then giving his testimony before the
grand jury.
[1164] _Ib._ 268-72.
[1165] _Ib._ 276-77.
[1166] _Ib._ 277-305.
[1167] See _supra_, 455-56.
[1168] _Burr Trials_, I, 306.
[1169] _Ib._ 308.
[1170] Irving to Miss Fairlie, July 7, 1807, Irving, I, 152.
[1171] _Burr Trials_, I, 312.
[1172] _Ib._ 313-50.
[1173] _Burr Trials_, I, 350-54.
[1174] _Ib._ 354-57.
[1175] See Adams: _U.S._ II, chap. I; Channing: _Jeff. System_, 189-94;
Hildreth, III, 402; and see vol. IV, chap. I, of this work.
[1176] Jefferson's Proclamation, July 2, 1807, _Works_: Ford, X, 434.
[1177] Randolph to Nicholson, June 25, 1807, Adams: _John Randolph_,
222.
[1178] Wilkinson to Jefferson, June 29, 1807, "Letters in Relation,"
MSS. Lib. Cong.
[1179] Jefferson to Congress, _Annals_, 10th Cong. 1st Sess. 9.
[1180] At this time Jefferson wrote curious letters, apparently to
explain, by inference, to his friends in France his want of energy in
the Chesapeake affair and the vigor he displayed in the prosecution of
Burr. "Burr's conspiracy has been one of the most flagitious of which
history will ever furnish an example.... Yet altho' there is not a man
in the U S who is not satisfied of the depth of his guilt, such are the
jealous provisions of our laws in favor of the accused, ... that I
question if he can be convicted." (Jefferson to Du Pont de Nemours, July
14, 1807, _Works_: Ford, X, 461; also see same to Lafayette, same date,
_ib._ 463.) It will be observed that in these letters Jefferson condemns
the laxity of American laws instead of blaming Marshall.
[1181] _Burr Trials_, I, 357-59.
[1182] Irving to Miss Fairlie, July 7, 1807, Irving, I, 153. "The only
reason given for immuring him in this abode of thieves, cut-throats, and
incendiaries," says Irving, "was that it would save the United States a
couple of hundred dollars (the charge of guarding him at his lodgings),
and it would insure the security of his person."
[1183] "Burr lives in great style, and sees much company within his
gratings, where it is as difficult to get an audience as if he really
were an Emperor." (_Blennerhassett Papers_: Safford, 324.) At first,
however, his treatment was very severe. (See Irving to Miss Fairlie,
July 7, 1807, Irving, I, 153.)
[1184] Burr to his daughter, July 3, 1807, Davis, II, 409.
[1185] Burr to his daughter, July 6, 1807, Davis, II, 410.
[1186] Same to same, July 24, 1807, _ib._ 410.
[1187] At a Fourth of July celebration in Cecil County, Maryland, toasts
were proposed wishing for the grand jury "a crown of immortal glory" for
"their zeal and patriotism in the cause of liberty"; hoping that Martin
would receive "an honorable coat of tar, and a plumage of feathers" as a
reward for "his exertions to preserve the Catiline of America"; and
praying that Burr's treachery to his country might "exalt him to the
scaffold, and hemp be his escort to the republic of dust and ashes."
(Parton: _Burr_, 478.)
[1188] See vol. IV, chap. I, of this work. Also _supra_, chap. III.
[1189] Marshall to the Associate Justices of the Supreme Court, June 29,
1807, as quoted by Horace Gray, Associate Justice of the Supreme Court,
in Dillon, I, 72.
[1190] Parton: _Burr_, 483.
[1191] _Burr Trials_, I, 369-70.
[1192] _Ib._ 370-85.
[1193] _Ib._ 385-414.
[1194] _Burr Trials_, I, 414-20.
[1195] Hay to Jefferson, Aug. 11, 1807, Jefferson MSS. Lib. Cong.
[1196] _Burr Trials_, I, 433-51.
[1197] Hay had announced that Eaton's testimony would be to the same
effect as his deposition.
[1198] _Burr Trials_, I, 452-69.
[1199] _Burr Trials_, I, 469-72.
[1200] _Blennerhassett Papers_: Safford, 343.
[1201] It was this farrago, published in every newspaper, that had
influenced the country only less than Jefferson's Special Message to
Congress.
[1202] Commodore Decatur's testimony was almost identical with that of
Truxtun. More convincing still, General Adair, writing before the trial
began, told substantially the same story. (Adair's statement, March,
1807, as quoted in Parton: _Burr_, footnote to 493.)
[1203] For the full Morgan testimony, see _Burr Trials_, I, 497-506.
[1204] _Burr Trials_, I, 514-18.
[1205] _Ib._ 518-26.
[1206] _Burr Trials_, I, 527-28.
[1207] Belknap was undoubtedly one of those whom Poole saw cross the
stream. Woodbridge and Dana were the others.
[1208] _Burr Trials_, I, 529.
[1209] These young men were thinking of joining the expedition.
[1210] The physician who accompanied the party.
[1211] _Burr Trials_, I, 528-29.
[1212] _Ib._ 529.
[1213] _Burr Trials_, I, 533-34.
[1214] _Ib._ 555-56.
[1215] _Burr Trials_, I, 557.
[1216] _Ib._ II, 3-12.
[1217] _Ib._ 25.
[1218] _Ib._ 26-27.
[1219] _Blennerhassett Papers_: Safford, 354-55.
[1220] Alston's description in _ib._ 360.
[1221] _Burr Trials_, II, 42.
[1222] _Blennerhassett Papers_: Safford, 360.
[1223] The temperature was very high throughout the trial. One night
Blennerhassett was overcome by it. (_Ib._ 319.)
[1224] _Burr Trials_, II, 57.
[1225] _Ib._ 57-59.
[1226] _Burr Trials_, II, 61-65.
[1227] _Ib._ 92.
[1228] See _Burr Trials_, II, 96-98.
For this famous passage of Wirt's speech, see Appendix E.
Burr was vastly amused by it and it became "a standing joke with him for
the rest of his life." (See Parton: _Burr_, 506.) But it was no
"joke"--standing or otherwise--to the people. They believed Wirt's
imagery to be a statement of the facts.
[1229] "Wirt raised his reputation yesterday, as high as MacRae sunk his
the day before." (_Blennerhassett Papers_: Safford, 366.)
[1230] _Burr Trials_, II, 123-24.
[1231] See Hay's complaint that Botts talked so fast that he could not
make notes on his points. (_Ib._ 194.)
[1232] _Burr Trials_, II, 128-35.
[1233] _Ib._ 168. Another story "propagated through the crowd" was that
Burr had, by his "emissaries," attempted to poison with laudanum one of
the Government's witnesses--this although the particular witness had
been brought to Richmond to testify only that Wilkinson was not in the
pay of Spain. (_Blennerhassett Papers_: Safford, 367.)
[1234] _Burr Trials_, II, 164-73.
[1235] Botts here refers to the public outcry against Jefferson, while
Governor during the Revolution, that nearly resulted in his impeachment.
(See vol. I, 143-44, of this work.)
[1236] _Burr Trials_, II, 135-92.
[1237] _Ib._ 224.
[1238] _Ib._ 192-236.
[1239] _Ib._ 193-94.
[1240] _Ib._ 200-19, 235.
[1241] See vol. II, 201, 428, of this work.
[1242] _Burr Trials_, II, 237-80.
[1243] Blennerhassett, in his diary, makes frequent mention of Martin's
drinking: "Martin was both yesterday and to-day more in his cups than
usual, and though he spared neither his prudence nor his feelings, he
was happy in all his hits." (_Blennerhassett Papers_: Safford, 438.)
"I ... recommended our brandy ... placing a pint tumbler before him. No
ceremonies retarded the libation." (_Ib._ 377.)
"Luther Martin has just made his final immersion into the daily bath of
his faculties." (_Ib._ 463.)
[1244] _Burr Trials_, II, 260.
[1245] _Burr Trials_, II, 262.
[1246] _Ib._ 275-79; see also 339-42, 344-48.
[1247] _Burr Trials_, II, 334.
[1248] _Ib._ 377.
[1249] One of those who told Martin this was Marshall himself. See
_supra_, 401.
[1250] _Burr Trials_, II, 377-78.
[1251] Randolph made another speech, but it was of no moment.
[1252] See _supra_, footnote to 499.
[1253] _Blennerhassett Papers_: Safford, 367.
[1254] _Burr Trials_, II, 401; also in 4 Cranch, 470.
[1255] 25th, of Edward III.
[1256] _Burr Trials_, II, 402-03; 4 Cranch, 470.
[1257] _Burr Trials_, II, 403; 4 Cranch, 471.
[1258] _Burr Trials_, II, 404-05; 4 Cranch, 472.
[1259] The doctrine that accessories are as guilty as principals.
[1260] _Burr Trials_, II, 406-08; 4 Cranch, 476. This reference is to
Jefferson's explanation of Marshall's opinion in Bollmann and Swartwout,
which Giles and other Republican leaders were proclaiming throughout
Virginia. It had been adopted by the grand jury; and it was this
construction of Marshall's language under which they returned the bills
of indictment for treason. Had the grand jury understood the law to be
as Marshall was now expounding it, Burr would not have been indicted for
treason.
[1261] _Burr Trials_, II, 409; 4 Cranch, 476.
[1262] _Burr Trials_, II, 409-13; 4 Cranch, 477-80.
[1263] _Burr Trials_, II, 415; 4 Cranch, 481.
[1264] _Burr Trials_, II, 415-23; 4 Cranch, 482-88.
[1265] _Burr Trials_, II, 425; 4 Cranch, 490.
[1266] This part of Marshall's opinion (_Burr Trials_, II, 425-34; 4
Cranch, 490-504) is reproduced in full in Appendix F.
[1267] _Burr Trials_, II, 426; 4 Cranch, 492.
[1268] _Burr Trials_, II, 429; 4 Cranch, 494.
[1269] _Burr Trials_, II, 430; 4 Cranch, 495.
[1270] _Burr Trials_, II, 436; 4 Cranch, 500.
[1271] _Burr Trials_, II, 436-37; 4 Cranch, 500. These paragraphs
furnish a perfect example of Marshall's method of statement and
logic--the exact antithesis plainly put, the repetition of precise words
with only the resistless monosyllables, "if" and "then," between them.
[1272] _Burr Trials_, II, 437; 4 Cranch, 501.
[1273] _Burr Trials_, II, 443; 4 Cranch, 506.
[1274] _Burr Trials_, II, 444-45; 4 Cranch, 507.
[1275] _Burr Trials_, II, 446.
[1276] _Burr Trials_, II, 446-47. Martin was right; the verdict should
have been either "guilty" or "not guilty."
[1277] _Blennerhassett Papers_: Safford, 339.
[1278] _Burr Trials_, II, 447.
[1279] _Blennerhassett Papers_: Safford, 356-58; and see Adams: _U.S._
III, 448, 464-65. Duane was known to have unbounded influence with
Jefferson, who ascribed his election to the powerful support given him
by the _Aurora_.
Government agents also tried to seduce Colonel de Pestre, another of
Burr's friends, by insinuating "how handsomely the Col. might be
provided for in the army, if his principles ... were not adverse to the
administration." De Pestre's brother-in-law "had been turned out of his
place as Clerk in the War Office, because he could not accuse the Col.
of Burr-ism." (_Blennerhassett Papers_: Safford, 328-29.)
[1280] _Burr Trials_, II, 448-49.
[1281] _Ib._ 455.
[1282] Jefferson to Hay, Sept. 4, 1807, as quoted in Adams, _U.S._ III,
470; and see _Jefferson_: Randolph, IV, 102.
[1283] Adams: _U.S._ III, 470.
[1284] See _infra_, 524.
[1285] _Burr Trials_, II, 473-80.
[1286] _Ib._ 480. This statement of Botts is of first importance. The
whole proceeding on the part of the Government was conspicuously marked
by a reliance upon public sentiment to influence court and jury through
unceasing efforts to keep burning the fires of popular fear and hatred
of Burr, first lighted by Jefferson's Proclamation and Message. Much
repetition of this fact is essential, since the nature and meaning of
the Burr trial rests upon it.
[1287] _Burr Trials_, II, 481-503.
[1288] Van Santvoord: _Sketches of the Lives and Judicial Services of
the Chief-Justices of the United States_, 379. Yet popular sentiment was
the burden of many of the speeches of Government counsel throughout the
trial.
[1289] _Blennerhassett Papers_: Safford, 402.
[1290] _Burr Trials_, II, 504.
[1291] _Ib._ 511.
[1292] Jefferson to Hay, no date; but Paul Leicester Ford fixes it
between August 7 and 20, 1807. It is, says Ford, "the mere draft of a
letter ... which may never have been sent, but which is of the utmost
importance." (_Works_: Ford, X, 406-07.) It would seem that Jefferson
wrote either to Marshall or Judge Griffin personally, for the first
words of his astounding letter to Hay were: "The _enclosed letter_ is
written in a spirit of conciliation," etc., etc. Whether or not the
President actually posted the letter to Hay, the draft quoted in the
text shows the impression which Marshall's order made on Jefferson.
(Italics the author's.)
[1293] _Burr Trials_, II, 513-14.
[1294] _Ib._ 514-33.
[1295] This remark of Marshall would seem to indicate that Hay had tried
to patch up "a truce" between the President and the Chief Justice, as
Jefferson desired him to do. If so, it soon expired.
[1296] _Burr Trials_, II, 533-37.
[1297] Hay to Jefferson, Sept. 5, 1807, Jefferson MSS. Lib. Cong.
[1298] The printed record does not show this, but Jefferson, in his
letter to Hay, September 7, says: "I received, late last night, your
favor of the day before, and now re-enclose you the subpoena."
[1299] Jefferson to Hay, Sept. 7, 1807, _Works_: Ford, X, 408.
[1300] For some reason the matter was not again pressed. Perhaps the
favorable progress of the case relieved Burr's anxiety. It is possible
that the "truce" so earnestly desired by Jefferson was arranged.
[1301] _Blennerhassett Papers_: Safford, 394.
[1302] "Today, the Chief Justice has delivered an able, full, and
luminous opinion as ever did honor to a judge, which has put an end to
the present prosecution." (_Blennerhassett Papers_: Safford, 403.)
[1303] _Annals_, 10th Cong. 1st Sess. 416-19.
[1304] This appears from the record itself. (See Wilkinson's testimony,
_ib._ 512-44; also testimony of Major James Bruff, _ib._ 589-90.)
Blennerhassett, who usually reported faithfully the general impression,
notes in his diary: "The General exhibited the manner of a sergeant
under a courtmartial, rather than the demeanor of an accusing officer
confronted with his culprit." (_Blennerhassett Papers_: Safford, 422.)
[1305] _Ib._ 418.
[1306] Record, MSS. Archives U.S. Circuit Court, Richmond, Va.
[1307] _Blennerhassett Papers_: Safford, 404.
[1308] _Ib._ 409-10.
[1309] _Ib._ 416.
[1310] _Ib._ 412-13.
[1311] Daveiss: "A View of the President's Conduct Concerning the
Conspiracy of 1806."
[1312] _Blennerhassett Papers_: Safford, 465-66.
[1313] _Ib._ 502.
[1314] The brother of John Thompson, author of "The Letters of Curtius"
which attacked Marshall in 1798. (See vol. II, 395-96, of this work.)
[1315] Thompson's "view" was published as a series of letters to
Marshall immediately after the trial closed. (See _infra_, 533-35.)
[1316] Jefferson to Thompson, September 26, 1807, _Works_: Ford, X,
501-02.
[1317] Plumer, Aug. 15, 1807, "Diary," Plumer MSS. Lib. Cong.
[1318] Hay to Jefferson, Oct. 15, 1807, Jefferson MSS. Lib. Cong.
[1319] This statement is lucid, conspicuously fair, and, in the public
mind, would have cleared Burr of any taint of treason, had not Jefferson
already crystallized public sentiment into an irrevocable conviction
that he was a traitor. (See _Annals_, 10th Cong. 1st Sess. 766-78.)
[1320] _Ib._
[1321] Burr to his daughter, Oct. 23, 1807, Davis, II, 411-12.
[1322] Hay to Jefferson, Oct. 21, 1807, Jefferson MSS. Lib. Cong.
[1323] _Blennerhassett Papers_: Safford, 301. If this were only the
personal opinion of Burr's gifted but untrustworthy associate, it would
not be weighty. But Blennerhassett's views while at Richmond, as
recorded in his diary, were those of all of Burr's counsel and of the
Richmond Federalists.
[1324] No wonder the Government abandoned the case. Nearly all the
depositions procured by Hay under Jefferson's orders demonstrated that
Burr had not the faintest intention of separating the Western States
from the Union, or even of attacking Mexico unless war broke out between
Spain and the United States. See particularly deposition of Benjamin
Stoddert of Maryland, October 9, 1807 (_Quarterly Pub. Hist. and Phil.
Soc. Ohio_, IX, nos. 1 and 2, 7-9); of General Edward Tupper of Ohio,
September 7, 1807 (_ib._ 13-27); and of Paul H. M. Prevost of New
Jersey, September 28, 1807 (_ib._ 28-30).
[1325] See _infra_, 536.
[1326] Marshall to Peters, Nov. 23, 1807, Peters MSS. Pa. Hist. Soc.
[1327] Hay, for the moment mollified by Marshall's award of two thousand
dollars as his fee, had made no further complaint for several days.
[1328] See _supra_, chap. I, 35-36; also vol. II, 429-30, of this work.
[1329] Jefferson's Seventh Annual Message, first draft, _Works_: Ford,
X, 523-24.
[1330] See notes of Gallatin and Rodney, _Works_: Ford, X, footnotes to
503-10.
[1331] Jefferson's Seventh Annual Message, second draft, _Works_: Ford,
X, 517. Blennerhassett, and probably Burr, would not have grieved had
Marshall been impeached. It would be "penance for that timidity of
conduct, which was probably as instrumental in keeping him from imbruing
his hands in our blood as it was operative in inducing him to continue
my vexations [the commitment of the conspirators to be tried in Ohio],
to pacify the menaces and clamorous yells of the cerberus of Democracy
with a sop which he would moisten, at least, with the tears of my
family." (_Blennerhassett Papers_: Safford, 465.)
[1332] See vol. II, 464-71, of this work.
[1333] "Portrait of the Chief Justice," in the Richmond _Enquirer_, Nov.
6, 1807. This article fills more than two closely printed columns. It
discusses, and not without ability, the supposed errors in Marshall's
opinions.
[1334] _Enquirer_, Nov. 24, 1807.
[1335] Marshall's _Life of Washington_.
[1336] See vol. II, 395-96, of this work.
[1337] "Letters to John Marshall, Chief Justice of the United States,"
in the _Aurora_, reprinted in the _Enquirer_, Dec. 1, 1807.
[1338] _Enquirer_, Dec. 4, 1807.
[1339] _Ib._ Dec. 8, 1807.
[1340] See _supra_, 525-26.
[1341] _Enquirer_, Dec. 12, 1807.
[1342] _Blennerhassett Papers_: Safford, 475.
[1343] _Blennerhassett Papers_: Safford, 477.
[1344] Gathering a few dollars from personal friends, Burr sailed for
England, hoping to get from the British Government support for his plans
to revolutionize Mexico. At first all went well. Men like Jeremy Bentham
and Sir Walter Scott became his friends and admirers. But the hand of
Jefferson followed him; and on representations of the American Minister,
the British Government ordered him to leave the United Kingdom
immediately.
Next he sought the ear of Napoleon; but again he was flouted and
insulted by the American diplomatic and consular representatives--he
was, they said, "a fugitive from justice." His last sou gone, ragged and
often hungry, he managed at last, by the aid of one John Reeves, to
secure passage for Boston, where he landed May 4, 1812. Then he
journeyed to New York, where he arrived June 30 in abject poverty and
utterly ruined. But still his spirit did not give way.
Soon, however, fate struck him the only blow that, until now, ever had
brought this iron man to his knees. His passionately beloved little
grandson, Aaron Burr Alston, died in June. In December, another and
heavier stroke fell. His daughter sailed from Charleston, South
Carolina, to join and comfort her father and be comforted by him. Her
ship was lost in a storm, and Theodosia the beautiful, the accomplished,
the adored, was drowned. Then, at last, the heart of Aaron Burr was
broken.
Of the many ridiculous stories told of Burr and his daughter, one was
that her ship was captured by pirates and she, ordered to walk the
plank, did so with her child in her arms "without hesitation or visible
tremor." This absurdity was given credit and currency by Harriet
Martineau. (See Martineau: _Western Travels_, II, 291-92.) Theodosia's
child had died six months before she sailed from Charleston to go to her
father, and she embarked in a pilot boat, about which no pirate would
have troubled himself.
The remainder of Burr's long life was given to the practice of his
profession. His industry, legal learning, and ability, once more secured
for him a good business. In 1824, Marshall ruled on an application to
restore an attorney named Burr to the bar of the Circuit Court of the
District of Columbia from which he had been suspended for unprofessional
conduct. (_Ex parte_ Burr, 9 Wheaton, 529-31.) It has often been
erroneously supposed that this applicant was Aaron Burr: he was,
however, one Levi Burr, a local practitioner, and not related to Aaron
Burr.
It is characteristic of Burr that he remembered the great lawyer who
voluntarily had hastened to defend him at Richmond, and Luther
Martin--aged, infirm, and almost deranged--was taken to the home of
Aaron Burr and tenderly cared for until he died. Burr's marriage, at the
age of seventy-eight, to Madame Jumel was, on his part, inexplicable; it
was the only regrettable but not unworthy incident of the latter years
of his life. (See Shelton: _Jumel Mansion_, 170-74.)
Burr's New York friends were loyal to him to his very last day. His
political genius never grew dim. He early suggested and helped to bring
about the nomination of Andrew Jackson for the Presidency. Thus did he
pay the debt of gratitude for the loyalty with which the rugged
Tennesseean had championed his cause against public opinion and
Administration alike.
During the summer of 1836 his last illness came upon him. When his
physician said that he could live but a few hours longer, a friend at
his bedside asked the supposedly expiring man "whether in the expedition
to the Southwest he had designed a separation of the Union." Believing
himself to be dying, Burr replied: "No! I would as soon have thought of
taking possession of the moon and informing my friends that I intended
to divide it among them." To a man, his most intimate friends believed
this statement to be true.
Finally, on September 14, 1836, Aaron Burr died and was buried near his
father at Princeton, New Jersey, where the parent had presided over, and
the son had attended, that Alma Mater of so many patriots, soldiers, and
statesmen.
For two years his burial place was unmarked. Then, at night-time,
unknown friends erected over his grave a plain marble shaft, bearing
this inscription:
AARON BURR
Born Feb. 6, 1756
Died Sept. 14, 1836
Colonel in the Army of the Revolution
Vice-President of the United States from 1801 to 1805
(_Gulf States Historical Magazine_, II, 379.)
Parton's _Life of Burr_ is still the best story of this strange life.
But Parton must be read with great care, for he sometimes makes
statements which are difficult of verification.
A brief, engaging, and trustworthy account of the Burr episode is _Aaron
Burr_, by Isaac Jenkinson. Until the appearance of Professor McCaleb's
book, _The Aaron Burr Conspiracy_, Mr. Jenkinson's little volume was the
best on that subject. Professor McCaleb's thorough and scholarly study
is, however, the only exhaustive and reliable narrative of that
ambitious plan and the disastrous outcome of the attempted execution of
it.
[1345] _Blennerhassett Papers_: Safford, 480-82; also see _Baltimore
American_, Nov. 4, 5, 6, 1807.
[1346] _Annals_, 10th Cong. 1st Sess. 108-27.
[1347] The bill passed the Senate, but foreign affairs, and exciting
legislation resulting from these, forced it from the mind of the House.
(See vol. IV, chap. I, of this work.)
[1348] John Quincy Adams of Massachusetts, Samuel Maclay of
Pennsylvania, Jesse Franklin of North Carolina, Samuel Smith of
Maryland, John Pope of Kentucky, Buckner Thruston of Kentucky, and
Joseph Anderson of Tennessee. (_Annals_, 10th Cong. 1st Sess. 42.)
[1349] Smith had been indicted for treason and misdemeanor, but Hay had
entered a _nolle prosequi_ on the bills of indictment after the failure
of the Burr prosecution. (_Memoirs, J. Q. A._: Adams, I, 481.)
[1350] Adams had been indulging in political maneuvers that indicated a
courtship of the Administration and a purpose to join the Republican
Party. His course had angered and disgusted most of his former
Federalist friends and supporters, who felt that he had deserted his
declining party in order to advance his political fortunes. If this were
true, his performance in writing the Committee report on the resolution
to expel Smith was well calculated to endear him to Jefferson. Adams
expressed his own views thus: "On most of the great national questions
now under discussion, my sense of duty leads me to support the
administration, and I find myself of course in opposition to the
federalists in general.... My political prospects are declining."
(_Memoirs, J. Q. A._: Adams, I, 497-98.)
The Federalist Legislature of Massachusetts grossly insulted Adams by
electing his successor before Adams's term in the Senate had expired.
Adams resigned, and in March, 1809, President Madison appointed him
Minister to Russia, and later Minister to Great Britain. President
Monroe made the former Federalist his Secretary of State. No Republican
was more highly honored by these two Republican Presidents than was John
Quincy Adams.
[1351] Adams did not, of course, mention Marshall by name. His
castigation of the Chief Justice, however, was the more severe because
of the unmistakable designation of him. (See _Writings, J. Q. A._: Ford,
III, 173-84; also _Annals_, 10th Cong. 1st Sess. 56-63.)
It must be remembered, too, that this attack upon Marshall comes from
the son of the man who, on January 20, 1801, appointed Marshall Chief
Justice. (See vol. II, 552-53, of this work.) But John Quincy Adams soon
came to be one of the stanchest supporters and most ardent admirers that
Marshall ever had. It was peculiarly characteristic of Marshall that he
did not resent the attack of Adams and, for the only time in his
judicial career, actually interested himself in politics in behalf of
Adams. (See vol. IV, chap. IX, of this work.)
[1352] Adams's colleague Senator Pickering was, of course, disgusted
(see his letter to King, Jan. 2, 1808, King, V, 44), and in a pamphlet
entitled "A Review of the Correspondence Between the Hon. John Adams and
the late William Cunningham, Esq." which he published in 1824, Pickering
wrote that the resolution "outraged ... every distinguished lawyer in
America" (see p. 41 of pamphlet). King thought Adams "indiscreet" (see
his letter to Pickering, Jan. 7, 1808, King, V, 50). Plumer declared
that the report "had given mortal offence" in New Hampshire (see _Mass.
Historical Society Proceedings_, XLV, 357). John Lowell asserted that
"justice ... was to be dragged from her seat ... and the eager minister
of presidential vengeance seemed to sigh after the mild mercies of the
star chamber, and the rapid movements of the revolutionary tribunal"
(see his "Remarks" as quoted in _Writings, J. Q. A._: Ford, III,
footnote to 184).
[1353] Jan. 28, 1808, _Memoirs, J. Q. A._: Adams, I, 508; see also
_Writings, J. Q. A._: Ford, III, footnote to 184.
[1354] "He poured himself forth in his two speeches to-day.... It was
all a phillipic upon me." (Jan. 7, 1808, _Memoirs, J. Q. A._: Adams, I,
501.)
[1355] _Ib._
[1356] _Annals_, 10th Cong. 1st Sess. 324.
[1357] "Mr. Giles, in one of the most animated and eloquent speeches I
ever heard him make, declared himself ... against the resolution for
expulsion. He argued the case of Mr. Smith with all his eloquence, and
returned to the charge with increasing warmth until the last moment."
(April 9, 1808, _Memoirs, J. Q. A._: Adams, I, 528.)
[1358] _Annals_, 10th Cong. 1st Sess. 321-24.