The Trial Of Aaron Burr
When, on March 30, 1807, Colonel Aaron Burr, late Vice-President of the
United States, was brought before Chief Justice Marshall in the Eagle
Tavern at Richmond on the charge of treason, there began the greatest
criminal trial in American history and one of the notable trials in the
annals of the law.
"The Burr Conspiracy" still remains after a hundred years an unsolved
enigma. Yet whether Burr actually planned treason against the United
States in the year of grace 1806 is after all a question of somewhat
restricted importance. The essential truth is that he was by nature an
adventurer who, in the words of Hamilton, "believed all things possible
to daring and energy," and that in 1806 he was a bankrupt and a social
outcast to boot. Whether, therefore, his grandiose project of an empire
on the ruins of Spanish dominion in Mexico involved also an effort to
separate some part of the West from the Union is a question which, if it
was ever definitely determined in Burr's own mind, was determined, we
may be sure, quite independently of any moral or patriotic
considerations.
Burr's activities after his term of public office ended in March, 1805,
were devious, complicated, and purposely veiled, involving many men and
spread over a large territory. ¹ Near Marietta on an island in the Ohio
River, Burr came upon Harman Blennerhassett, a genial Irishman living in
a luxurious and hospitable mansion which was making a heavy drain upon
his already diminished resources. Here Burr, by his charm of manner and
engaging conversation, soon won from the simple Irishman his heart and
his remaining funds. He also made the island both a convenient
rendezvous for his adherents in his ambitious schemes and a starting
point for his own extended expeditions, which took him during the latter
part of this year to Natchez, Nashville, St. Louis, Vincennes,
Cincinnati, and Philadelphia, and back to Washington.
¹ An account of the Burr conspiracy will be found in Jefferson and his
Colleagues, by Allen Johnson (in The Chronicles of America).
In the summer of 1806 Burr turned westward a second time and with the
assistance of Blennerhassett he began military preparations on the
latter's island for a mysterious expedition. On the 29th of July, Burr
had dispatched a letter in cipher to Wilkinson, his most important
confederate. The precise terms of this document we shall never know, but
apparently it contained the most amazing claims of the successful
maturing of Burr's scheme: "funds had been obtained," "English naval
protection had been secured," "from five hundred to a thousand men"
would be on the move down the Mississippi by the middle of November.
Unfortunately for Burr, however, Wilkinson was far too expert in the
usages of iniquity to be taken in by such audacious lying as this. He
guessed that the enterprise was on the verge of collapse and forthwith
made up his mind to abandon it.
Meanwhile exaggerated accounts of the size of Burr's following were
filtering to Washington, together with circumstantial rumors of the
disloyalty of his designs. Yet for weeks Jefferson did nothing, until
late in November his alarm was aroused by a letter from Wilkinson, dated
the 21st of October. On the 27th of November the President issued a
proclamation calling upon all good citizens to seize "sundry persons"
who were charged with setting on foot a military expedition against
Spain. Already Burr, realizing that the West was not so hot for disunion
as perhaps he had supposed it to be, began to represent his project as a
peaceful emigration to the Washita, a precaution which, however, came
too late to allay the rising excitement of the people. Fearing the
seizure of their equipment, thirty or forty of Burr's followers under
the leadership of Blennerhassett left the island in four or five
flatboats for New Orleans, on the night of the 10th of December, and a
few days later were joined by Burr himself at the mouth of the
Cumberland. When the little expedition paused near Natchez, on the 10th
of January, Burr was confronted with a newspaper containing a
transcription of his fatal letter to Wilkinson. A week later, learning
that his former ally, Wilkinson, had now established a reign of terror
at New Orleans directed against his followers, and feeling no desire to
test the tender mercies of a court-martial presided over by his former
associate, Burr surrendered himself into the custody of the acting
Governor of Mississippi Territory. But the refusal of the territorial
grand jury to indict him suggested the hope that he might still escape
from the reach of the law. He therefore plunged into the wilderness,
headed for the Spanish border, and had all but reached his destination
when he was recognized and recaptured at Wakefield, Alabama.
Owing to the peculiar and complicated circumstances which led up to it,
Burr's case was from the outset imbued with factional and partisan
politics of the most extreme kind. While the conspiracy was at its
height, Jefferson, though emphatically warned, had refused to lend it
any credence whatever; but when the danger was well over he had thrown
the whole country into a panic, and had even asked Congress to suspend
the writ of habeas corpus. The Federalists and the President's enemies
within his own party, headed by the redoubtable Randolph, were instantly
alert to the opportunity which Jefferson's inexplicable conduct afforded
them. "The mountain had labored and brought forth a mouse," quoted the
supercilious; the executive dragnet had descended to envelop the monster
which was ready to split the Union or at least to embroil its relations
with a friendly power, and had brought up--a few peaceful
agriculturists! Nor was this the worst of the matter, contended these
critics of the Administration, for the real source of the peril had been
the President's own action in assigning the command at New Orleans to
Wilkinson, a pensioner of Spain, a villain "from the bark to the very
core." Yet so far was the President from admitting this error that he
now attributed the salvation of the country to "the soldier's honor" and
"the citizen's fidelity" of this same Wilkinson. Surely, then, the real
defendants before the bar of opinion were Thomas Jefferson and his
precious ally James Wilkinson, not their harried and unfortunate victim,
Aaron Burr!
The proceedings against Burr occupied altogether some seven months,
during which the sleepy little town of Richmond became the cynosure of
all eyes. So famous was the case that it brought thither of necessity or
out of curiosity men of every rank and grade of life, of every species
of renown. The prosecution was in charge of the United States District
Attorney, George Hay--serious, humorless, faithful to Jefferson's
interests, and absolutely devoid of the personal authority demanded by
so grave a cause. He was assisted by William Wirt, already a brilliant
lawyer and possessed of a dazzling elocution, but sadly lacking in the
majesty of years. At the head and forefront of the defense stood Burr
himself, an unerring legal tactician, deciding every move of the great
game, the stake of which for him was life itself. About him were
gathered the ablest members of the Richmond bar: John Wickham, witty and
ingenious, Edmund Randolph, ponderous and pontifical, Benjamin Botts,
learned and sarcastic, while from Baltimore came Luther Martin to aid
his "highly respected friend," to keep the political pot boiling, and
eventually to fall desperately in love with Burr's daughter, the
beautiful Theodosia. Among the 140 witnesses there were also some
notable figures: William Eaton, the hero of Derne, whom Burr's
codefendant, Blennerhassett, describes for us as "strutting about the
streets under a tremendous hat, with a Turkish sash over colored
clothes," and offering up, with his frequent libations in the taverns,
"the copious effusions of his sorrows"; Commodore Truxton, the gallant
commander of the Constellation; General Andrew Jackson, future President
of the United States, but now a vehement declaimer of Burr's
innocence--out of abundant caution for his own reputation, it may be
surmised; Erick Bollmann, once a participant in the effort to release
Lafayette from Olmutz and himself just now released from durance vile on
a writ of habeas corpus from the Supreme Court; Samuel Swartwout,
another tool of Burr's, reserved by the same beneficent writ for a
career of political roguery which was to culminate in his swindling the
Government out of a million and a quarter dollars; and finally the
bibulous and traitorous Wilkinson, "whose head" as he himself owned,
"might err," but "whose heart could not deceive." Traveling by packet
from New Orleans, this essential witness was heralded by the impatient
prosecution, till at last he burst upon the stage with all the éclat of
the hero in a melodrama--only to retire baffled and perplexed, his
villainy guessed by his own partisans.
By the Constitution treason against the United States consists "only in
levying war against them, or in adhering to their enemies, giving them
aid and comfort," and no person may be convicted of it "unless on the
testimony of two witnesses to the same overt act, or on confession in
open court." The motion to commit Burr for treason thus raised at the
outset the question whether in this case an "overt act" existed.
Marshall, who held that no evidence had been shown to this effect,
denied the motion, but consented to commit the prisoner on the lesser
charge that he had attempted a military expedition against Spain. As
this was a bailable offense, however, Burr was soon at liberty once
more.
Nor was this the only respect in which the preliminary proceedings
sounded a note of antagonism between the Chief Justice and the
Administration which was to recur again and yet again in the months
following. Only a few weeks earlier at Washington, Marshall had, though
with some apparent reluctance, ordered the release of Bollmann and
Swartwout, two of Burr's tools, from the custody of the Federal
authorities. Alluding in his present opinion to his reason for his
earlier action, he wrote: "More than five weeks have elapsed since the
opinion of the Supreme Court has declared the necessity of proving the
fact, if it exists. Why is it not proved? To the executive government is
entrusted the important power of prosecuting those whose crimes may
disturb the public repose or endanger its safety. It would be easy, in
much less time than has intervened since Colonel Burr has been alleged
to have assembled his troops, to procure affidavits establishing the
fact."
This sharp criticism brought an equally sharp retort from Jefferson, to
which was added a threat. In a private letter of the 20th of April, the
President said: "In what terms of decency can we speak of this? As if an
express could go to Natchez or the mouth of the Cumberland and return in
five weeks, to do which has never taken less than twelve!... But all the
principles of law are to be perverted which would bear on the favorite
offenders who endeavor to overturn this odious republic!... All this,
however, will work well. The nation will judge both the offender and
judges for themselves.... They will see then and amend the error in our
Constitution which makes any branch independent of the nation.... If
their [the judges] protection of Burr produces this amendment, it will
do more good than his condemnation would have done." Already the case
had taken on the color of a fresh contest between the President and the
Chief Justice.
On the 22d of May the United States Court for the Fifth Circuit and the
Virginia District formally convened, with Marshall presiding and Judge
Griffin at his side. On the same day the grand jury was sworn, with John
Randolph as foreman, and presently began taking testimony. Unluckily for
the prosecution, the proceedings now awaited the arrival of Wilkinson
and the delay was turned to skillful use by the defense to embroil
further the relations between the Chief Justice and the President. With
this end in view, Burr moved on the 9th of June that a subpœna duces
tecum issue to Jefferson requiring him to produce certain papers,
including the famous cipher letter to Wilkinson. The main question
involved, of course, was that of the right of the Court under any
circumstances to issue a subpœna to the President, but the abstract
issue soon became involved with a much more irritating personal one.
"This," said Luther Martin, who now found himself in his element, "this
is a peculiar case, sir. The President has undertaken to prejudge my
client by declaring that 'of his guilt there is no doubt.' He has
assumed to himself the knowledge of the Supreme Being himself and
pretended to search the heart of my highly respected friend. He has
proclaimed him a traitor in the face of the country which has rewarded
him. He has let slip the dogs of war, the hell-hounds of persecution, to
hunt down my friend. And would this President of the United States, who
has raised all this absurd clamor, pretend to keep back the papers which
are wanted for this trial, where life itself is at stake?"
Wirt's answer to Martin was also a rebuke to the Court. "Do they [the
defense] flatter themselves," he asked, "that this court feel political
prejudices which will supply the place of argument and innocence on the
part of the prisoner? Their conduct amounts to an insinuation of the
sort. But I do not believe it.... Sir, no man, foreigner or citizen, who
hears this language addressed to the court, and received with all the
complacency at least which silence can imply, can make any inference
from it very honorable to the court." These words touched Marshall's
conscience, as well they might. At the close of the day he asked counsel
henceforth to "confine themselves to the point really before the
court"--a request which, however, was by no means invariably observed
through the following days.
A day or two later Marshall ruled that the subpœna should issue, holding
that neither the personal nor the official character of the President
exempted him from the operation of that constitutional clause which
guarantees accused persons "compulsory process for obtaining witnesses"
in their behalf. The demand made upon the President, said the Chief
Justice, by his official duties is not an unremitting one, and, "if it
should exist at the time when his attendance on a court is required, it
would be sworn on the return of the subpœna and would rather constitute
a reason for not obeying the process of the court than a reason against
its being issued." Jefferson, however, neither obeyed the writ nor swore
anything on its return, though he forwarded some of the papers required
to Hay, the district attorney, to be used as the latter might deem best.
The President's argument was grounded on the mutual independence of the
three departments of Government; and he asked whether the independence
of the Executive could long survive "if the smaller courts could bandy
him from pillar to post, keep him constantly trudging from North to
South and East to West, and withdraw him entirely from his executive
duties?" The President had the best of the encounter on all scores. Not
only had Marshall forgotten for the nonce the doctrine he himself had
stated in Marbury vs. Madison regarding the constitutional discretion of
the Executive, but what was worse still, he had forgotten his own
discretion on that occasion. He had fully earned his rebuff, but that
fact did not appreciably sweeten it.
On the 24th of June the grand jury reported two indictments against
Burr, one for treason and the other for misdemeanor. The former charged
that Burr, moved thereto "by the instigation of the devil," had on the
10th of December previous levied war against the United States at
Blennerhassett's island, in the county of Wood, of the District of
Virginia, and had on the day following, at the same place, set in motion
a warlike array against the city of New Orleans. The latter charged that
a further purpose of this same warlike array was an invasion of Mexico.
Treason not being a bailable offense, Burr had now to go to jail, but,
as the city jail was alleged to be unhealthful, the Court allowed him to
be removed to quarters which had been proffered by the Governor of the
State in the penitentiary just outside the city. Burr's situation here,
writes his biographer, "was extremely agreeable. He had a suite of rooms
in the third story, extending one hundred feet, where he was allowed to
see his friends without the presence of a witness. His rooms were so
thronged with visitors at times as to present the appearance of a levee.
Servants were continually arriving with messages, notes, and inquiries,
bringing oranges, lemons, pineapples, raspberries, apricots, cream,
butter, ice, and other articles--presents from the ladies of the city.
In expectation of his daughter's arrival, some of his friends in town
provided a house for her accommodation. The jailer, too, was all
civility." ¹ Little wonder that such goings-on are said to have "filled
the measure of Jefferson's disgust."
¹ Parton's Life and Times of Aaron Burr (13th Edition, N. Y., 1860), p.
479.
The trial itself opened on Monday, the 3d of August. The first business
in hand was to get a jury which would answer to the constitutional
requirement of impartiality--a task which it was soon discovered was
likely to prove a difficult one. The original panel of forty-eight men
contained only four who had not expressed opinions unfavorable to the
prisoner, and of these four all but one admitted some degree of
prejudice against him. These four were nevertheless accepted as jurors.
A second panel was then summoned which was even more unpromising in its
make-up, and Burr's counsel began hinting that the trial would have to
be quashed, when Burr himself arose and offered to select eight out of
the whole venire to add to the four previously chosen. The offer was
accepted, and notwithstanding that several of the jurors thus obtained
had publicly declared opinions hostile to the accused, the jury was
sworn in on the 17th of August.
At first glance Burr's concession in the selecting of a jury seems
extraordinary. But then, why should one so confident of being able to
demonstrate his innocence fear prejudice which rested on no firmer basis
than ignorance of the facts? This reflection, however, probably played
small part in Burr's calculations, for already he knew that if the
contemplated strategy of his counsel prevailed the case would never come
before the jury.
The first witness called by the prosecution was Eaton, who was prepared
to recount the substance of numerous conversations he had held with Burr
in Washington in the winter of 1805-6, in which Burr had gradually
unveiled to him the treasonable character of his project. No sooner,
however, was Eaton sworn than the defense entered the objection that his
testimony was not yet relevant, contending that in a prosecution for
treason the great material fact on which the merits of the entire
controversy pivots was the overt act, which must be "an open act of
war"; just as in a murder trial the fact of the killing, the corpus
delicti, must be proved before any other testimony was relevant, so in
the pending prosecution, said they, no testimony was admissible until
the overt act had been shown in the manner required by the Constitution.
The task of answering this argument fell to Wirt, who argued, and
apparently with justice, that the prosecution was free to introduce its
evidence in any order it saw fit, provided only that the evidence was
relevant to the issue raised by the indictment, and that if an overt act
was proved "in the course of the whole evidence," that would be
sufficient. The day following the Court read an opinion which is a model
of ambiguous and equivocal statement, but the purport was fairly clear:
for the moment the Court would not interfere, and the prosecution was
free to proceed as it thought best, with the warning that the Damocles
sword of "irrelevancy" was suspended over its head by the barest thread
and might fall at any moment.
For the next two days the legal battle was kept in abeyance while the
taking of testimony went forward. Eaton was followed on the stand by
Commodore Truxton, who stated that in conversation with him Burr had
seemed to be aiming only at an expedition against Mexico. Then came
General Morgan and his two sons, who asserted their belief in the
treasonable character of Burr's designs. Finally a series of witnesses,
the majority of them servants of Blennerhassett, testified that on the
evening of December 10, 1806, Burr's forces had assembled on the island.
This line of testimony concluded, the prosecution next indicated its
intention of introducing evidence to show Burr's connection with the
assemblage on the island, when the defense sprang the coup it had been
maturing from the outset. Pointing out the notorious fact that on the
night of the 10th of December Burr had not been present at the island
but had been two hundred miles away in Kentucky, they contended that,
under the Constitution, the assemblage on Blennerhassett's island could
not be regarded as his act, even granting that he had advised it, for,
said they, advising war is one thing but levying it is quite another. If
this interpretation was correct, then no overt act of levying war,
either within the jurisdiction of the Court or stated in the indictment,
had been, or could be, shown against Burr. Hence the taking of
evidence--if not the cause itself, indeed--should be discontinued.
The legal question raised by this argument was the comparatively simple
one whether the constitutional provision regarding treason was to be
interpreted in the light of the Common Law doctrine that "in treason all
are principals." For if it were to be so interpreted and if Burr's
connection with the general conspiracy culminating in the assemblage was
demonstrable by any sort of legal evidence, then the assemblage was his
act, his overt act, proved moreover by thrice the two witnesses
constitutionally required! Again it fell to Wirt to represent the
prosecution, and he discharged his task most brilliantly. He showed
beyond peradventure that the Common Law doctrine was grounded upon
unshakable authority; that, considering the fact that the entire
phraseology of the constitutional clause regarding treason comes from an
English statute of Edward III's time, it was reasonable, if not
indispensable, to construe it in the light of the Common Law; and that,
certainly as to a procurer of treason, such as Burr was charged with
being, the Common Law doctrine was the only just doctrine, being merely
a reaffirmation of the even more ancient principle that "what one does
through another, he does himself."
In elaboration of this last point Wirt launched forth upon that famous
passage in which he contrasted Burr and the pathetic victim of his
conspiracy:
Who [he asked] is Blennerhassett? A native of Ireland, a man of letters,
who fled from the storms of his own country to find quiet in ours....
Possessing himself of a beautiful island in the Ohio he rears upon it a
palace and decorates it with every romantic embellishment of fancy.
[Then] in the midst of all this peace, this innocent simplicity, this
pure banquet of the heart, the destroyer comes ... to change this
paradise into a hell.... By degrees he infuses [into the heart of
Blennerhassett] the poison of his own ambition.... In a short time the
whole man is changed, and every object of his former delight is
relinquished.... His books are abandoned.... His enchanted island is
destined soon to relapse into a wilderness; and in a few months we find
the beautiful and tender partner of his bosom, whom he lately 'permitted
not the winds of summer to visit too roughly,' we find her shivering at
midnight on the winter banks of the Ohio and mingling her tears with the
torrents that froze as they fell. Yet this unfortunate man, thus ruined,
and undone and made to play a subordinate part in this grand drama of
guilt and treason, this man is to be called the principal offender,
while he by whom he was thus plunged in misery is comparatively
innocent, a mere accessory! Is this reason? Is it law? Is it humanity?
Sir, neither the human heart nor the human understanding will bear a
perversion so monstrous and absurd!
But there was one human heart, one human understanding--and that, in
ordinary circumstances, a very good one--which was quite willing to
shoulder just such a monstrous perversion, or at least its equivalent,
and that heart was John Marshall's. The discussion of the motion to
arrest the evidence continued ten days, most of the time being occupied
by Burr's attorneys. ¹ Finally, on the last day of the month, the Chief
Justice handed down an opinion accepting practically the whole
contention of Burr's attorneys, but offering a totally new set of
reasons for it. On the main question at issue, namely, whether under the
Constitution all involved in a treasonable enterprise are principals,
Marshall pretended not to pass; but in fact he rejected the essential
feature of the Common Law doctrine, namely, the necessary legal presence
at the scene of action of all parties to the conspiracy. The crux of his
argument he embodied in the following statement: "If in one case the
presence of the individual make the guilt of the [treasonable]
assemblage his guilt, and in the other case, the procurement by the
individual make the guilt of the [treasonable] assemblage, his guilt,
then presence and procurement are equally component parts of the overt
act, and equally require two witnesses." Unfortunately for this
argument, the Constitution does not require that the "component parts"
of the overt act be proved by two witnesses, but only that the overt
act--the corpus delicti--be so proved; and for the simple reason that,
when by further evidence any particular individual is connected with the
treasonable combination which brought about the overt act, that act,
assuming the Common Law doctrine, becomes his act, and he is accordingly
responsible for it at the place where it occurred. Burr's attorneys
admitted this contention unreservedly. Indeed, that was precisely the
reason why they had opposed the Common Law doctrine.
¹ A recurrent feature of their arguments was a denunciation of
"constructive treason." But this was mere declamation. Nobody was
charging Burr with any sort of treason except that which is specifically
defined by the Constitution itself, namely, the levying of war against
the United States. The only question at issue was as to the method of
proof by which this crime may be validly established in the case of one
accused of procuring treason. There was also much talk about the danger
and injustice of dragging a man from one end of the country to stand
trial for an act committed at the other end of it. The answer was that,
if the man himself procured the act or joined others in bringing it
about, he ought to stand trial where the act occurred. This same
"injustice" may happen today in the case of murder!
Marshall's effort to steer between this doctrine and its obvious
consequences for the case before him placed him, therefore, in the
curious position of demanding that two overt acts be proved each by two
witnesses. But if two, why not twenty? For it must often happen that the
traitor's connection with the overt act is demonstrable not by a single
act but a series of acts. Furthermore, in the case of procurers of
treason, this connection will ordinarily not appear in overt acts at all
but, as in Burr's own case, will be covert. Can it be, then, that the
Constitution is chargeable with the absurdity of regarding the procurers
of treason as traitors and yet of making their conviction impossible?
The fact of the matter was that six months earlier, before his attitude
toward Burr's doings had begun to take color from his hatred and
distrust of Jefferson, Marshall had entertained no doubt that the Common
Law doctrine underlay the constitutional definition of treason. Speaking
for the Supreme Court in the case of Bollmann and Swartwout, he had
said: "It is not the intention of the Court to say that no individual
can be guilty of this crime who has not appeared in arms against his
country; on the contrary, if war be actually levied, that is, if a body
of men be actually assembled for the purpose of effecting by force a
treasonable purpose, 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 traitors." Marshall's
effort to square this previous opinion with his later position was as
unconvincing as it was labored. ¹
¹ The way in which Marshall proceeded to do this was to treat the phrase
"perform a part" as demanding "a levying of war" on the part of the
performer. (Robertson, Reports, vol. II, p. 438.) But this explanation
will not hold water. For what then becomes of the phrase "scene of
action" in the passage just quoted? What is the difference between the
part to be performed "however minute," and the "action" from which the
performer may be "however remote"? It is perfectly evident that the
"action" referred to is the assemblage which is regarded as the overt
act of war, and that the "part however minute" is something very
different.
Burr's attorneys were more prudent: they dismissed Marshall's earlier
words outright as obiter dicta--and erroneous at that! Nevertheless
when, thirty years later, Story, Marshall's friend and pupil, was in
search of the best judicial definition of treason within the meaning of
the Constitution, he selected this sentence from the case of Bollmann
and Swartwout and passed by the elaborate opinion in Burr's case in
significant silence. But reputation is a great magician in transmuting
heresy into accepted teaching. Posthumously Marshall's opinion has
attained a rank and authority with the legal profession that it never
enjoyed in his own time. Regarding it, therefore, as today established
doctrine, we may say that it has quite reversed the relative importance
of conspiracy and overt act where the treason is by levying war. At the
Common Law, and in the view of the framers of the Constitution, the
importance of the overt act of war was to make the conspiracy visible,
to put its existence beyond surmise. By Marshall's view each traitor is
chargeable only with his own overt acts, and the conspiracy is of
importance merely as showing the intention of such acts. And from this
it results logically, as Marshall saw, though he did not venture to say
so explicitly, that the procurer of treason is not a traitor unless he
has also participated personally in an overt act of war. As Wirt very
justifiably contended, such a result is "monstrous," and, what is more,
it has not been possible to adhere to it in practice. In recent
legislation necessitated by the Great War, Congress has restored the old
Common Law view of treason but has avoided the constitutional difficulty
by labeling the offense "Espionage." Indeed, the Espionage Act of June
15, 1917, scraps Marshall's opinion pretty completely. ¹
¹ See especially Title I, Section 4, of the Act. For evidence of the
modern standing of Marshall's opinion, see the chorus of approval
sounded by the legal fraternity in Dillon's three volumes. In support of
the Common Law doctrine, see the authorities cited in 27 Yale Law
Journal, p. 342 and footnotes; the chapter on Treason in Simon
Greenleaf's well-known Treatise on the Law of Evidence; United States
vs. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.
On the day following the reading of Marshall's opinion, the prosecution,
unable to produce two witnesses who had actually seen Burr procure the
assemblage on the island, abandoned the case to the jury. Shortly
thereafter the following verdict was returned: "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." At the
order of the Chief Justice this Scotch verdict was entered on the
records of the court as a simple Not Guilty.
Marshall's conduct of Burr's trial for treason is the one serious
blemish in his judicial record, but for all that it was not without a
measure of extenuation. The President, too, had behaved deplorably and,
feeling himself on the defensive, had pressed matters with most unseemly
zeal, so that the charge of political persecution raised by Burr's
attorneys was, to say the least, not groundless. Furthermore, in
opposing the President in this matter, Marshall had shown his usual
political sagacity. Had Burr been convicted, the advantage must all have
gone to the Administration. The only possible credit the Chief Justice
could extract from the case would be from assuming that lofty tone of
calm, unmoved impartiality of which Marshall was such a master--and
never more than on this occasion--and from setting himself sternly
against popular hysteria. The words with which his opinion closes have
been often quoted:
Much has been said in the course of the argument on points on which the
Court feels no inclination to comment particularly, but which may,
perhaps not improperly receive some notice.
That this Court dare not usurp power is most true.
That this Court dare not shrink from its duty is not less true.
No man is desirous of placing himself in a disagreeable situation. No
man is desirous of becoming the popular 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.
One could not require a better illustration of that faculty of
"apparently deep self-conviction" which Wirt had noted in the Chief
Justice.
Finally, it must be owned that Burr's case offered Marshall a tempting
opportunity to try out the devotion of Republicans to that ideal of
judicial deportment which had led them so vehemently to criticize
Justice Chase and to charge him with being "oppressive," with refusing
to give counsel for defense an opportunity to be heard, with
transgressing the state law of procedure, with showing too great liking
for Common Law ideas of sedition, with setting up the President as a
sort of monarch beyond the reach of judicial process. Marshall's conduct
of Burr's trial now exactly reversed every one of these grounds of
complaint. Whether he intended it or not, it was a neat turning of the
tables.
But Jefferson, who was at once both the most theoretical and the least
logical of men, was of course hardly prepared to see matters in that
light. As soon as the news reached him of Burr's acquittal, he ordered
Hay to press the indictment for misdemeanor--not for the purpose of
convicting Burr, but of getting the evidence down in a form in which it
should be available for impeachment proceedings against Marshall. For
some weeks longer, therefore, the Chief Justice sat listening to
evidence which was to be used against himself. But the impeachment never
came, for a chain is only as strong as its weakest link, and the weakest
link in the combination against the Chief Justice was a very fragile one
indeed--the iniquitous Wilkinson. Even the faithful and melancholy Hay
finally abandoned him. "The declaration which I made in court in his
favor some time ago," he wrote the President, "was precipitate.... My
confidence in him is destroyed.... I am sorry for it, on his account, on
the public account, and because you have expressed opinions in his
favor." It was obviously impossible to impeach the Chief Justice for
having prevented the hanging of Aaron Burr on the testimony of such a
miscreant.
Though the years immediately following the Burr trial were not a time of
conspicuous activity for Marshall, they paved the way in more than one
direction for his later achievement. Jefferson's retirement from the
Presidency at last relieved the Chief Justice from the warping influence
of a hateful personal contest and from anxiety for his official
security. Jefferson's successors were men more willing to identify the
cause of the Federal Judiciary with that of national unity. Better
still, the War of 1812 brought about the demise of the Federalist party
and thus cleared the Court of every suspicion of partisan bias.
Henceforth the great political issue was the general one of the nature
of the Union and the Constitution, a field in which Marshall's talent
for debate made him master. In the meantime the Court was acquiring that
personnel which it was to retain almost intact for nearly twenty years;
and, although the new recruits came from the ranks of his former party
foes, Marshall had little trouble in bringing their views into general
conformity with his own constitutional creed. Nor was his triumph an
exclusively personal one. He was aided in very large measure by the fact
that the war had brought particularism temporarily into discredit in all
sections of the country. Of Marshall's associates in 1812, Justice
Washington alone had come to the bench earlier, yet he was content to
speak through the mouth of his illustrious colleague, save on the
notable occasion when he led the only revolt of a majority of the Court
from the Chief Justice's leadership in the field of Constitutional Law.
¹ Johnson of South Carolina, a man of no little personal vanity,
affected a greater independence, for which he was on one occasion warmly
congratulated by Jefferson; yet even his separate opinions, though they
sometimes challenge Marshall's more sweeping premises and bolder method
of reasoning, are after all mostly concurring ones. Marshall's really
invaluable aid among his associates was Joseph Story, who in 1811, at
the age of thirty-two, was appointed by Madison in succession to
Cushing. Still immature, enthusiastically willing to learn, warmly
affectionate, and with his views on constitutional issues as yet
unformed, Story fell at once under the spell of Marshall's equally
gentle but vastly more resolute personality; and the result was one of
the most fruitful friendships of our history. Marshall's "original
bias," to quote Story's own words, "as well as the choice of his mind,
was to general principles and comprehensive views, rather than to
technical or recondite learning." Story's own bias, which was supported
by his prodigious industry, was just the reverse. The two men thus
supplemented each other admirably. A tradition of some venerability
represents Story as having said that Marshall was wont to remark: "Now
Story, that is the law; you find the precedents for it." Whether true or
not, the tale at least illustrates the truth. Marshall owed to counsel a
somewhat similar debt in the way of leading up to his decisions, for, as
Story points out, "he was solicitous to hear arguments and not to decide
cases without them, nor did any judge ever profit more by them." But in
the field of Constitutional Law, at least, Marshall used counsel's
argument not so much to indicate what his own judicial goal ought to be
as to discover the best route thereto--often, indeed, through the
welcome stimulus which a clash of views gave to his reasoning powers.
¹ This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 (1827).
Though the wealth of available legal talent at this period was
impressively illustrated in connection both with Chase's impeachment and
with Burr's trial, yet on neither of these occasions appeared William
Pinkney of Maryland, the attorney to whom Marshall acknowledged his
greatest indebtedness, and who was universally acknowledged to be the
leader of the American Bar from 1810 until his death twelve years later.
Besides being a great lawyer, Pinkney was also a notable personality, as
George Ticknor's sketch of him as he appeared before the Supreme Court
in 1815 goes to prove:
You must imagine, if you can, a man formed on nature's most liberal
scale, who at the age of 50 is possessed with the ambition of being a
pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he
told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled
and rigid with age, dresses in a style which would be thought foppish in
a much younger man. You must imagine such a man standing before the
gravest tribunal in the land, and engaged in causes of the deepest
moment; but still apparently thinking how he can declaim like a
practised rhetorician in the London Cockpit, which he used to frequent.
Yet you must, at the same time, imagine his declamation to be chaste and
precise in its language and cogent, logical and learned in its argument,
free from the artifice and affectation of his manner, and in short,
opposite to what you might fairly have expected from his first
appearance and tones. And when you have compounded these inconsistencies
in your imagination, and united qualities which on common occasions
nature seems to hold asunder, you will, perhaps, begin to form some idea
of what Mr. Pinkney is.
Such was the man whom Marshall, Story, and Taney all considered the
greatest lawyer who had ever appeared before the Supreme Court.
At the close of the War of 1812, Marshall, though he had decided many
important questions of International Law, ¹ nevertheless found himself
only at the threshold of his real fame. Yet even thus early he had
indicated his point of view. Thus in the case of the United States vs.
Peters, ² which was decided in 1809, the question before the Court was
whether a mandamus should issue to the United States District Judge of
Pennsylvania ordering him to enforce, in the face of the opposition of
the state Government, a decision handed down in a prize case more than
thirty years before by the old Committee of Appeals of the Continental
Congress. Marshall answered the question affirmatively, saying: "If the
legislatures of the several states may, at will, annul the judgments of
the courts of the United States and destroy the rights acquired under
those judgments, the Constitution itself becomes a solemn mockery, and
the nation is deprived of the means of enforcing its laws by the
instrumentality of its own tribunals."
¹ Two famous decisions of Marshall's in this field are those in the
Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of the
Nereide, 9 ib., 388.
² 5 Cranch, 136.
Marshall's decision evoked a warm protest from the Pennsylvania
Legislature and led to a proposal of amendment to the Constitution
providing "an impartial tribunal" between the General Government and the
States; and these expressions of dissent in turn brought the Virginia
Assembly to the defense of the Supreme Court.
The commission to whom was referred the communication of the governor of
Pennsylvania [reads the Virginia document] ... are of the opinion that a
tribunal is already provided by the Constitution of the United States,
to wit; the Supreme Court, more eminently qualified from their habits
and duties, from the mode of their selection, and from the tenure of
their offices, to decide the disputes aforesaid in an enlightened and
impartial manner than any other tribunal which could be created.
The members of the Supreme Court are selected from those in the United
States who are most celebrated for virtue and legal learning.... The
duties they have to perform lead them necessarily to the most enlarged
and accurate acquaintance with the jurisdiction of the federal and
several State courts together, and with the admirable symmetry of our
government. The tenure of their offices enables them to pronounce the
sound and correct opinions they have formed, without fear, favor or
partiality.
Was it coincidence or something more that during Marshall's incumbency
Virginia paid her one and only tribute to the impartiality of the
Supreme Court while Burr's acquittal was still vivid in the minds of
all? Or was it due to the fact that "the Great Lama of the Little
Mountain"--to use Marshall's disrespectful appellation for
Jefferson--had not yet converted the Virginia Court of Appeals into the
angry oracle of his own unrelenting hatred of the Chief Justice?
Whatever the reason, within five years Virginia's attitude had again
shifted, and she had become once more what she had been in 1798-99, the
rallying point of the forces of Confederation and State Rights.