The Life of John Marshall Volume III Part 49

[Ill.u.s.tration: _The Old State House. Richmond, Va._ _Where Marshall presided at the Burr trial._]

In the concourse thus drawn to Richmond, few there were who were not certain that Burr had planned and attempted to a.s.sa.s.sinate Jefferson, overthrow the Government, shatter the Nation, and destroy American "liberty"; and so vocal and belligerent was this patriotic majority that men who at first held opinions contrary to the prevailing sentiment, or who entertained doubts of Burr's guilt, kept discreetly silent. So aggressively hostile was public feeling that, weeks later, when the bearing and manners of Burr, and the devotion, skill, and boldness of his counsel had softened popular asperity, Marshall declared that, even then, "it would be difficult or dangerous for a jury to venture to acquit Burr, however innocent they might think him."[1021] The prosecution of Aaron Burr occurred when a tempest of popular prejudice and intolerance was blowing its hardest.

The provision concerning treason had been written into the American Const.i.tution "to protect the people against that horrible and dangerous doctrine of constructive treason which had stained the English records with blood and filled the English valleys with innocent graves."[1022]

The punishment for treason in all countries had been brutal and savage in the extreme. In England, that crime had not perhaps been treated with such severity as elsewhere. Yet, even in England, so harsh had been the rulings of the courts against those charged with treason, so inhuman the execution of judgments upon persons found guilty under these rulings, so slight the pretexts that sent innocent men and women to their death,[1023] that the framers of our fundamental law had been careful to define treason with utmost clearness, and to declare that proof of it could only be made by two witnesses to the same overt act or by confession of the accused in open court.[1024]

That was one subject upon which the quarreling members of the Const.i.tutional Convention of 1787 had been in accord, and their solution of the question had been the one and the only provision of which no complaint had been made during the struggle over ratification.

Every member of that Convention--every officer and soldier of the Revolution from Washington down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated American independence--all such persons could have been prosecuted and might have been convicted as "traitors" under the British law of constructive treason.[1025] "None," said Justice James Iredell in 1792, "can so highly ... prize these provisions [of the Const.i.tution] as those who are best acquainted with the abuses which have been practised in other countries in prosecutions for this offence.... We ... hope that the page of American history will never be stained with prosecutions for treason, begun without cause, conducted without decency, and ending in iniquitous convictions, without the slightest feelings of remorse."[1026]

Yet, six years later, Iredell avowed his belief in the doctrine of constructive treason.[1027] And in less than seventeen years from the time our National Government was established, the reasons for writing into the Const.i.tution the rigid provision concerning treason were forgotten by the now thoroughly partisanized mult.i.tude, if, indeed, the people ever knew those reasons.

Moreover, every National judge who had pa.s.sed upon the subject, with the exception of John Marshall, had a.s.serted the British doctrine of constructive treason. Most of the small number who realized the cause and real meaning of the American Const.i.tutional provision as to treason were overawed by the public frenzy; and brave indeed was he who defied the popular pa.s.sion of the hour or questioned the opinion of Thomas Jefferson, then at the summit of his popularity.[1028]

One such dauntless man, however, there was among the surging throng that filled the Capitol Square at Richmond after the adjournment of court on May 22, and he was a vigorous Republican, too. "A tall, lank, uncouth-looking personage, with long locks of hair hanging over his face, and a queue down his back tied in an eel-skin, his dress singular, his manners and deportment that of a rough backwoodsman,"[1029] mounted the steps of a corner grocery and harangued the glowering a.s.semblage that gathered in front of him.[1030] His daring, and an unmistakable air that advertised danger to any who disputed him, prevented that violent interruption certain to have been visited upon one less bold and formidable. He praised Burr as a brave man and a patriot who would have led Americans against the hated Spanish; he denounced Jefferson as a persecutor who sought the ruin of one he hated. Thus Andrew Jackson of Tennessee braved and cowed the hostile mob that was demanding and impatiently awaiting the condemnation and execution of the one who, for the moment, had been made the object of the country's execration.[1031]

Jackson had recovered from his brief distrust of Burr, and the reaction had carried his tempestuous nature into extreme championship of his friend. "I am more convinced than ever," he wrote during the trial, "that treason was never intended by Burr."[1032] Throughout the extended and acrimonious contest, Jackson's conviction grew stronger that Burr was a wronged man, hounded by betrayers, and the victim of a political conspiracy to take his life and destroy his reputation. And Jackson firmly believed that the leader of this cabal was Thomas Jefferson. "I am sorry to say," he wrote, "that this thing [the Burr trial] has ...

a.s.sumed the shape of a political persecution."[1033]

The Administration retaliated by branding Andrew Jackson a "malcontent"; and Madison, because of Jackson's att.i.tude, prevented as long as possible the military advancement of the refractory Tennesseean during the War of 1812.[1034] On the other hand, Burr never ceased to be grateful to his frontiersman adherent, and years later was one of those who set in motion the forces which made Andrew Jackson President of the United States.[1035]

Nor was Jackson the only Republican who considered Jefferson as the contriving and energizing hand of the scheme to convict Burr. Almost riotous were the efforts to get into the hall where the trial was held, though it was situated on a steep hill and "the ascent to the building was painfully laborious."[1036] Old and eminent lawyers of Richmond could not reach the bar of the court, so dense was the throng.

One youthful attorney, tall and powerful, "the most magnificent youth in Virginia," determined to witness the proceedings, shouldered his way within and "stood on the ma.s.sive lock of the great door" of the chamber.[1037] Thus Winfield Scott got his first view of that striking scene, and beheld the man whose plans to invade Mexico he himself, more than a generation afterward, was to carry out as Commander of the American Army. Scott, there and then, arrived at conclusions which a lifetime of thought and experiences confirmed. "It was President Jefferson who directed and animated the prosecution," he declares in his "Memoirs." Scott records the political alignment that resulted: "Hence every Republican clamored for execution. Of course, the Federalists ...

compacted themselves on the other side."[1038]

Of all within the Hall of Delegates, and, indeed, among the thousands then in Richmond, only two persons appeared to be perfectly at ease. One of them was John Marshall, the other was Aaron Burr. Winfield Scott tells us of the manner of the imperiled man as he appeared in court on that sultry midday of May: "There he stood, in the hands of power, on the brink of danger, as composed, as immovable, as one of Canova's living marbles." But, says Scott, "Marshall was the master spirit of the scene."[1039]

Gathered about Burr were four of his counsel, the fifth and most powerful of his defenders, Luther Martin, not yet having arrived. The now elderly Edmund Randolph, bearing himself with "overawing dignity"; John Wickham, whose commanding presence corresponded well with his distinguished talents and extensive learning; Benjamin Botts, a very young lawyer, but of conceded ability and noted for a courage, physical and moral, that nothing could shake; and another young attorney, John Baker, a cripple, as well known for his wit as Botts for his fearlessness--this was the group of men that appeared for the defense.

For the prosecution came Jefferson's United States District Attorney, George Hay--eager, nervous, and not supremely equipped either in mind or attainments; William Wirt--as handsome and attractive as he was eloquent and accomplished, his extreme dissipation[1040] now abandoned, and who, by his brilliant gifts of intellect and character, was beginning to lay the solid foundations of his notable career; and Alexander MacRae, then Lieutenant-Governor of Virginia--a sour-tempered, aggressive, well-informed, and alert old Scotchman, pitiless in his use of sarcasm, caring not the least whom he offended if he thought that his affronts might help the cause for which he fought. David Robertson, the stenographer who reported the trial, was a scholar speaking five or six languages.[1041]

With all these men Marshall was intimately acquainted, and he was well a.s.sured that, in making up his mind in any question which arose, he would have that a.s.sistance upon which he so much relied--exhaustive argument and complete exposition of all the learning on the subject to be decided.

Marshall was liked and admired by the lawyers on both sides, except George Hay, who took Jefferson's view of the Chief Justice. Indeed, the ardent young Republican District Attorney pa.s.sionately espoused any opinion the President expressed. The whole bar understood the strength and limitations of the Chief Justice, the power of his intellect no less than his unfamiliarity with precedents and the learning of the law. From these circ.u.mstances, and from Marshall's political wisdom in giving the lawyers a free hand, resulted a series of forensic encounters seldom witnessed or even tolerated in a court of justice.

The first step in the proceedings was the examination by the grand jury of the Government's witnesses, and its return, or refusal to return, bills of indictment against Burr. When the clerk had called the names of those summoned on the grand jury, Burr arose and addressed the court.

Clad in black silk, hair powdered and queue tied in perfect fashion, the extreme pallor of his face in striking contrast to his large black eyes, he made a rare picture of elegance and distinction in the uncouth surroundings of that democratic a.s.semblage.

The accused man spoke with a quiet dignity and an "impressive distinctness" which, throughout the trial, so wrought upon the minds of the auditors that, fifty years afterward, some of those who heard him could repeat sentences spoken by him.[1042] Burr now objected to the panel of the grand jury. The law, he said, required the marshal to summon twenty-four freeholders; if any of these had been struck off and others summoned, the act was illegal, and he demanded to know whether this had been done.[1043]

For an hour or more the opposing counsel wrangled over this point.

Randolph hints at the strategy of the defense: "There never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold."

Marshall sustained Burr's exception: undoubtedly the marshal had acted "with the most scrupulous regard to what he believed to be the law,"

but, if he had changed the original panel, he had transcended his authority.[1044] It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.[1045]

"With regret," Burr demanded the right to challenge the remainder of the grand jury "for favour."[1046] Hay conceded the point, and Burr challenged Senator William Branch Giles. Merely upon the doc.u.ments in Jefferson's Special Message to Congress, Giles had advocated that the writ of habeas corpus be suspended, and this, argued Burr, he could have done only if he supposed "that there was a rebellion or insurrection, and a public danger, of no common kind." This action of Giles was a matter of record; moreover, he had publicly made statements to the same effect.[1047]

Senator Giles admitted that he had acted and spoken as Burr charged; and while denying that he held any "personal resentments against the accused," and a.s.serting that he could act fairly as a grand juror, he graciously offered to withdraw. Marshall mildly observed that "if any gentleman has made up and declared his mind, it would be best for him to withdraw." With superb courtesy, Burr disavowed any reflection on Giles; it was merely above "human nature" that he should not be prejudiced. "So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends."

Burr then challenged Colonel Wilson Cary Nicholas,[1048] who spiritedly demanded the objections to him. Nicholas "entertained a bitterly personal animosity" against him, replied Burr. He would not, however, insist upon "further inquiry" if Nicholas would withdraw as Giles had done. Nicholas then addressed the court. He had been a member of the National House, he said, "when the attempt was made to elect colonel Burr president," and everybody knew how he felt about that incident. He had been in the Senate for three years "while colonel Burr was president of that body," and had done all he could to nominate Clinton in Burr's stead.

His suspicions had been "very much excited" when Burr made his Western journey, and he had openly stated his "uncommon anxiety" concerning "not only the prosperity, but the union of the states." Therefore, he had not desired to serve on the grand jury and had asked the marshal to excuse him. He had finally consented solely from his delicate sense of public duty. Also, said Nicholas, he had been threatened with the publication of one of the "most severe pieces" against him if he served on the grand jury; and this inclined him to "defy [his] enemies [rather] than to ask their mercy or forbearance."

His friends had advised him not to make mention of this incident in court; but, although he was "not scrupulous of acquiring, in this way, a reputation of scrupulous delicacy," and had determined to heed the counsel of his friends, still, he now found himself so confused that he did not know just what he ought to do. On the whole, however, he thought he would follow the example of Senator Giles and withdraw.[1049]

At that very moment, Nicholas was a Republican candidate for Congress and, next to Giles, Jefferson's princ.i.p.al political agent in Virginia.

Four days after Burr had been brought to Richmond, Jefferson had written Nicholas a letter of fulsome flattery "beseeching" him to return to the National House in the place of the President's son-in-law, Thomas Mann Randolph, who had determined to retire, and a.s.suring him of the Republican leadership if he would do so.[1050]

Thus, for a moment, was revealed a thread of that web of intrigue and indirect influence which, throughout the trial, was woven to enmesh judge, jury, and public. Burr was instantly upon his feet denouncing in his quiet but authoritative manner the "attempt to intimidate" Nicholas as "a contrivance of some of [his] enemies for the purpose of irritating" the hot-blooded Republican politician "and increasing the public prejudice against [Burr]; since it was calculated to throw suspicion on [his] cause." Neither he nor his friends had ever "sanctioned" such an act; they were wholly ignorant of it, and viewed it "with indignation."[1051]

Mr. Joseph Eggleston, another of the grand jurors, now asked to be excused because he had declared his belief of Burr's guilt; but he admitted, in answer to Marshall's questions, that he could act justly in the impending investigation. Burr said that he would not object to Eggleston: "the industry which has been used through this country [Virginia] to prejudice my cause, leaves me very little chance, indeed, of an impartial jury." Eggleston's "candour ... in excepting to himself"

caused Burr to hope that he would "endeavour to be impartial." But let Marshall decide--Burr would be "perfectly pa.s.sive."[1052] The scrupulous grand juror was retained.

John Randolph and Dr. William Foushee were then added to the grand jury panel and Marshall appointed Randolph foreman.[1053] He promptly asked to be excused because of his "strong prepossession." "Really," observed Burr, "I am afraid we shall not be able to find any man without this prepossession." Marshall again stated "that a man must not only have formed but declared an opinion in order to excuse him from serving on the jury." So Randolph was sworn as foreman, the oath administered to all, and at last the grand jury was formed.[1054]

Marshall then instructed the jury, the substance of his charge being to the same effect as his opinion in the case of Bollmann and Swartwout.

Burr asked the Chief Justice also to advise the men who were to decide the question of his indictment "as to the admissability of certain evidence" which he supposed Hay would lay before them. The District Attorney objected to any favor being shown Burr, "who," he declared, "stood on the same footing with every other man charged with crime."

For once Burr unleashed his deep but sternly repressed feeling: "Would to G.o.d," he cried, his voice vibrant with emotion, "that I did stand on the same ground with every other man. This is the first time [since the military seizure] that I have been permitted to enjoy the rights of a citizen. How have I been brought hither?" Marshall checked this pa.s.sionate outburst: it was not proper, he admonished both Hay and Burr, to "go into these digressions."

His composure restored, Burr insisted that he should be accorded "the same privileges and rights which belonged to every other citizen." He would not now urge his objections to Marshall's opinion in the Bollmann-Swartwout case;[1055] but he pointed out "the best informed juryman might be ignorant of many points ... relating to testimony, ...

for instance, as to the article of papers," and he wished Marshall to inform the jury on these matters of law.

A brief, sharp debate sprang up, during which Burr's counsel spoke of the "host of prejudices raised against [their] client," taunted Hay with his admission "that there was no man who had not formed an opinion," and denounced "the activity of the Government."[1056] Upon Hay's pledging himself that he would submit no testimony to the grand jury "without notice being first given to Colonel Burr and his counsel," Marshall adjourned the court that the attorneys might prepare for "further discussion." The Government was not ready to present any testimony on either the following day or on Monday because its princ.i.p.al witness, General Wilkinson, had not arrived.

Hay now sent Jefferson his first report of the progress of the case.

Burr had steadily been making friends, and this irritated the District Attorney more than the legal difficulties before him. "I am surprised, and afflicted, when I see how much, and by how many, this man has been patronised and supported." Hay a.s.sured Jefferson, however, that he would "this day move to commit him for treason."[1057] Accordingly, he announced in the presence of the grand jury that he would again ask the court to imprison Burr on that accusation. In order, he said, that the impropriety of mentioning the subject in their presence might be made plain, Burr moved that the grand jury be withdrawn. Marshall sustained the motion; and after the grand jury had retired, Hay formally moved the court to order Burr's incarceration upon the charge of treason.[1058]

Burr's counsel, surprised and angered, loudly complained that no notice had been given them. With a great show of generosity, Hay offered to delay his motion until the next day. "Not a moment's postponement,"

shouted Botts, his fighting nature thoroughly aroused. Hay's "extraordinary application," he said, was to place upon the court the functions of the grand jury. Burr wanted no delay. His dearest wish was to "satisfy his country ... and even his prosecutors, that he is innocent." Was ever a man so pursued? He had been made the victim of unparalleled military despotism; his legal rights had been ignored; his person and papers unlawfully seized. The public had been excited to anger. Through newspaper threats and "popular clamor" attempts had been made to intimidate every officer of the court. Consider "the mult.i.tude around us"--they must not be further infected "with the poison already too plentifully infused."

Did Hay mean to "open the case more fully?" inquired Marshall. No, answered Hay; but Wilkinson's arrival in Virginia might be announced before he reached Richmond. Who could tell the effect on Burr of such dread tidings? The culprit might escape; he must be safely held.[1059]

"The bets were against Burr that he would abscond, should W. come to Richmond."[1060]

If Wilkinson is so important a witness, "why is he not here?" demanded Wickham. Everybody knew that "a set of busy people ... are laboring to ruin" Burr. "The press, from one end of the continent to the other, has been enlisted ... to excite prejudices" against him. Let the case be decided upon "the evidence of sworn witnesses" instead of "the floating rumours of the day."

Did the Government's counsel wish that "the mult.i.tude around us should be prejudiced by garbled evidences?" Wickham avowed that he could not understand Hay's motives, but of this he was sure--that if, thereafter, the Government wished to oppress any citizen, drag him by military force over the country, prejudice the people against him, it would "pursue the very same course which has now been taken against colonel Burr." The prosecution admitted that it had not enough evidence to lay before the grand jury, yet they asked to parade what they had before the court.

Why?--"to nourish and keep alive" the old prejudices now growing stale.[1061]

Wirt answered at great length. He understood Wickham's purpose, he said.

It was to "divert the public attention from Aaron Burr," and "shift the popular displeasure ... to another quarter." Wickham's speech was not meant for the court, exclaimed Wirt, but for "the people who surround us," and so, of course, Marshall would not heed it. Burr's counsel "would convert this judicial inquiry into a political question ...

between Thomas Jefferson and Aaron Burr."

Not to be outdone by his gifted a.s.sociate, Hay poured forth a stream of words: "Why does he [Burr] turn from defending himself to attack the administration?" he asked. He did not answer his own question, but Edmund Randolph did: "An order has been given to treat colonel Burr as an outlaw, and to burn and destroy him and his property." Jefferson, when requested, had furnished the House information;--"would to G.o.d he had stopped here, as an executive officer ought to have done!" But instead he had also p.r.o.nounced Burr guilty--an opinion calculated to affect courts, juries, the people. Wickham detailed the treatment of Burr, "the only man in the nation whose rights are not secure from violation."[1062]

Burr himself closed this unexpected debate, so suddenly thrust upon his counsel and himself. His speech is a model of that simple, perspicuous, and condensed statement of which he was so perfectly the master. He presented the law, and then, turning to Hay, said that two months previous the District Attorney had declared that he had enough evidence to justify the commitment, and surely he must have it now. Nearly half a year had elapsed since Jefferson had "declared that there was a crime,"