The Life of John Marshall Volume III Part 58

When Randolph closed, on Friday, August 21, Hay asked Marshall to postpone further discussion until Monday, that counsel for the Government might prepare their arguments.[1217] Burr's attorneys stoutly objected, but Marshall wisely granted Hay's request.[1218] "Did you not do an unprecedented thing," a friend asked Marshall, "in suspending a criminal prosecution and granting two days, in the midst of the argument on a point then under discussion, for counsel to get ready to speak upon it?" "Yes," replied the Chief Justice, "I did and I knew it. But if I had not done so I should have been reproached with not being _disposed_ to give the prosecutors an opportunity to answer."[1219]

Sat.u.r.day and Sunday were more than time enough to light the fires of MacRae's Scotch wrath. His anger dominated him to such an extent that he became almost incoherent.[1220] Burr not a princ.i.p.al! "Let all who are in any manner concerned in treason be princ.i.p.als," and treason will be suppressed.[1221] MacRae, speaking the language of Jeffreys, had, in his rage, forgotten that he had immigrated to America.

On Tuesday, August 25, although the court opened at nine o'clock,[1222]

the heat was so oppressive that nothing but the public interest--now reaching the point of hysteria--could have kept the densely packed audience in the stifling hall.[1223] But the spectators soon forgot their discomfort. The youthful, handsome William Wirt enraptured them with an eloquence which has lived for a century. It is impossible to give a faithful condensation of this charming and powerful address, the mingled courtesy and boldness of it, the apt phrase, the effective imagery, the firm logic, the wealth of learning. Only examples can be presented; and these do scant justice to the young lawyer's speech.

"When we speak of treason, we must call it treason.... Why then are gentlemen so sensitive ... as if instead of a hall of justice, we were in a drawing-room with colonel Burr, and were barbarously violating towards him every principle of decorum and humanity?[1224] This motion [to arrest the testimony] is a bold and original stroke in the n.o.ble science of defence," made to prevent the hearing of the evidence. But he knew that Marshall would not "sacrifice public justice, committed to [his] charge, by aiding this stratagem to elude the sentence of the law."[1225]

Why had Wickham said so little of American and so much of British precedents, vanishing "like a spirit from American ground and ...

resurging by a kind of intellectual magic in the middle of the 16th century, complaining most dolefully of my lord c.o.ke's bowels." It was to get as far as possible away from Marshall's decision in the case of Bollmann and Swartwout. If Marshall's opinion had been favorable, Wickham "would not have ... deserted a rock so broad and solid, to walk upon the waves of the Atlantic." Wirt made the most of Marshall's careless language.[1226]

The youthful advocate was impressing Marshall as well as jury and auditors. "Do you mean to say," asked the Chief Justice, "that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on Blennerha.s.sett's island?" In reply Wirt condensed the theory of the prosecution: "I mean to say, that the _count_ is _general_ in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the const.i.tutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances."[1227]

Burr's presence at the island necessary! If so, a man might devise and set in motion "the whole mechanism" of treason, "go a hundred miles"

away, let it be operated by his agents, "and he is innocent, ... while those whom he has deluded are to suffer the death of traitors." How infamous! Burr only the accessory and Blennerha.s.sett the princ.i.p.al!

"Will any man believe that Burr who is a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plot into operation, should sink down into an accessory and Blennerha.s.sett be elevated into a princ.i.p.al!"

Here Wirt delivered that pa.s.sage which for nearly a hundred years was to be printed in American schoolbooks, declaimed by American youth, and to become second only to Jefferson's Proclamation, Messages, and letters, in fixing, perhaps irremovably, public opinion as to Aaron Burr and Harman Blennerha.s.sett.[1228] But his speech was not all rhetoric.

Indeed, no advocate on either side, except John Wickham and Luther Martin, approached him in a.n.a.lyses of authorities and closeness of reasoning.[1229]

"I cannot promise you, sir, a speech manufactured out of tropes and figures," remarked Botts in beginning his reply. No man better could have been found to break the force of the address of his young brother of the bar. Wirt had defaced his otherwise well-nigh perfect address by the occasional use of extravagant rhetoric, some of which, it appears, was not reported. Botts availed himself of one such display to make Wirt's argument seem absurd and trivial: "Instead of the introduction of a sleeping Venus with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the prosecution by leading our imaginations to the fascinating richness ... of heaving bosom and luscious waist, I am compelled to plod heavily and meekly through the dull doctrines of Hale and Foster." Botts continued, with daring but brilliant satire, to ridicule Wirt's unhappy rhetoric.[1230] Soon spectators, witnesses, jury, were in laughter. The older lawyers were vastly amused. Even Marshall openly enjoyed the humor.

His purpose thus accomplished, Botts now addressed himself to the evidence, to a.n.a.lyze which he had been a.s.signed. And a perfect job he made of it. He spoke with impetuous rapidity.[1231] He reviewed the events at Blennerha.s.sett's island: "There _was war_, when there was confessedly no war; and it happened although it was prevented!" As to arms: "No arms were necessary ... they might make war with their fingers." Yes, yes, "a most b.l.o.o.d.y war indeed--and ten or twelve boats."

Referring to the flight from Blennerha.s.sett's island, the sarcastic lawyer observed: "If I run away and hide to avoid a beating I am guilty and may be convicted of a.s.sault and battery!" What "simpletons" the people of Kentucky and Mississippi had been! "They hunted but could not find the war," although there it was, right among them![1232]

What was the moving force back of the prosecution? It was, charged Botts, the rescue of the prestige of Jefferson's Administration. "It has not only been said here but published in all the newspapers throughout the United States, that if Aaron Burr should be acquitted it will be the severest satire on the government; and that the people are called upon to support the government by the conviction of colonel Burr; ... even jurymen have been taught by the common example to insult him."

No lie was too contemptible to be published about him. For instance, "when the grand jury returned a true bill, he was firm, serene, unmoved, composed--no change of countenance.... Yet the next day they announced in the newspapers," declared Botts, "that he was in a state of indescribable consternation and dismay." Worse still, "every man who dares to look at the accused with a smile or present him the hand of friendship" is "denounced as a traitor."[1233]

Black but faithful was the picture the fearless lawyer drew of the Government's conduct.[1234] He dwelt on the devices resorted to for inflaming the people against Burr, and after they had been aroused, the demand that public sentiment be heeded and the accused convicted. Was that the method of justice! If so, where was the boasted beneficence of democracies? Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral Byng. "Jefferson was run down in 1780[1235] by the voice of the people." If the law of constructive treason were to be adopted in America and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn.[1236]

Hay, who had been ill for several days[1237] and was badly worn, spoke heavily for the greater part of two days.[1238] His address, though dull, was creditable; but he added nothing in thought or authorities to Wirt's great speech. His princ.i.p.al point, which he repeated interminably, was that the jury must decide both law and fact. In making this contention he declared that Marshall was now asked by Burr's counsel to do the very thing for which Chase had been impeached.[1239]

Time and again the District Attorney insinuated that impeachment would be Marshall's fate if he did not permit the jury to hear all the testimony.[1240]

Charles Lee, Attorney-General under President Adams, and an intimate friend of Marshall,[1241] had joined Burr's legal forces some time before. In opening his otherwise dry argument, Lee called Marshall's attention to Hay's threat of impeachment. The exhausted District Attorney finally denied that he meant such a thing, and Marshall mildly observed: "I did not consider you as making any personal allusion, but as merely referring to the law."[1242] Thus, with his kindly tactfulness, Marshall put the incident aside.

On August 28, Luther Martin closed the debate. He had been drinking even more than usual throughout the proceedings;[1243] but never was he in more perfect command of all his wonderful powers. No outline of his address will be attempted; but a few quotations may be ill.u.s.trative.

It was the admitted legal right and "indispensable duty" of Burr's counsel, began Martin, to make the motion to arrest the testimony; yet for doing so "we have been denounced throughout the United States as attempting to suppress the truth." Our act "has been held up to the public and to this jury as conclusive proof of our guilt." Such, declared the great lawyer, were the methods used to convict Burr.[1244]

He had been in favor, he avowed, of waiving "obvious and undeniable rights," and of going on with the trial because he was convinced that all the evidence would not only clear "his friend," but remove the groundless prejudices which had so wickedly been excited against Burr.

But he had yielded to the judgment of his a.s.sociates that the plan adopted was more conformable to law.

"I shall ever feel the sincerest grat.i.tude to heaven, that my life has been preserved to this time, and that I am enabled to appear ... in his defense." And if his fellow counsel and himself should be "successful in rescuing a gentleman, for whom I with pleasure avow my friendship and esteem, from the fangs of his persecutors ... what dear delight will my heart enjoy!"[1245] Martin thanked Heaven, too, for the boon of being permitted to oppose the "destructive" doctrine of treason advanced by the Government. For hours he a.n.a.lyzed the British decisions which he "thanked G.o.d ... are not binding authority in this country." He described the origin and growth of the doctrine of constructive treason and defined it with clearness and precision.[1246] It was admitted that Burr was not actually present at the time and place at which the indictment charged him with having committed the crime; but, according to the Government, he was "constructively" present.

With perfect fearlessness Martin attacked Marshall's objectionable language in the Bollmann and Swartwout opinion from the Supreme Bench: "As a binding judicial opinion," he accurately declared, "it ought to have no more weight than the ballad of Chevy Chase."[1247] Deftly he impressed upon Marshall, Hay's threat of impeachment if the Chief Justice should presume to decide in Burr's favor.[1248] Lamenting the popular hostility toward Burr, Martin defied it: "I have with pain heard it said[1249] that such are the public prejudice against colonel Burr, that a jury, even should they be satisfied of his innocence, must have considerable firmness of mind to p.r.o.nounce him _not guilty_. I have not heard it without horror.

"G.o.d of Heaven! have we already under our form of government (which we have so often been told is best calculated of all governments to secure all our rights) arrived at a period when a trial in a court of justice, where life is at stake, shall be but ... a mere idle ... ceremony to transfer innocence from the gaol to the gibbet, to gratify popular indignation excited by bloodthirsty enemies!"

Martin closed by a personal appeal to Marshall: "But if it require in such a situation firmness in a jury, so does it equally require fort.i.tude in judges to perform their duty.... If they do not and the prisoner fall a victim, they are guilty of murder in _foro coeli_ whatever their guilt may be in _foro legis_.... May that G.o.d who now looks down upon us, and who has in his infinite wisdom called you into existence and placed you in that seat to dispense justice to your fellow citizens, to preserve and protect innocence against persecution--may that G.o.d so illuminate your understandings that you may _know_ what is right; and may he nerve your souls with firmness and fort.i.tude to _act_ according to that knowledge."[1250]

The last word of this notable debate had been spoken.[1251] The fate of Aaron Burr and of American liberty, as affected by the law of treason, now rested in the hands of John Marshall.

On Monday morning, August 31, the Chief Justice read his opinion. All Richmond and the mult.i.tude of strangers within her gates knew that the proceedings, which for four months had enchained the attention of all America, had now reached their climax. Burr's friends were fearful, and hoped that the laudanum calumny[1252] would "strengthen" Marshall to do his duty.[1253] For the moment the pa.s.sions of the throng were in abeyance while the breathless spectators listened to Marshall's calm voice as it p.r.o.nounced the fateful words.

The opinion of the Chief Justice was one of the longest ever rendered by him, and the only one in which an extensive examination of authorities is made. Indeed, a greater number of decisions, treatises, and histories are referred to than in all the rest of Marshall's foremost Const.i.tutional opinions. Like every one of these, the Burr opinion was a state paper of first importance and marked a critical phase in the development of the American Nation.

Marshall stated the points first to be decided: under the Const.i.tution can a man be convicted of treason in levying war who was not present when the war was levied; and, if so, can testimony be received "to charge one man with the overt acts of others until those overt acts as laid in the indictment be proved to the satisfaction of the court"? He made clear the gravity of the Const.i.tutional question: "In every point of view in which it can be contemplated, [it] is of infinite moment to the people of this country and their government."[1254]

What was the meaning of the words, "'levying war'?... Had their first application to treason been made by our const.i.tution they would certainly have admitted of some lat.i.tude of construction." Even so it was obvious that the term "levying war" literally meant raising or creating and making war. "It would be affirming boldly to say that those only who actually const.i.tuted a portion of the military force appearing in arms could be considered as levying war."

Suppose the case of "a commissary of purchases" for an army raised to make war, who supplied it with provisions; would he not "levy war" as much as any other officer, although he may never have seen the army? The same was true of "a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty a.s.signed to him."

But levying war was not for the first time designated as treason by the American Const.i.tution. "It is a technical term," borrowed from an ancient English statute[1255] and used in the Const.i.tution in the sense understood in that country and this at the time our fundamental law was framed.

Not only British decisions, but "those celebrated elementary writers"

whose "books are in the hands of every student," and upon which "legal opinions are formed" that are "carried to the bar, the bench and the legislature"--all must be consulted in ascertaining the import of such terms.[1256]

Marshall reviewed c.o.ke, Hale, Foster, and Blackstone, and found them vague upon the question "whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that legal rule [of constructive treason] which attaches the guilt of the princ.i.p.al to an accessory." Nor were the British decisions more satisfactory: "If in adjudged cases this question [has] been ... directly decided, the court has not seen those cases."[1257] To trace the origin of "the doctrine that in treason all are princ.i.p.als" was unimportant. However "spurious,"

it was the British principle settled for ages.

The American Const.i.tution, however, "comprizes no question respecting princ.i.p.al and accessory"--the traitor must "truly and in fact levy war."

He must "perform a part in the prosecution of the war."[1258]

Marshall then gingerly takes up the challenge of his opinion in the case of Bollmann and Swartwout. Since it had been upon the understanding by the grand jury of his language in that opinion that Burr had been indicted for treason, and because the Government relied on it for conviction so far as the prosecution depended on the law, the Chief Justice took pains to make clear the disputed pa.s.sages.

"Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessories to treason.[1259] But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. To complete the definition _both_ circ.u.mstances must occur.

They must 'perform a part' which will furnish the overt act; and they must be 'leagued in the conspiracy.'"

Did the things proved to have happened on Blennerha.s.sett's island amount to the overt act of levying war? He had heard, said Marshall, that his opinion in Bollmann and Swartwout was construed as meaning that "any a.s.semblage whatever for a treasonable purpose, whether in force or not in force, whether in a condition to use violence or not in that condition, is a levying of war." That view of his former opinion had not, indeed, "been expressly advanced at the bar"; but Marshall understood, he said, that "it was adopted elsewhere."[1260]

Relying exclusively on reason, all would agree, he continued, "that war could not be levied without the employment and exhibition of force....

Intention to go to war may be proved by words," but the actual going to war must "be proved by open deed."[1261]

This natural and reasonable understanding of the term was supported by the authorities. Marshall then made specific reference to the opinions of a large number of British writers and judges, and of all American judges who had pa.s.sed upon the question. In none of these, he a.s.serted, had "the words 'levying war' ... received a technical different from their natural meaning"[1262]--that is, "the employment and exhibition of force."

Had he overruled all these opinions in the Bollmann-Swartwout case? Had he, in addition, reversed the natural interpretation of the Const.i.tution which reason dictated? Surely not! Yet this was what he was now charged with having done.

But, said Marshall, "an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms." A mere implication was not enough. Yet this was all there was to justify the erroneous construction of his opinion in the case of Bollmann and Swartwout--"the omission of the court to state that the a.s.semblage which const.i.tutes the fact of levying war ought to be in force."[1263]

Marshall then went into an extended and minute a.n.a.lysis of his misunderstood opinion, and painfully labored to show that he then intended to say, as he now did say: that the act of levying war required "an a.s.semblage in force," and not merely "a secret furtive a.s.semblage without the appearance of force." The gathering "must be such as to prove that [war] is its object." If it was not "a military a.s.semblage in a condition to make war, it was not a levying of war."[1264]

The indictment charged Burr with having levied war at a specific place and stated the exact manner in which the act had been done; this was necessary; otherwise the accused could not make adequate defense. So the indictment "must be proved as laid"; otherwise "the charge of an overt act would be a mischief instead of an advantage to the accused," and would lead him from the true cause and nature of the accusation instead of informing him respecting it.[1265]

The Government insisted that, although Burr "had never been with the party ... on Blennerha.s.sett's island, and was, at the time, at a great distance and in a different state,... he was yet legally present, and therefore may properly be charged in the indictment as being present in fact." Thus, the question arose "whether in this case the doctrine of constructive presence can apply." In answering it, John Marshall ended the contention that so cruel a dogma can ever be applied in America.

This achievement was one of his n.o.blest services to the American people.[1266]

Again an imposing array of precedents was examined. "The man, who incites, aids, or procures a treasonable act," is not, merely on that account, "legally present when that act is committed."[1267] Of course, other facts might require that a man should be considered to be present although really absent; for example, if he were on the way there for the purpose of taking part in the specific act charged, or if he were stationed near in order to cooperate with those who actually did the deed, he would be of them and a.s.sociated with them in the perpetration of that particular act.[1268] But otherwise he could not be said to be present.