The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815
TextJefferson cannot sufficiently criticize Marshall's opinion: "If, in Nov. or Dec. last, a body of troops had assembled on the Ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of March," he quotes from Marshall's ruling. "I ask the judge where they [the affidavits] should have been lodged? At Frankfort? at Cincinnati? at Nashville? St. Louis?.. New Orleans?.. Where? At Richmond he certainly meant, or meant only to throw dust in the eyes of his audience."1002
As his pen flew over the burning page, Jefferson's anger grew. Marshall's love of monarchy was at the bottom of his decision: "All the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious Republic."
Marshall's refinements as to proof required to establish probable cause to believe Burr guilty, particularly irritated Jefferson. "As to the overt acts, were not the bundle of letters of information in Mr. Rodney's hands, the letters and facts published in the local newspapers, Burr's flight, & the universal belief or rumor of his guilt, probable ground for presuming the facts … so as to put him on trial? Is there a candid man in the U S who does not believe some one, if not all, of these overt acts to have taken place?"
How dare Marshall require legal evidence when "letters, newspapers and rumors" condemned Burr! How dare he, as a judge, not heed "the universal belief," especially when that general public opinion had been crystallized by Jefferson himself!
That Marshall was influenced by politics and was of a kidney with the whole breed of National judges up to that time, Jefferson had not the slightest doubt. "If there ever had been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, I should have judged them in the present case with more charity."
But the conduct of the Chief Justice will be the final outrage which will compel a great reform. "The nation will judge both the offender & judges for themselves … the people … will see … & amend the error in our Constitution, which makes any branch independent of the nation… One of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that class of offenders which endeavors to overturn the Constitution, and are themselves protected in it by the Constitution itself; for impeachment is a farce which will not be tried again."
Thus Jefferson extracts some comfort from Marshall's refusal to obey popular clamor and condemn on "rumor." If Marshall's "protection of Burr produces this amendment,1003 it will do more good than his condemnation would have done. Against Burr, personally," audaciously adds Jefferson, "I never had one hostile sentiment."1004
Such was the state of the President's mind when he learned of Marshall's ruling on the Government's motion to commit Burr to jail upon the charges of treason and high misdemeanor. Jefferson felt that he himself was on trial; he knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life. He proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the National Government to bend Marshall to his will.
Thus the President of the United States became the leading counsel in the prosecution of Aaron Burr, as well as the director-general of a propaganda planned to confirm public opinion of Burr's treason, and to discredit Marshall should his decisions from the bench result in the prisoner's escape from the gallows.1005 Jefferson ordered his Attorney-General, Cæsar A. Rodney, to direct justices of the peace throughout the country to examine everybody supposed to have any knowledge of Burr, his plans, movements, or conversations. Long lists of questions, designed to elicit replies that would convict Burr, were sent to these officials on printed forms. A vast drag-net was spread over almost the whole of the United States and drawn swiftly and remorselessly to Washington.
The programme for the prosecution became the subject of anxious Cabinet meetings, and the resources of every department of the Executive branch of the Government were employed to overwhelm the accused man. Jefferson directed Madison as Secretary of State "to take the necessary measures," including the advance of money for their expenses, to bring to Richmond witnesses "from great distances."
Five thousand dollars, in a single warrant, was given to the Attorney-General for use in supporting the Administration's case.1006 The total amount of the public money expended by Jefferson's orders to secure Burr's conviction was $11,721.11, not a dollar of which had been appropriated for that purpose. "All lawful expenses in the prosecution of Burr were audited, and paid in full," under a law which provided for the conduct of criminal cases; the sums spent by direction of the President were in addition to the money dispensed by authority of that law.1007
When Bollmann had been brought to Washington, he had read with rage and amazement the newspaper accounts that Burr had led two thousand armed men in a violent and treasonable attack upon the United States. Accordingly, after Marshall released him from imprisonment, he hastened to Jefferson and tried to correct what he declared to be "false impressions" concerning Burr's treason. Bollmann also wished to convince the President that war with Spain was desirable, and to get his support of Burr's expedition. Jefferson, having taken the precaution to have the Secretary of State present at the interview, listened with apparent sympathy. The following day he requested Bollmann to write out and deliver to him his verbal statements, "Thomas Jefferson giving him his word of honour that they should never be used against himself [Bollmann] and that the paper shall never go out of his [Jefferson's] hand."1008
The confiding Bollmann did as the President requested, his whole paper going "to disprove treason, and to show the expediency of war." Because of unfamiliarity with the English language "one or two expressions" may have been "improperly used."1009 Bollmann's statement Jefferson now transmitted to the District Attorney at Richmond, in order, said the President, "that you may know how to examine him and draw everything from him."
Jefferson ordered Hay to show the paper only to his associate counsel; but, if Bollmann "should prevaricate," the President adds, "ask him whether he did not say so and so to Mr. Madison and myself." The President assures Hay that "in order to let him [Bollmann] see that his prevarication will be marked, Mr. Madison will forward [Hay] a pardon for him, which we mean should be delivered previously." Jefferson fears that Bollmann may not appear as a witness and directs Hay to "take effectual measures to have him immediately taken into custody."
Nor was this all. Three months earlier, Wilkinson had suggested to Jefferson the base expedient of offering pardons to Burr's associates, in order to induce them to betray him and thus make certain his conviction.1010 Apparently this crafty and sinister advice now recurred to Jefferson's mind – at least he followed it. He enclosed a sheaf of pardons and directed Hay to fill them out "at [his] discretion, if [he] should find a defect of evidence, & believe that this would supply it, by avoiding to give them to the gross offenders, unless it be visible that the principal will otherwise escape."1011
In the same letter Jefferson also sent to Hay the affidavit of one Jacob Dunbaugh, containing a mass of bizarre falsehoods, as was made plain during the trial. Dunbaugh was a sergeant who had been arrested for desertion and had been pardoned by Wilkinson on condition that he would give suitable testimony against Burr. "If," continues Jefferson, "General Wilkinson gets on in time,1012 I expect he will bring Dunbaugh with him. At any rate it [Dunbaugh's affidavit] may be a ground for an arrest & committment for treason."
Vividly alive to the forces at work to doom him, Burr nevertheless was not dismayed. As a part of his preparation for defense he exercised on all whom he met the full power of his wonderful charm; and if ever a human being needed friends, Aaron Burr needed them in the Virginia Capital. As usual, most of those who conversed with him and looked into his deep, calm eyes became his partisans. Gradually, a circle of men and women of the leading families of Richmond gathered about him, supporting and comforting him throughout his desperate ordeal.
Burr's attorneys were no longer merely his counsel performing their professional duty; even before the preliminary hearing was over, they had become his personal friends and ardent champions. They were ready and eager to go into court and fight for their client with that aggressiveness and enthusiasm which comes only from affection for a man and a faith in his cause. Every one of them not only had developed a great fondness for Burr, but earnestly believed that his enterprise was praise-worthy rather than treasonable.
One of them, John Wickham, was a commanding figure in the society of Richmond, as well as the leader of the Virginia bar at that time.1013 He was a close friend of Marshall and lived in an imposing house near him. It was to Wickham that Marshall had left the conduct of his cases in court when he went to France on the X. Y. Z. mission.
Dinners were then the principal form of social intercourse in Richmond, and were constantly given. The more prominent lawyers were particularly devoted to this pleasing method of cheer and relaxation. This custom kept the brilliant bar of Richmond sweet and wholesome, and nourished among its members a mutual regard, while discouraging resentments and animosities. Much of that courtesy and deference shown to one another by the lawyers of that city, even in the most spirited encounters in court, was due to that esteem and fellowship which their practice of dining together created.
Of the dispensers of such hospitality, Marshall and Wickham were the most notable and popular. The "lawyer dinners" given by Marshall were famous; and the tradition of them still casts a warm and exhilarating glow. The dinners, too, of John Wickham were quite as alluring. The food was as plentiful and as well prepared, the wines as varied, select, and of as ancient vintage, the brandy as old and "sound," the juleps as fragrant and seductive; and the wit was as sparkling, the table talk as informing, the good humor as heartening. Nobody ever thought of declining an invitation to the house of John Wickham.
All these circumstances combined to create a situation for which Marshall was promptly denounced with that thoughtlessness and passion so characteristic of partisanship – a situation that has furnished a handle for malignant criticism of him to this day. During the interval between the preliminary hearing and the convening of court in May, Wickham gave one of his frequent and much-desired dinners. As a matter of course, Wickham's intimate friend and next-door neighbor was present – no dinner in Richmond ever was complete without the gentle-mannered, laughter-loving John Marshall, with his gift for making everybody happy and at ease. But Aaron Burr was also a guest.
Aaron Burr, "the traitor," held to make answer to charges for his infamous crimes, and John Marshall, the judge before whom the miscreant was to be tried, dining together! And at the house of Burr's chief counsel! Here was an event more valuable to the prosecution than any evidence or argument, in the effect it would have, if rightly employed, on public opinion, before which Burr had been and was arraigned far more than before the court of justice.
Full use was made of the incident. The Republican organ, the Richmond Enquirer, promptly exposed and denounced it. This was done by means of two letters signed "A Stranger from the Country," who "never had any, the least confidence in the political principles of the chief justice" – none in "that noble candor" and "those splendid … even god-like talents which many of all parties ascribe to him." Base as in reality he was, Marshall might have "spared his country" the "wanton insult" of having "feasted at the same convivial board with Aaron Burr." What excuse was there for "conduct so grossly indecent"? To what motive should Marshall's action be ascribed? "Is this charity, hypocracy, or federalism?" Doubtless he "was not actuated by any corrupt motive," and "was unapprised of the invitation of B."1014 However, the fact is, that the judge, the accused, and his attorney, were fellow guests at this "treason rejoicing dinner."1015
Thus the great opinions of John Marshall, delivered during the trial of Aaron Burr, were condemned before they were rendered or even formed. With that lack of consideration which even democracies sometimes display, the facts were not taken into account. That Marshall never knew, until he was among them, who his fellow guests were to be; that Wickham's dinner, except in the presence of Burr, differed in no respect from those constantly given in Richmond; that Marshall, having arrived, could do nothing except to leave and thus make the situation worse; – none of these simple and obvious facts seemed to have occurred to the eager critics of the Chief Justice.
That Marshall was keenly aware of his predicament there can be no doubt. He was too good a politician and understood too well public whimsies and the devices by which they are manipulated, not to see the consequences of the innocent but unfortunate evening at Wickham's house. But he did not explain; he uttered not a syllable of apology. With good-natured contempt for the maneuvers of the politicians and the rage of the public, yet carefully and coolly weighing every element of the situation, John Marshall, when the appointed day of May came around, was ready to take his seat upon the bench and to conduct the historic trial of Aaron Burr with that kindly forbearance which never deserted him, that canny understanding of men and motives which served him better than learning, and that placid fortitude that could not be shaken.
CHAPTER VIII
ADMINISTRATION VERSUS COURT
In substance Jefferson said that if Marshall should suffer Burr to escape, Marshall himself should be removed from office. (Henry Adams.)
It becomes our duty to lay the evidence before the public. Go into any expense necessary for this purpose. (Jefferson.)
The President has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. (Luther Martin.)
If you cannot exorcise the demon of prejudice, you can chain him down to law and reason. (Edmund Randolph.)
On May 22, 1807, the hall of the House of Delegates at Richmond was densely crowded long before the hour of half-past twelve, when John Marshall took his seat upon the bench and opened court. So occupied was every foot of space that it was with difficulty that a passage was opened through which the tall, awkwardly moving, and negligently clad Chief Justice could make his way. By Marshall's side sat Cyrus Griffin, Judge of the District Court, who throughout the proceedings was negligible.
The closely packed spectators accurately portrayed the dress, manners, and trend of thought of the American people of that period. Gentlemen in elegant attire – hair powdered and queues tied in silk, knee breeches and silver buckles, long rich cloth coats cut half away at the waist, ruffled shirts and high stocks – were conspicuous against the background of the majority of the auditors, whose apparel, however, was no less picturesque.
This audience was largely made up of men from the smaller plantations, men from the mountains, men from the backwoods, men from the frontiers. Red woolen shirts; rough homespun or corduroy trousers, held up by "galluses"; fringed deerskin coats and "leggings" of the same material kept in place by leather belts; hair sometimes tied by strings in uncouth queues, but more often hanging long and unconfined – in such garb appeared the greater part of the attendance at the trial of Aaron Burr. In forty years there had been but little change in the general appearance of Virginians1016 except that fewer wore the old dignified and becoming attire of well-dressed men.
Nearly all of them were Republicans, plain men, devoted to Jefferson as the exponent of democracy and the heaven-sent leader of the people. Among these Jeffersonians, however, were several who, quite as much as the stiffest Federalists, prided themselves upon membership in the "upper classes."
Nearly all of the Republicans present, whether of the commonalty or the gentry, were against Aaron Burr. Scattered here and there were a few Federalists – men who were convinced that democracy meant the ruin of the Republic, and who profoundly believed that Jefferson was nothing more than an intriguing, malicious demagogue – most of whom looked upon Burr with an indulgent eye. So did an occasional Republican, as now and then a lone Federalist denounced Burr's villainy.
The good-sized square boxes filled with sand that were placed at infrequent intervals upon the floor of the improvised court-room were too few to receive the tobacco juice that filled the mouths of most of the spectators before it was squirted freely upon the floor and wall. Those who did not chew the weed either smoked big cigars and fat pipes or contented themselves with taking snuff.1017 Upon recess or adjournment of court, all, regularly and without loss of time, repaired to the nearest saloons or taverns and strengthened themselves, with generous draughts of whiskey or brandy, taken "straight," for a firmer, clearer grasp of the points made by counsel.
Never, in its history, had Richmond been so crowded with strangers. Nearly five thousand people now dwelt in the Virginia Capital, the site of which was still "untamed and broken" by "inaccessible heights and deep ravines."1018 Thousands of visitors had come from all over the country to witness the prosecution of that fallen angel whose dark deeds, they had been made to believe, had been in a fair way to destroy the Nation. The inns could shelter but an insignificant fraction of them, and few were the private houses that did not take in men whom the taverns could not accommodate. Hundreds brought covered wagons or tents and camped under the trees or on the river-banks near the city. Correspondents of the press of the larger cities were present, among them the youthful1019 Washington Irving, who wrote one or two articles for a New York paper.
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 assassinate 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."1020 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 Constitution "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."1021
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,1022 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.1023
That was one subject upon which the quarreling members of the Constitutional 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.1024 "None," said Justice James Iredell in 1792, "can so highly … prize these provisions [of the Constitution] 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."1025
Yet, six years later, Iredell avowed his belief in the doctrine of constructive treason.1026 And in less than seventeen years from the time our National Government was established, the reasons for writing into the Constitution the rigid provision concerning treason were forgotten by the now thoroughly partisanized multitude, if, indeed, the people ever knew those reasons.
Moreover, every National judge who had passed upon the subject, with the exception of John Marshall, had asserted the British doctrine of constructive treason. Most of the small number who realized the cause and real meaning of the American Constitutional provision as to treason were overawed by the public frenzy; and brave indeed was he who defied the popular passion of the hour or questioned the opinion of Thomas Jefferson, then at the summit of his popularity.1027
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,"1028 mounted the steps of a corner grocery and harangued the glowering assemblage that gathered in front of him.1029 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.1030
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."1031 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 … assumed the shape of a political persecution."1032
The Administration retaliated by branding Andrew Jackson a "malcontent"; and Madison, because of Jackson's attitude, prevented as long as possible the military advancement of the refractory Tennesseean during the War of 1812.1033 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.1034
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."1035 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 massive lock of the great door" of the chamber.1036 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."1037
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."1038
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 dissipation1039 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.1040
With all these men Marshall was intimately acquainted, and he was well assured that, in making up his mind in any question which arose, he would have that assistance 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 passionately 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 circumstances, 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 assemblage.
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.1041 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.1042
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.1043 It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.1044