4: The Trial Of Aaron Burr
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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 asocial 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.
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 eclat of the hero in a melodrama—only to
retire bated 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 Grin 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 subpoena 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 subpoena 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 hellhounds 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 subpoena 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 subpoena 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."2 Little wonder
that such goings-on are said to have "filled the measure of
Jefferson's disgust."
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.3
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.
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.4
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.5
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.6 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.
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,7 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,8 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."
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.
__________
1 An account of the Burr conspiracy will be found in Jefferson
and his Colleagues, by Allen Johnson (in The Chronicles of
America).
2 Parton's Life and Times of Aaron Burr (13th Edition, N.Y.,
1880), p. 479.
3 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!
4The 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 maybe "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.
5 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 w. Mitchell, 2 Dallas,
348; and Druecker vs. Salomon, 21 Wis., 621.
6This was in the case of Ogden vs. Saunders, 12 Wheaton, 213
(1827).
7Two 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.
85 Cranch, 136.
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