The Life of John Marshall
Chapter 192 : Just at this time appeared a pamphlet[1311] by Marshall's brother-in-law, Joseph

Just at this time appeared a pamphlet[1311] by Marshall's brother-in-law, Joseph Hamilton Daveiss. Jefferson had removed him from the office of United States Attorney for the District of Kentucky because of Daveiss's failure in his attacks on Burr, and the revengeful Federalist lawyer and politician retaliated by abusing the President, Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's sudden admission of evidence, some saw a direct connection; the previous knowledge Marshall must have had of his brother-in-law's intended a.s.sault, inferred because of "the well-known spirit of clans.h.i.+p and co-operation with which the Marshalls and all their connections are so uniformly animated," showed, it was alleged, that the Chief Justice was working with his kinsman to bring down in indiscriminate ruin, Jefferson, Burr, and Wilkinson together.

The last volume of Marshall's "Life of Was.h.i.+ngton," that "five volumed libel," as Jefferson branded the biography, had recently appeared.

Blennerha.s.sett, who, in expressing his own opinions, usually reflected those of his a.s.sociates, had "no doubt" that the President's perusal of Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a more deadly hatred of the Marshall faction than he has ever conceived of all the Burrites he ever heard of."[1313]

The President's partisans in Virginia were prompt to stoke the furnace of his wrath. William Thompson of Petersburgh[1314] wrote a brief "view"

of the Burr trial and sent "the first 72. pages" to Jefferson, who read them "with great satisfaction" and clamored for more.[1315] Marshall's conduct should indeed fill everybody "with alarm," wrote Jefferson in reply. "We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it. Our case too is the more desperate as to attempt to make the law plainer by amendment is only throwing out new materials for sophistry."[1316]

The Federalists in Was.h.i.+ngton, fast dwindling in power and number, experienced as much relief as their chronic melancholia permitted them to enjoy. "Had the late vice president and two senators been convicted and executed for treason, it would in the opinion of Europe, have reflected disgrace upon our country," notes Senator Plumer in his diary.[1317]

Hay, on the other hand, thought that "a correct and perspicuous legal history of this trial would be a valuable doc.u.ment in the hands of intelligent legislators," but that "among others it might perhaps do mischief. It might produce a sentiment toward all judicial system and law itself, the operation of which might perhaps be fatal to the tranquillity and good order of Society."[1318]

On October 20, Marshall delivered his last opinion in the Burr trials.

It was upon the Government's motion to commit Burr and his a.s.sociates for treason and misdemeanor committed on the dismal island at the mouth of the c.u.mberland, where Burr had first greeted his little band of settlers and potential adventurers. He must grant the motion, Marshall said, "unless it was perfectly clear that the act was innocent." If there was any doubt, the accused must be held. The Chief Justice then carefully a.n.a.lyzed all the evidence.[1319] He concluded that Burr's purposes were to settle the Was.h.i.+ta lands and to invade Mexico if opportunity offered, perhaps, however, only in the event of war with Spain. But whether this was so ought to be left to the jury; Marshall would "make no comment upon it which might, the one way or the other, influence their judgment."[1320] He therefore would commit Burr and Blennerha.s.sett "for preparing and providing the means for a military expedition" against Spain.

"After all, this is a sort of drawn battle," Burr informed Theodosia.

"This opinion was a matter of regret and surprise to the friends of the chief justice and of ridicule to his enemies--all believing that it was a sacrifice of principle to conciliate _Jack Cade_. Mr. Hay immediately said that he should advise the government to _desist from further prosecution_."[1321]

If Marshall disappointed Burr, he infuriated Jefferson. In the closing words of his opinion the Chief Justice flung at the President this challenge: "If those whose province and duty it is to prosecute offenders against the laws of the United States shall be of the opinion that a crime of a deeper dye has been committed, it is at their choice to act in conformity with that opinion"--in short, let Jefferson now do his worst.

Marshall's final opinion and his commitment of Burr, under bail, to be tried in Ohio for possible misdemeanor at the mouth of the c.u.mberland should a grand jury indict him for that offense, disgusted Burr. Indeed he was so "exasperated" that "he was rude and insulting to the Judge."[1322] Nor did Marshall's friends in Richmond feel differently.

They "are as much dissatisfied," records Blennerha.s.sett, "with his opinion yesterday as Government has been with all his former decisions.

He is a good man, and an able lawyer, but timid and yielding under the fear of the mult.i.tude, led ... by the vindictive spirit of the party in power."[1323]

Burr gave the bond of five thousand dollars required by Marshall, but in Ohio the Government declined to pursue the prosecution.[1324] Burr put the whole matter out of his mind as a closed incident, left Richmond, and started anew upon the execution of his one great plan as though the interruption of it had never happened.

Marshall hurried away to the Blue Ridge. "The day after the commitment of Col^o. Burr for a misdemeanor I galloped to the mountains," he tells Judge Peters. During the trial Peters had sent Marshall a volume of his admiralty decisions; and when he returned from his belated vacation, the Chief Justice acknowledged the courtesy: "I have as yet been able only to peep into the book.... I received it while fatigued and occupied with the most unpleasant case which has ever been brought before a Judge in this or perhaps any other country, which affected to be governed by laws, since the decision of which I have been entirely from home.... I only returned in time to perform my North Carolina Circuit which terminates just soon enough to enable me to be here to open the Court for the antient dominion. Thus you perceive I have sufficient bodily employment to prevent my mind from perplexing itself about the attentions paid me in Baltimore and elsewhere.[1325]

"I wish I could have had as fair an opportunity to let the business go off as a jest here as you seem to have had in Pennsylvania: but it was most deplorably serious & I could not give the subject a different aspect by treating it in any manner which was in my power. I might perhaps have made it less serious to my self by obeying the public will instead of the public law & throwing a little more of the sombre upon others."[1326]

While Marshall was resting in the mountains, Jefferson was writing his reply to the last challenge of the Chief Justice.[1327] In his Message to Congress which he prepared immediately after the Burr trials, he urged the House to impeach Marshall. He felt it to be his duty, he said, to transmit a record of the Burr trial. "_Truth & duty alone extort the observation that wherever the laws were appealed to in aid of the public safety, their operation was on behalf of those only against whom they were invoked._" From the record "you will be enabled to judge whether the defect was in the testimony, or in the laws, or _whether there is not a radical defect_ in the administration of the law? And wherever it shall be found the legislature alone can apply or originate the remedy.

"The framers of our const.i.tution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression under pretence of it: and if _the pliability of the law as construed in the case of Fries,[1328] and it's wonderful refractoriness as construed in that of Burr, shew that neither end has been attained, and induce an awful doubt whether we all live under the same law. The right of the jury too to decide law as well as fact seems nugatory without the evidence pertinent to their sense of the law._ If these ends are not attained it becomes worthy of enquiry by what means more effectual they may be secured?"[1329]

On the advice of his Cabinet,[1330] Jefferson struck out from the Message the sentences italicized above. But even with this strong language omitted, Congress was told to impeach Marshall in far more emphatic terms than those by which Jefferson had directed the impeachment of Pickering--in plainer words, indeed, than those privately written to Nicholson ordering the attack upon Chase. Jefferson's a.s.sault on Marshall was also inserted in a Message dealing with probable war against Great Britain and setting out the continuance of our unhappy relations with Spain, "to our former grounds of complaint" against which country had "been added a very serious one."[1331]

Had these grave conditions not engaged the instant attention of Congress, had public sentiment--even with part of its fury drawn from Burr to Great Britain--been heeded at the National Capital, there can be little doubt that John Marshall would have been impeached by the House that was now all but unanimously Republican, and would have been convicted by the overwhelmingly Jeffersonian Senate.

Well for Marshall's peace of mind that he had secluded himself in the solitudes of the Blue Ridge, for never was an American judge subjected to abuse so unsparing. The Jeffersonian press, particularly the _Aurora_ and the _Enquirer_, the two leading Republican papers, went to the limits of invective. "Let the judge be impeached," said the _Enquirer_; the Wickham dinner was recalled--why had Marshall attended it? His speech on the Jonathan Robins case[1332]--"the price of his seat on the bench"--was "a lasting monument of his capacity to defend error."

Marshall's "wavering and irresolute spirit" manifested throughout the trial had disgusted everybody. His attempt to make his rulings "palatable to all parties" had "so often wrapt them in obscurity" that it was hard "to understand on which side the court had decided." His conduct had been inspired by "power illicitly obtained." And think of his encouragement to Burr's counsel to indulge in "unbounded ... slander and vilification" of the President! Callender's libel on Adams was insipid compared with Martin's vulgar billingsgate toward Jefferson! But that "awful tribunal"--the people--would try Marshall; before it "evidence will neither be perverted nor suppressed.... The character of the Chief Justice awaits the issue."[1333]

Another attack soon followed. Marshall's disgraceful conduct "has proved that the Judges are too independent of the people." Let them be made removable by the President on the address of Congress. The Chase trial had shown that impeachment could not be relied on to cleanse the bench of a judge no matter how "noxious," "ridiculous," "contemptible," or "immoral" he might be. But "shall an imposter be suffered to preside on the bench of justice?... Are we to be eternally pestered with that most ridiculous and dangerous cant; that the people ... are incompetent to their own government: and that masters must be set over them and that barriers are to be raised up to protect those masters from the vengeance of the people?"[1334]

Next came a series of "Letters to John Marshall," which appeared simultaneously in the _Aurora_ and the _Enquirer_. They were written by William Thompson under the _nom de guerre_ of "Lucius"; he undoubtedly was also the author of the earlier attacks on the Chief Justice in the _Enquirer_. They were widely copied in the Republican press of the country, and were a veracious expression of public sentiment.

"Your country, sir, owes you a debt of grat.i.tude for former favors,"

which cannot be paid because "the whole stock of national indignation and contempt would be exhausted, before the half of your just claim could be discharged." Marshall had earned "infamy and detestation" by his efforts to erect "tyranny upon the tomb of freedom." His skill "in conducting the manouvres of a political party," his "crafty cunning" as a diplomat, had been perpetuated by the "genius" of John Thompson, whose "literary glory ... will s.h.i.+ne when even the splendour of your talents and your crimes shall have faded forever. When your volumes of apology for British insolence and cruelty[1335] shall be buried in oblivion, the 'Letters of Curtius'[1336] will ... 'd.a.m.n you to everlasting fame.'"

Marshall's entire life, according to Lucius, had been that of a sly, bigoted politician who had always worked against the people. He might have become "one of the boasted patriots of Virginia," but now he was "a disgrace to the bench of justice." He was a Jeffreys, a Bromley, a Mansfield.[1337]

Quickly appeared a second letter to Marshall, accusing him of having "prostrated the dignity of the chief justice of the United States."

Lucius goes into a lengthy a.n.a.lysis of Marshall's numerous opinions in the Burr trials. A just review of the proceedings, he said, demonstrates that the Chief Justice had "exhibited a culpable partiality towards the accused, and a shameless solicitude ... to implicate the government ...

as negligent of their duty"--something that "a less malicious magistrate" never would have dared to display.[1338] A third letter continued the castigation of Marshall and the defense of Jefferson.

Closing an extended argument on this joint theme, Lucius addressed Marshall thus: "Common sense, and violated justice, cry aloud against such conduct; and demand against you the enforcement of these laws, which you refuse to administer."[1339]

All these arraignments of Marshall had, as we have seen,[1340] been submitted to Jefferson. They rose in the final letter to a climax of vituperation: "Could I be instrumental in removing you from the elevation which you have dishonored by ... your crimes, I would still trace you ... for screening a criminal and degrading a judge" by the "juggle of a judicial farce." Marshall and Burr were alike "morally guilty," alike "traitors in heart and in fact.... Such a criminal and such a judge, few countries ever produced.... You are forever doomed to blot the fair page of American history, to be held up, as examples of infamy and disgrace, of perverted talents and unpunished criminality, of foes to liberty and traitors to your country."[1341]

Incited by similar attacks in the Republican press of Baltimore,[1342]

the more ardent patriots of that place resolved publicly to execute Marshall in effigy, along with Burr, Blennerha.s.sett, and Martin, On the morning of November 3, satirical handbills, announcing this act of public justice, were scattered over the city:

"AWFUL!!!

"The public are hereby notified that four 'choice spirits' are this afternoon, at 3 o'clock, to be marshaled for execution by the hangman, on Gallows Hill, in consequence of the sentence p.r.o.nounced against them by the unanimous voice of every honest man in the community.

"The respective crimes for which they suffer are thus stated in the record:

"First, Chief Justice M. for a repet.i.tion of his X.Y.Z. tricks, which are said to be much aggravated by his _felonins_ [_sic_]

capers in open Court, on the plea of irrelevancy;

"Secondly, His Quid Majesty [Burr], charged with the trifling fault of wis.h.i.+ng to divide the Union, and farm _Baron_ Bastrop's grant;

"Thirdly, B[lennerha.s.sett], the chemist, convicted of conspiracy to destroy the tone of the public Fiddle;

"Fourthly, and lastly, but not least, _Lawyer_ Brandy-Bottle, for a false, scandalous, malicious Prophecy, that, before six months, 'Aaron Burr would divide the Union.'

"N.B. The execution of accomplices is postponed to a future day."[1343]

Martin demanded of the Mayor the protection of the law. In response, police were sent to his house and to the Evans Hotel where Blennerha.s.sett was staying. Burr and the faithful Swartwout, who had accompanied his friend and leader, were escorted by a guard to the stage office, where they quickly left for Philadelphia.[1344] Martin's law students and other friends armed themselves to resist violence to him.

A policeman named Goldsmith notified Blennerha.s.sett that a great mob was gathering, "had everything prepared for tarring and feathering and would, ... if disappointed or opposed, tear Martin [and Blennerha.s.sett]

to pieces." The manager of the hotel begged Blennerha.s.sett to hide in the garret of the hostelry. This the forlorn Irishman did, and beheld from a window in the attic what pa.s.sed below.

Shouting and huzzaing men poured by, headed by fifers and drummers playing the "Rogue's march." Midway in the riotous throng were drawn two carts containing effigies of Chief Justice Marshall and the other popularly condemned men "habited for execution.... Two troops of cavalry patrolled the streets, not to disperse the mob, but to follow and behold their conduct." At Martin's house the crowd stopped for a moment, hurling threats and insults, jeering at and defying the armed defenders within and "the cavalry without."

Making "as much noise as if they were about to destroy the city," these devotees of justice and liberty proceeded to the place of public execution. There, amid roars of approval, the effigy of John Marshall, Chief Justice of the United States, was hanged by the neck until the executioner p.r.o.nounced the stuffed figure to be dead. About him dangled from the gibbet the forms of the "traitors"--Aaron Burr and Harman Blennerha.s.sett--and also that of Luther Martin, who had dared to defend them and had thus incurred the malediction of Thomas Jefferson and "the people."[1345]

In the Senate Giles reported a bill to punish as traitors persons who permitted or aided in the perpetration of certain acts, "although not personally present when any such act was done"; and he supported it in an argument of notable ability. He powerfully attacked Marshall, a.n.a.lyzed his opinions in the Burr case, contrasted them with those of other National judges, and pointed out the resulting confusion in the interpretation of the law. All this was spoken, however, with careful regard to the rules of parliamentary discussion.[1346]

Legislation was necessary, said Giles; as matters stood, the decisions of judges on treason were like Congress "enacting our speeches, interspersed with our laws." With what result? No two judges have yet delivered the same opinion upon some of the most essential features of treason. Take for example the British doctrine that, in treason, accessories are princ.i.p.als. Were they in America? "Judge Chase and others say they are. Judge Marshall says he does not know whether they are or not, but his reasoning would go to show that they are not."[1347]

Solely to gratify _vox populi_, the Senate next indulged in a doubtful performance. An attempt was made to expel Senator John Smith of Ohio.

With only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special Senate Committee[1348] presented a report concluding with a resolution to expel Smith because of "his partic.i.p.ation in the conspiracy of Aaron Burr against the peace, union and liberties of the people of the United States."[1349] This surprising doc.u.ment was the work of John Quincy Adams,[1350] who apparently adopted the ideas and almost the language of Lucius.

Burr's conspiracy, wrote Adams, was so evil and was "established by such a ma.s.s of concurring and mutually corroborative testimony" that the "honor" of the Senate and "the deepest interests of this nation"

required that n.o.body connected with it should be a member of Congress.

After an unctuous recitation of accepted generalities and a review of the expulsion of Senator Blount, together with an excellent statement of the law of parliamentary bodies in such cases, Adams got down to the business of destroying John Marshall.[1351]

Marshall had "withheld from the jury ... a great part of the testimony which was essential to [Burr's] conviction.... In consequence of this suppression of evidence" the trial jury had not been allowed to find a verdict of guilty against the traitor. Marshall's "decisions, forming the basis of the issue upon the trials of Burr ... were the sole inducements upon which the counsel for the United States abandoned the prosecution against him" (Smith). An American grand jury had charged Senator Smith with being "an accomplice" of these diabolical plans, and the safety which Marshall's decisions in the Burr trial had thrown around Smith and other a.s.sociates of the traitor "cannot, in the slightest degree, remove the imputation" which the indictment of Smith had brought to his door.