The Life of John Marshall
Chapter 189 : Burr wrote Theodosia of his many visitors, women as well as men: "It is well that

Burr wrote Theodosia of his many visitors, women as well as men: "It is well that I have an ante-chamber, or I should often be _gene_ with visitors." If Theodosia should come on for the trial, he playfully admonishes her that there must be "no agitations, no complaints, no fears or anxieties on the road, or I renounce thee."[1185]

Finally Burr asked his daughter to come to him: "I want an independent and discerning witness to my conduct and that of the government. The scenes which have pa.s.sed and those about to be transacted will exceed all reasonable credibility, and will hereafter be deemed fables, unless attested by very high authority.... I should never invite any one, much less those so dear to me, to witness my disgrace. I may be immured in dungeons, chained, murdered in legal form, but I cannot be humiliated or disgraced. If absent, you will suffer great solicitude. In my presence you will feel none, whatever be the _malice_ or the _power_ of my enemies, and in both they abound."[1186]

Theodosia was soon with her father. Her husband, Joseph Alston, now Governor of South Carolina, accompanied her; and she brought her little son, who, almost as much as his beautiful mother, was the delight of Burr's heart.

During these torrid weeks the public temper throughout the country rose with the thermometer.[1187] The popular distrust of Marshall grew into open hostility. A report of the proceedings, down to the time when Burr was indicted for treason, was published in a thick pamphlet and sold all over Virginia and neighboring States. The impression which the people thus acquired was that Marshall was protecting Burr; for had he not refused to imprison him until the grand jury indicted the "traitor"?

The Chief Justice estimated the situation accurately. He knew, moreover, that prosecutions for treason might be inst.i.tuted thereafter in other parts of the country, particularly in New England. The Federalist leaders in that section had already spoken and written sentiments as disloyal, essentially, as those now attributed to Burr; and, at that very time, when the outcry against Burr was loudest, they were beginning to revive their project of seceding from the Union.[1188] To so excellent a politician and so far-seeing a statesman as Marshall, it must have seemed probable that his party friends in New England might be brought before the courts to answer to the same charge as that against Aaron Burr.

At all events, he took, at this time, a wise and characteristically prudent step. Four days after the news of the Chesapeake affair reached Richmond, the Chief Justice asked his a.s.sociates on the Supreme Bench for their opinion on the law of treason as presented in the case of Aaron Burr. "I am aware," he wrote, "of the unwillingness with which a judge will commit himself by an opinion on a case not before him, and on which he has heard no argument. Could this case be readily carried before the Supreme Court, I would not ask an opinion in its present stage. But these questions must be decided by the judges separately on their respective circuits, and I am sure that there would be a strong and general repugnance to giving contradictory decisions on the same points. Such a circ.u.mstance would be disreputable to the judges themselves as well as to our judicial system. This suggestion suggests the propriety of a consultation on new and different subjects and will, I trust, apologize for this letter."[1189]

Whether a consultation was held during the five weeks that the Burr trial was suspended is not known. But if the members of the Supreme Court did not meet the Chief Justice, it would appear to be certain that they wrote him their views of the American law of treason; and that, in the crucial opinion which Marshall delivered on that subject more than two months after he had written to his a.s.sociates, he stated their mature judgments as well as his own.

It was, therefore, with a composure, unwonted even for him, that Marshall again opened court on August 3, 1807. The crowd was, if possible, greater than ever. Burr entered the hall with his son-in-law, Governor Alston.[1190] Not until a week later was counsel for the Government ready to proceed. When at last the men summoned to serve on the pet.i.t jury were examined as to their qualifications, it was all but impossible to find one impartial man among them--utterly impossible to secure one who had not formed opinions from what, for months, had been printed in the newspapers.

Marshall described with fairness the indispensable qualifications of a juror.[1191] Men were rejected as fast as they were questioned--all had read the stories and editorial opinions that had filled the press, and had accepted the deliberate judgment of Jefferson and the editors; also, they had been impressed by the public clamor thus created, and believed Burr guilty of treason. Out of forty-eight men examined during the first day, only four could be accepted.[1192]

While the examination of jurors was in progress, one of the most brilliant debates of the entire trial sprang up, as to the nature and extent of opinions formed which would exclude a man from serving on a jury.[1193]

When Marshall was ready to deliver his opinion, he had heard all the reasoning that great lawyers could give on the subject, and had listened to acute a.n.a.lyses of all the authorities. His statement of the law was the ablest opinion he had yet delivered during the proceedings, and is an admirable example of his best logical method. It appears, however, to have been unnecessary, and was doubtless delivered as a part of Marshall's carefully considered plan to go to the extreme throughout the trial in the hearing and examination of every subject.[1194]

For nearly two weeks the efforts to select a jury continued. Not until August 15 were twelve men secured, and most of these avowed that they had formed opinions that Burr was a traitor. They were accepted only because impartial men could not be found.

When Marshall finished the reading of his opinion, Hay promptly advised Jefferson that "the [bi]as of Judge Marshall is as obvious, as if it was [stam]ped upon his forehead.... [He is] endeavoring to work himself up to a state of [f]eeling which will enable [him] to aid Burr throughout the trial, without appearing to be conscious of doing wrong. He [Marshall] seems to think that his reputation is irretrievably gone, and that he has now nothing to lose by doing as he pleases.--His concern for Burr is wonderful. He told me many years ago, when Burr was rising in the estimation of the republican party, that he was as profligate in principle, as he was desperate in fortune. I remember his words. They astonished me.

"Yet," complained Hay, "when the Gr: Jury brought in their bill the Chief Justice gazed at him, for a long time, without appearing conscious that he was doing so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit without _palpable_ emotion. If Mr.

Burr has any feeling left, yesterday must have been a day of agonizing humiliation," because the answers of the jurors had been uniformly against him; and Hay gleefully relates specimens of them.

"There is but one chance for the accused," he continued, "and that is a good one because it rests with the Chief Justice. It is already hinted, but not by himself [that] the decision of the Supreme Court will no[t be] deemed binding. If the a.s.sembly of men on [Blennerha.s.sett's is]land, can be p.r.o.nounced 'not an overt act' [it will] be so p.r.o.nounced."[1195]

Hay's opening statement to the jury was his best performance of the entire proceedings. He described Burr's purpose in almost the very words of Jefferson's Special Message. The gathering on Blennerha.s.sett's island was, he said, the overt act; Burr, it was true, was not there at the time, but his presence was not necessary. Had not Marshall, in the Bollmann and Swartwout case, said that "if war be actually levied, ...

_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_ as _traitors_"?[1196]

The examination of the Government's witnesses began. Eaton took the stand; but Burr insisted that the overt act must be proved before collateral testimony could be admitted. So came the first crossing of swords over the point that was to save the life of Aaron Burr. The arguments of counsel were brilliant; but neither side forgot the public.

They must thrill the audience as well as convince the court. "There had been a great deal of war in the newspapers," said Wickham, but everybody knew "that there had been no war in fact." Wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." Martin pointed out that Eaton's testimony did not "relate to any _acts_ committed any where, but to mere declarations out of the district."[1197] Let the evidence be pertinent. The indictment charged a specific act, and it must be proved as charged. No man could be expected suddenly to answer for every act of his life. If Burr had planned to free Mexico and had succeeded, "he would have merited the applause of the friends of liberty and of posterity; ... but his friends may now pray that he may not meet the fate that Was.h.i.+ngton himself would have met, if the revolution had not been established."

A ma.s.s of decisions, English as well as American, were cited by both Wirt and Martin;[1198] and when, that night, Marshall began to write his opinion on whether the overt act must be proved before other testimony could be received, all authorities had been reviewed, all arguments made.

Must the overt act be proved before hearing collateral testimony? The question, said Marshall, was precisely the same as that raised and decided on the motion to commit Burr. But it came up now under different circ.u.mstances--an indictment had been found "specifying a charge which is to be proved," and thus "an issue made up which presents a point to which all the testimony must apply." So Marshall could now "determine, with some accuracy, on the relevancy of the testimony."

The prosecution contended that the crime consisted of "the fact and the intention," and that the Government might first prove either of these; the defense insisted that the overt act must be shown before any testimony, explanatory or confirmatory of that fact, can be received. To prove first the fact charged was certainly "the most useful ... and ...

natural order of testimony"; but no fixed rule of evidence required it, and no case had been cited in which any court had ever "forced" it on counsel for the prosecution.

The different impressions made upon the minds of the jury by the order of testimony was important, said Marshall: "Although human laws punish actions, the human mind spontaneously attaches guilt to intentions."

When testimony had prepared the mind to look upon the prisoner's designs as criminal, a jury would consider a fact in a different light than if it had been proved before guilty intentions had been shown. However, since no rule prevented the prosecution from first proving either, "no alteration of that arrangement ... will now be directed."

But, continued Marshall, "the intention which is ... relevant in this stage of the inquiry is the intention which composes a part of the crime, the intention with which the overt act itself was committed; not a general evil disposition, or an intention to commit a distinct [different] fact." Testimony as to such intentions, "if admissible at all, is received as corroborative or confirmatory testimony," and could not precede "that which it is to corroborate or confirm."

Apply this rule to Eaton's testimony: it would be admissible only "so far as his testimony relate[d] to the fact charged in the indictment, ... to levying war on Blennerha.s.sett's island," and the "design to seize on New-Orleans, or to separate by force, the western from the Atlantic states"; but "so far as it respect[ed] other plans to be executed in the city of Was.h.i.+ngton, or elsewhere," Eaton's story would be at best merely "corroborative testimony," and, "if admissible at any time," could be received only "after hearing that which it is to confirm."

So let Hay "proceed according to his own judgment." Marshall would not exclude any testimony except that which appeared to be irrelevant, and upon this he would decide when it was offered.[1199]

Again Eaton was called to the stand. Before he began his tale, he wished to explain "the motives" of his "own conduct." Marshall blandly suggested that the witness stick to Burr's revelations to him. Then, said Eaton, "concerning any overt act, which goes to prove Aaron Burr guilty of treason I know nothing.... But concerning Colonel Burr's expressions of treasonable intentions, I know much."

Notwithstanding Marshall's intimation that Eaton must confine his testimony to Burr, "the hero of Derne" was not to be denied his self-vindication; not even the Chief Justice should check his recital of his patriotism, his glories, his wrongs. Burr had good reasons for supposing him "disaffected toward the Government"; he then related at length his services in Africa, the lack of appreciation of his ability and heroism, the preferment of unworthy men to the neglect of himself.

Finally, Eaton, who "strutted more in buskin than usual," to the amus.e.m.e.nt of "the whole court,"[1200] delivered his testimony, and once more related what he had said in his deposition. Since Marshall had "decided it to be irrelevant," Eaton omitted the details about Burr's plans to murder Jefferson, turn Congress out of the Capitol, seize the Navy, and make himself ruler of America at one bold and b.l.o.o.d.y stroke.[1201]

Commodore Truxtun then gave the simple and direct account, already related, of Burr's conversation with him;[1202] Peter Taylor and Jacob Allbright once more told their strange tales; and the three Morgans again narrated the incidents of Burr's incredible acts and statements while visiting the elder Morgan at Morganza.[1203]

William Love, an Englishman, formerly Blennerha.s.sett's servant--a dull, ignorant, and timorous creature--testified to the gathering of "_about betwixt_ twenty and twenty-five" men at his employer's island, some of whom went "out a gunning." He saw no other arms except those belonging to his master, nor did he "see any guns presented," as Allbright had described. Blennerha.s.sett told him that if he would go with him to the Was.h.i.+ta, he should have "a piece of land." Love "understood the object of the expedition was to settle Was.h.i.+ta lands."[1204]

Dudley Woodbridge, once a partner of Blennerha.s.sett, told of Burr's purchase from his firm of a hundred barrels of pork and fifteen boats, paid by a draft on Ogden of New York; of Blennerha.s.sett's short conversation with Woodbridge about the enterprise, from which he inferred that "the object was Mexico"; of his settlement with Blennerha.s.sett of their partners.h.i.+p accounts; of Blennerha.s.sett's financial resources; and of the characteristics of the man--"very nearsighted," ignorant of military affairs, a literary person, a chemist and musician, with the reputation of having "every kind of sense but common sense."

The witness related his observation of the seizure at Marietta of Burr's few boats and provisions by the Ohio militia, and the sale of them by the Government; of the a.s.semblage of the twenty or thirty men on Blennerha.s.sett's island; of their quiet, orderly conduct; of Comfort Tyler's declaration "that he would not resist the const.i.tuted authorities, but that he would not be stopped by a mob"; of Mrs.

Blennerha.s.sett's taking part of her husband's library with her when she followed him, after the flight of the terrified little band from the island; and of the sale of the remainder of the cultivated visionary's books.[1205]

Simeon Poole, who had been sent by Governor Tiffin of Ohio to arrest Blennerha.s.sett, said that he was not on the island, but from dusk until ten o'clock watched from a concealed place on the Ohio sh.o.r.e. He saw a few men walking about, who during the night kindled a fire, by the light of which it seemed to Poole that some of them were "armed." He could not be sure from where he watched, but they "looked like sentinels."

However, Poole "could not say whether the persons ... were not merely loitering around the fire." There were some boats, he said, both big and little. Also, when anybody wanted to cross from the Ohio side, the acute Poole thought that "a watchword" was given. The night was cold, the rural sleuth admitted, and it was customary to build fires on the river-bank. He observed, however, another suspicious circ.u.mstance--"lanterns were pa.s.sing ... between the house and boats....

Most of the people were without guns," he admitted; but, although he could not see clearly, he "apprehended that some of them had guns."[1206]

Morris P. Belknap, an Ohio business man, testified that he had hailed a boat and been taken to the island on the night when the gathering and flight took place.[1207] He saw perhaps twenty men in the house; "two or three ... near the door, had rifles, and appeared to be cleaning them.

These were all the arms I saw." He also observed two or three boats.[1208]

Edmund P. Dana testified that, with two other young men, he had gone in a skiff to the island on that war-levying night.[1209] In the hall he saw about "fifteen or sixteen" men--"one of them was running some bullets." Dana was shown to another room where he met "colonel Tyler, Blennerha.s.sett, Mr. Smith of New-York ... and three or four other gentlemen." He had met Tyler the day before, and was now "introduced to Mr. Smith and Doctor M'Castle[1210] who had his lady ... there." The men in the hall "did not appear to be alarmed" when Dana and his companions came in. Dana "never saw colonel Burr on the island."[1211]

The Government's counsel admitted that Burr was in Kentucky at that time.[1212]

Such was the testimony, and the whole of it, adduced to support the charge that Burr had, at Blennerha.s.sett's island, on December 13, 1806, levied war against the United States. Such was the entire proof of that overt act as laid in the indictment when Marshall was called upon to make that momentous decision upon which the fate of Aaron Burr depended.

The defense moved that, since no overt act was proved as charged, collateral testimony as to what had been said and done elsewhere should not be received. Wickham opened the argument in an address worthy of that historic occasion. For nearly two days this superb lawyer spoke.

Burr's counsel would, he said, have preferred to go on, for they could "adduce ... conclusive testimony" as to Burr's innocence. But only seven witnesses out of "about one hundred and forty" summoned by the Government had been examined, and it was admitted that these seven had given all the testimony in existence to prove the overt act.

If that overt act had not been established and yet the more than one hundred and thirty remaining witnesses were to be examined, it was manifest that "weeks, perhaps months," would elapse before the Government completed its case. It was the unhealthy season, and it was most probable that one or more jurors would become ill. If so, said Wickham, "the cause must lie over and our client, innocent, may be subjected to a prolongation of that confinement which is in itself ...

punishment." Yet, after all this suffering, expense, and delay, the result must be the same as if the evidence were arrested now, since there was no testimony to the overt act other than that already given.

[Ill.u.s.tration: _John Wickham_]

Did that testimony, then, prove the overt act of levying war on the United States? Those who wrote the Const.i.tution "well knew the dreadful punishments inflicted and the grievous oppressions produced by [the doctrine of] constructive treasons in other countries." For this reason, truly declared Wickham, the American Const.i.tution explicitly defined that crime and prescribed the only way it could be proved. This could not be modified by the common law, since the United States, as a Nation, had not adopted it; and the purpose of the Const.i.tution was to destroy, as far as America was concerned, the British theory of treason. The Const.i.tution "explains itself," said Wickham; under it treason is a newly created offense against a newly created government. Even the Government's counsel "will not contend that the words [in the Const.i.tution concerning treason] used in their natural sense," can embrace the case of a person who never committed an act of hostility against the United States and was not even present when one was committed;[1213] otherwise what horrible cruelties any Administration could inflict on any American citizen.

The Supreme Court, in the case of Bollmann and Swartwout, had, indeed, p.r.o.nounced a "_dictum_" to the contrary, said Wickham, but that had been in a mere case of commitment; the present point did not then come before the court; it was not argued by counsel. So Marshall's objectionable language in that case was not authority.[1214]

It was only by the doctrine of constructive treason that Burr could be said to be at Blennerha.s.sett's island at the time charged--the doctrine that "in treason all are princ.i.p.als," and that, by "construction of law," he was present, although in reality he was hundreds of miles away.

But this was the very doctrine which the Const.i.tution prohibited from ever being applied in America.

If Burr "conspired to levy war against the United States, and ... the war was carried on by others in his absence, his offense can only be punished by _a special indictment charging the facts as they existed_."

The prosecution "should at once withdraw their indictment as it does not contain a specification that can be supported by the evidence."[1215]

Edmund Randolph followed Wickham, but added nothing to his rich and solid argument. Addressing Marshall personally, Randolph exclaimed: "Amidst all the difficulties of the trial, I congratulate Your Honour on having the opportunity of fixing the law, relative to this peculiar crime, on grounds which will not deceive, and with such regard for human rights, that we shall bless the day on which the sentence was given, to prevent the fate of Stafford."[1216]