The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

by Albert J. Beveridge

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 Virginians[1017] 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.[1018] 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."[1019] 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 youthful[1020] 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."[1021] 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."[1022]

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,[1023] 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.[1024]

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.[1025] "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."[1026]

Yet, six years later, Iredell avowed his belief in the doctrine of constructive treason.[1027] 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.[1028]

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,"[1029] mounted the steps of a corner grocery and harangued the glowering assemblage that gathered in front of him.[1030] 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.[1031]

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."[1032] 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."[1033]

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.[1034] 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.[1035]

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."[1036] 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.[1037] 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."[1038]

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."[1039]

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 dissipation[1040] 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.[1041]

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.[1042] 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.[1043]

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.[1044] It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.[1045]

"With regret," Burr demanded the right to challenge the remainder of the grand jury "for favour."[1046] Hay conceded the point, and Burr challenged Senator William Branch Giles. Merely upon the documents in Jefferson's Special Message to Congress, Giles had advocated that the writ of habeas corpus be suspended, and this, argued Burr, he could have done only if he supposed "that there was a rebellion or insurrection, and a public danger, of no common kind." This action of Giles was a matter of record; moreover, he had publicly made statements to the same effect.[1047]

Senator Giles admitted that he had acted and spoken as Burr charged; and while denying that he held any "personal resentments against the accused," and asserting that he could act fairly as a grand juror, he graciously offered to withdraw. Marshall mildly observed that "if any gentleman has made up and declared his mind, it would be best for him to withdraw." With superb courtesy, Burr disavowed any reflection on Giles; it was merely above "human nature" that he should not be prejudiced. "So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends."

Burr then challenged Colonel Wilson Cary Nicholas,[1048] who spiritedly demanded the objections to him. Nicholas "entertained a bitterly personal animosity" against him, replied Burr. He would not, however, insist upon "further inquiry" if Nicholas would withdraw as Giles had done. Nicholas then addressed the court. He had been a member of the National House, he said, "when the attempt was made to elect colonel Burr president," and everybody knew how he felt about that incident. He had been in the Senate for three years "while colonel Burr was president of that body," and had done all he could to nominate Clinton in Burr's stead.

His suspicions had been "very much excited" when Burr made his Western journey, and he had openly stated his "uncommon anxiety" concerning "not only the prosperity, but the union of the states." Therefore, he had not desired to serve on the grand jury and had asked the marshal to excuse him. He had finally consented solely from his delicate sense of public duty. Also, said Nicholas, he had been threatened with the publication of one of the "most severe pieces" against him if he served on the grand jury; and this inclined him to "defy [his] enemies [rather] than to ask their mercy or forbearance."

His friends had advised him not to make mention of this incident in court; but, although he was "not scrupulous of acquiring, in this way, a reputation of scrupulous delicacy," and had determined to heed the counsel of his friends, still, he now found himself so confused that he did not know just what he ought to do. On the whole, however, he thought he would follow the example of Senator Giles and withdraw.[1049]

At that very moment, Nicholas was a Republican candidate for Congress and, next to Giles, Jefferson's principal political agent in Virginia. Four days after Burr had been brought to Richmond, Jefferson had written Nicholas a letter of fulsome flattery "beseeching" him to return to the National House in the place of the President's son-in-law, Thomas Mann Randolph, who had determined to retire, and assuring him of the Republican leadership if he would do so.[1050]

Thus, for a moment, was revealed a thread of that web of intrigue and indirect influence which, throughout the trial, was woven to enmesh judge, jury, and public. Burr was instantly upon his feet denouncing in his quiet but authoritative manner the "attempt to intimidate" Nicholas as "a contrivance of some of [his] enemies for the purpose of irritating" the hot-blooded Republican politician "and increasing the public prejudice against [Burr]; since it was calculated to throw suspicion on [his] cause." Neither he nor his friends had ever "sanctioned" such an act; they were wholly ignorant of it, and viewed it "with indignation."[1051]

Mr. Joseph Eggleston, another of the grand jurors, now asked to be excused because he had declared his belief of Burr's guilt; but he admitted, in answer to Marshall's questions, that he could act justly in the impending investigation. Burr said that he would not object to Eggleston: "the industry which has been used through this country [Virginia] to prejudice my cause, leaves me very little chance, indeed, of an impartial jury." Eggleston's "candour ... in excepting to himself" caused Burr to hope that he would "endeavour to be impartial." But let Marshall decide—Burr would be "perfectly passive."[1052] The scrupulous grand juror was retained.

John Randolph and Dr. William Foushee were then added to the grand jury panel and Marshall appointed Randolph foreman.[1053] He promptly asked to be excused because of his "strong prepossession." "Really," observed Burr, "I am afraid we shall not be able to find any man without this prepossession." Marshall again stated "that a man must not only have formed but declared an opinion in order to excuse him from serving on the jury." So Randolph was sworn as foreman, the oath administered to all, and at last the grand jury was formed.[1054]

Marshall then instructed the jury, the substance of his charge being to the same effect as his opinion in the case of Bollmann and Swartwout. Burr asked the Chief Justice also to advise the men who were to decide the question of his indictment "as to the admissability of certain evidence" which he supposed Hay would lay before them. The District Attorney objected to any favor being shown Burr, "who," he declared, "stood on the same footing with every other man charged with crime."

For once Burr unleashed his deep but sternly repressed feeling: "Would to God," he cried, his voice vibrant with emotion, "that I did stand on the same ground with every other man. This is the first time [since the military seizure] that I have been permitted to enjoy the rights of a citizen. How have I been brought hither?" Marshall checked this passionate outburst: it was not proper, he admonished both Hay and Burr, to "go into these digressions."

His composure restored, Burr insisted that he should be accorded "the same privileges and rights which belonged to every other citizen." He would not now urge his objections to Marshall's opinion in the Bollmann-Swartwout case;[1055] but he pointed out "the best informed juryman might be ignorant of many points ... relating to testimony, ... for instance, as to the article of papers," and he wished Marshall to inform the jury on these matters of law.

A brief, sharp debate sprang up, during which Burr's counsel spoke of the "host of prejudices raised against [their] client," taunted Hay with his admission "that there was no man who had not formed an opinion," and denounced "the activity of the Government."[1056] Upon Hay's pledging himself that he would submit no testimony to the grand jury "without notice being first given to Colonel Burr and his counsel," Marshall adjourned the court that the attorneys might prepare for "further discussion." The Government was not ready to present any testimony on either the following day or on Monday because its principal witness, General Wilkinson, had not arrived.

Hay now sent Jefferson his first report of the progress of the case. Burr had steadily been making friends, and this irritated the District Attorney more than the legal difficulties before him. "I am surprised, and afflicted, when I see how much, and by how many, this man has been patronised and supported." Hay assured Jefferson, however, that he would "this day move to commit him for treason."[1057] Accordingly, he announced in the presence of the grand jury that he would again ask the court to imprison Burr on that accusation. In order, he said, that the impropriety of mentioning the subject in their presence might be made plain, Burr moved that the grand jury be withdrawn. Marshall sustained the motion; and after the grand jury had retired, Hay formally moved the court to order Burr's incarceration upon the charge of treason.[1058]

Burr's counsel, surprised and angered, loudly complained that no notice had been given them. With a great show of generosity, Hay offered to delay his motion until the next day. "Not a moment's postponement," shouted Botts, his fighting nature thoroughly aroused. Hay's "extraordinary application," he said, was to place upon the court the functions of the grand jury. Burr wanted no delay. His dearest wish was to "satisfy his country ... and even his prosecutors, that he is innocent." Was ever a man so pursued? He had been made the victim of unparalleled military despotism; his legal rights had been ignored; his person and papers unlawfully seized. The public had been excited to anger. Through newspaper threats and "popular clamor" attempts had been made to intimidate every officer of the court. Consider "the multitude around us"—they must not be further infected "with the poison already too plentifully infused."

Did Hay mean to "open the case more fully?" inquired Marshall. No, answered Hay; but Wilkinson's arrival in Virginia might be announced before he reached Richmond. Who could tell the effect on Burr of such dread tidings? The culprit might escape; he must be safely held.[1059] "The bets were against Burr that he would abscond, should W. come to Richmond."[1060]

If Wilkinson is so important a witness, "why is he not here?" demanded Wickham. Everybody knew that "a set of busy people ... are laboring to ruin" Burr. "The press, from one end of the continent to the other, has been enlisted ... to excite prejudices" against him. Let the case be decided upon "the evidence of sworn witnesses" instead of "the floating rumours of the day."

Did the Government's counsel wish that "the multitude around us should be prejudiced by garbled evidences?" Wickham avowed that he could not understand Hay's motives, but of this he was sure—that if, thereafter, the Government wished to oppress any citizen, drag him by military force over the country, prejudice the people against him, it would "pursue the very same course which has now been taken against colonel Burr." The prosecution admitted that it had not enough evidence to lay before the grand jury, yet they asked to parade what they had before the court. Why?—"to nourish and keep alive" the old prejudices now growing stale.[1061]

Wirt answered at great length. He understood Wickham's purpose, he said. It was to "divert the public attention from Aaron Burr," and "shift the popular displeasure ... to another quarter." Wickham's speech was not meant for the court, exclaimed Wirt, but for "the people who surround us," and so, of course, Marshall would not heed it. Burr's counsel "would convert this judicial inquiry into a political question ... between Thomas Jefferson and Aaron Burr."

Not to be outdone by his gifted associate, Hay poured forth a stream of words: "Why does he [Burr] turn from defending himself to attack the administration?" he asked. He did not answer his own question, but Edmund Randolph did: "An order has been given to treat colonel Burr as an outlaw, and to burn and destroy him and his property." Jefferson, when requested, had furnished the House information;—"would to God he had stopped here, as an executive officer ought to have done!" But instead he had also pronounced Burr guilty—an opinion calculated to affect courts, juries, the people. Wickham detailed the treatment of Burr, "the only man in the nation whose rights are not secure from violation."[1062]

Burr himself closed this unexpected debate, so suddenly thrust upon his counsel and himself. His speech is a model of that simple, perspicuous, and condensed statement of which he was so perfectly the master. He presented the law, and then, turning to Hay, said that two months previous the District Attorney had declared that he had enough evidence to justify the commitment, and surely he must have it now. Nearly half a year had elapsed since Jefferson had "declared that there was a crime," and yet, even now, the Government was not ready. Nevertheless, the court was again asked to imprison him for an alleged offense for which the prosecution admitted it had not so much as the slight evidence required to secure his indictment by the grand jury.

Were the Government and he "on equal terms?" Far from it. "The United States [could] have compulsory process" to obtain affidavits against him but he had "no such advantage." So the prosecution demanded his imprisonment on ex parte evidence which would be contradicted by his own evidence if he could adduce it. Worse still! The Government affidavits against him "are put into the newspapers, and they fall into the hands of the grand jury." Meanwhile, he was helpless. And now the opinion of the court was also to be added to the forces working to undo him.

Wirt and Hay had charged his counsel "with declamation against the government." Certainly nobody could attribute "declamation" to him; but, said Burr, his restrained voice tense with suppressed emotion, "no government is so high as to be beyond the reach of criticism"—that was a fundamental principle of liberty. This was especially true when the Government prosecuted a citizen, because of "the vast disproportion of means which exists between it and the accused." And "if ever there was a case which justified this vigilance, it is certainly the present one"; let Marshall consider the "uncommon activity" of the Administration.

Burr would, he said, "merely state a few" of the instances of "harrassing, ... contrary to law" to which he had been subjected. His "friends had been every where seized by the military authority," dragged before "particular tribunals," and forced to give testimony; his papers taken; orders to kill him issued; post-offices broken open and robbed—"nothing seemed too extravagant to be forgiven by the amiable morality of this government." Yet it was for milder conduct that Americans rightly condemned "European despotisms."

The President was a great lawyer; surely "he ought to know what constitutes war. Six months ago he proclaimed that there was a civil war. And yet, for six months they have been hunting for it and cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but no where else." He had been haled before the court in Kentucky—and no proof; in Mississippi—and no proof. The Spaniards actually invaded American territory—even then there was no war.

Thus early the record itself discloses the dramatic, and, for Marshall, perilous, conditions under which this peculiar trial was to be conducted. The record makes clear, also, the plan of defense which Burr and his counsel were forced to adopt. They must dull the edge of public opinion sharpened to a biting keenness by Jefferson. They must appeal to the people's hatred of oppression, fear of military rule, love of justice. To do this they must attack, attack, always attack.

They must also utilize every technical weapon of the law. At another time and place they could have waived, to Burr's advantage, all legal rights, insisted upon his indictment, and gone to trial, relying only upon the evidence. But not in the Virginia of 1807, with the mob spirit striving to overawe jury and court, and ready to break out in violent action—not at the moment when the reign of Thomas Jefferson had reached the highest degree of popular idolatry.

Just as Hay, Wirt, and MacRae generally spoke to the spectators far more than to the Bench, so did Wickham, Randolph, Botts, and Martin.[1063] Both sides so addressed the audience that their hearers were able to repeat to the thousands who could not get into the hall what had been said by the advocates. From the very first the celebrated trial of Aaron Burr was a contest for the momentary favor of public opinion; and, in addition, on the part of Burr, an invoking of the law to shield him from that popular wrath which the best efforts of his defenders could not wholly appease.

Marshall faced a problem of uncommon difficulty. It was no small matter to come between the populace and its prey—no light adventure to brave the vengeance of Thomas Jefferson. Not only his public repute[1064]—perhaps even his personal safety[1065] and his official life[1066]—but also the now increasing influence and prestige of the National Judiciary were in peril. However, he must do justice no matter what befell—he must, at all hazards, pronounce the law truly and enforce it bravely, but with elastic method. He must be not only a just, but also an understanding, judge.

When court opened next morning, Marshall was ready with a written opinion. Concisely he stated the questions to be decided: Had the court the power to commit Burr, and, if so, ought the circumstances to restrain the exercise of it? Neither side had made the first point, and Marshall mentioned it only "to show that it [had] been considered." Briefly he demonstrated that the court was clothed with authority to grant Hay's motion. Should that power, then, be exerted? Marshall thought that it should. The Government had the right to ask Burr's incarceration at any time, and it was the duty of the court to hear such a motion.

Thus far spoke Marshall the judge. In the closing sentences the voice of the politician was heard: "The court perceives and regrets that the result of this motion may be publications unfavourable to the justice, and to the right decision of the case"; but this must be remedied "by other means than by refusing to hear the motion." Every honest and intelligent man extremely deplored "any attempt ... to prejudice the public judgment, and to try any person," not by the law and the evidence, but "by public feelings which may be and often are artificially excited against the innocent, as well as the guilty, ... a practice not less dangerous than it is criminal." Nevertheless he could not "suppress motions, which either party may have a legal right to make." So, if Hay persisted, he might "open his testimony."[1067]

While Marshall, in Richmond, was reading this opinion, Jefferson, in Washington, was writing directions to Hay. He was furious at "the criminal and voluntary retirement" of Giles and Nicholas from the grand jury "with the permission of the court." The opening of the prosecution had certainly begun "under very inauspicious circumstances." One thing was clear: "It becomes our duty to provide that full testimony shall be laid before the Legislature, and through them the public."

If the grand jury should indict Burr, then Hay must furnish Jefferson with all the evidence, "taken as verbatim as possible." Should Burr not be indicted, and no trial held and no witnesses questioned in court, then Hay must "have every man privately examined by way of affidavit," and send Jefferson "the whole testimony" in that form. "This should be done before they receive their compensation, that they may not evade examination. Go into any expense necessary for this purpose,[1068] & meet it from the funds provided to the Attorney general for the other expenses."[1069]

Marshall's decision perplexed Hay. It interfered with his campaign of publicity. If only Marshall had denied his motion, how effectively could that incident have been used on public sentiment! But now the Republican press could not exclaim against Marshall's "leniency" to "traitors" as it had done. The people were deprived of fresh fuel for their patriotic indignation. Jefferson would be at a loss for a new pretext to arouse them against the encroachments of the courts upon their "liberties."

Hay strove to retrieve the Government from this disheartening situation. He was "struck," he said, with Marshall's reference to "publications." To avoid such newspaper notoriety, he would try to arrange with Burr's counsel for the prisoner's appearance under additional bail, thus avoiding insistence upon the Government's request for the imprisonment of the accused. Would Marshall adjourn court that this amicable arrangement might be brought about? Marshall would and did.

But next day found Hay unrelieved; Burr's counsel had refused, in writing, to furnish a single dollar of additional bail. To his intense regret, Hay lamented that he was thus forced to examine his witnesses. Driven to this unpleasant duty, he would follow the "chronological order—first the depositions of the witnesses who were absent, and afterwards those who were present."[1070]

The alert Wickham demanded "strict legal order." The Government must establish two points: the perpetration of an overt act, and "that colonel Burr was concerned in it."[1071] Hay floundered—there was one great plot, he said, the two parts of it "intimately blended"; the projected attack on Spain and the plot to divide the Union were inseparable—he must have a free hand if he were to prove this wedded iniquity. Was Burr afraid to trust the court?

Far from it, cried Wickham, "but we do fear to prejudicate the mind of the grand jury.... All propriety and decorum have been set at naught; every idle tale which is set afloat has been eagerly caught at. The people here are interested by them; and they circulate all over the country."[1072] Marshall interrupted: "No evidence certainly has any bearing ... unless the overt act be proved." Hay might, however, "pursue his own course."

A long altercation followed. Botts made an extended speech, in the course of which he discredited the Government's witnesses before they were introduced. They were from all over the country, he said, their "names, faces and characters, are alike unknown to colonel Burr." To what were they to testify? Burr did not know—could not possibly ascertain. "His character has long been upon public torture; and wherever that happens ... the impulses to false testimony are numerous. Sometimes men emerge from the sinks of vice and obscurity into patronage and distinction by circulating interesting tales, as all those of the marvelous kind are. Others, from expectation of office and reward, volunteer; while timidity, in a third class, seeks to guard against the apprehended danger, by magnifying trifling stories of alarm.... When they are afterwards called to give testimony, perjury will not appal them, if it be necessary to save their reputations." Therefore, reasoned Botts—and most justly—strict rules of evidence were necessary.[1073]

Hay insisted that Wilkinson's affidavit demonstrated Burr's intentions. That "goes for nothing," said Marshall, "if there was no other evidence to prove the overt act." Therefore, "no part of it [was] admissible at this time."[1074] Thrice Marshall patiently reminded Government counsel that they charged an overt act of treason and must prove it.[1075]

Hay called Peter Taylor, Blennerhassett's former gardener, and Jacob Allbright, once a laborer on the eccentric Irishman's now famous island. Both were illiterate and in utter terror of the Government. Allbright was a Dutchman who spoke English poorly; Taylor was an Englishman; and they told stories equally fantastic. Taylor related that Mrs. Blennerhassett had sent him to Kentucky with a letter to Burr warning him not to return to the island; that Burr was surprised at the people's hostility; that Blennerhassett, who was also in Kentucky, confided they were going to take Mexico and make Burr king, and Theodosia queen when her father died; also that Burr, Blennerhassett, and their friends had bought "eight hundred thousand acres of land" and "wanted young men to settle it," and that any of these who should prove refractory, he [Blennerhassett] said, "by God, ... I will stab"; that Blennerhassett had also said it would be a fine thing to divide the Union, but Burr and himself could not do it alone.

Taylor further testified that Blennerhassett once sent him with a letter to a Dr. Bennett, who lived in Ohio, proposing to buy arms in his charge belonging to the United States—if Bennett could not sell, he was to tell where they were, and Blennerhassett "would steal them away in the night"; that his employer charged him "to get [the letter] back and burn it, for it contained high treason"; and that the faithful Taylor had done this in Bennett's presence.

Taylor narrated the scene on the island when Blennerhassett and thirty men in four boats fled in the night: some of the men had guns and there was some powder and lead.[1076]

Jacob Allbright told a tale still more marvelous. Soon after his employment, Mrs. Blennerhassett had come to this dull and ignorant laborer, while he was working on a kiln for drying corn, and confided to him that Burr and her husband "were going to lay in provisions for an army for a year"; that Blennerhassett himself had asked Allbright to join the expedition which was going "to settle a new country." Two men whom the Dutch laborer met in the woods hunting had revealed to him that they were "Burr's men," and had disclosed that "they were going to take a silver mine from the Spanish"; that when the party was ready to leave the island, General Tupper of Ohio had "laid his hands upon Blennerhassett and said, 'your body is in my hands in the name of the commonwealth,'" whereupon "seven or eight muskets [were] levelled" at the General; that Tupper then observed he hoped they would not shoot, and one of the desperadoes replied, "I'd as lieve as not"; and that Tupper then "changed his speech," wished them "to escape safe," and bade them Godspeed.

Allbright and Taylor were two of the hundreds to whom the Government's printed questions had been previously put by agents of the Administration. In his answers to these, Allbright had said that the muskets were pointed at Tupper as a joke.[1077] Both Taylor and he swore that Burr was not on the island when Blennerhassett's men assembled there and stealthily departed in hasty flight.

To the reading of the deposition of Jacob Dunbaugh, Burr's counsel strenuously objected. It was not shown that Dunbaugh himself could not be produced; the certification of the justice of the peace, before whom the deposition was taken, was defective. For the remainder of the day the opposing lawyers wrangled over these points. Marshall adjourned court and "took time to consider the subject till the next day"; when, in a long and painfully technical opinion, he ruled that Dunbaugh's affidavit could not be admitted because it was not properly authenticated.[1078]

LUTHER MARTIN

May 28, when the court again convened, was made notable by an event other than the reading of the unnecessarily long opinion which Marshall had written during the night: the crimson-faced, bellicose superman of the law, Luther Martin, appeared as one of Burr's counsel.[1079] The great lawyer had formed an ardent admiration and warm friendship for Burr during the trial of the Chase impeachment,[1080] and this had been intensified when he met Theodosia, with whom he became infatuated.[1081] He had voluntarily come to his friend's assistance, and soon threw himself into the defense of Burr with all the passion of his tempestuous nature and all the power and learning of his phenomenal intellect.

After vexatious contendings by counsel as to whether Burr should give additional bail,[1082] Marshall declared that "as very improper effects on the public mind [might] be produced," he wished that no opinion would be required of him previous to the action of the grand jury; and that the "appearance of colonel Burr could be secured without ... proceeding in this inquiry." Burr denied the right of the court to hold him on bail, but said that if Marshall was "embarrassed," he voluntarily would furnish additional bail, "provided it should be understood that no opinion on the question even of probable cause was pronounced by the court."[1083] Marshall agreed; and Burr with four sureties, among whom was Luther Martin, gave bond for ten thousand dollars more.[1084]

Day after day, court, grand jury, counsel, and spectators awaited the coming of Wilkinson. The Government refused to present any testimony to the grand jury until he arrived, although scores of witnesses were present. Andrew Jackson was very much in town, as we have seen. So was Commodore Truxtun. And "General" William Eaton was also on hand, spending his time, when court was not in session, in the bar-rooms of Richmond.

Wearing a "tremendous hat," clad in gay colored coat and trousers, with a flaming Turkish belt around his waist, Eaton was already beginning to weaken the local hatred of Burr by his loud blustering against the quiet, courteous, dignified prisoner.[1085] Also, at gambling-tables, and by bets that Burr would be convicted, the African hero was making free with the ten thousand dollars paid him by the Government soon after he made the bloodcurdling affidavit[1086] with which Jefferson had so startled Congress and the country.

While proceedings lagged, Marshall enjoyed the dinners and parties that, more than ever, were given by Richmond society. On one of these occasions that eminent and ardent Republican jurist, St. George Tucker, was present, and between him and Marshall an animated discussion grew out of the charge that Burr had plotted to cause the secession of the Western States; it was a forecast of the tremendous debate that was to end only at Appomattox. "Judge Tucker, though a violent Democrat," records Blennerhassett, "seriously contended ... with Judge Marshall ... that any State in the Union is at any time competent to recede from the same, though Marshall strongly opposed this doctrine."[1087]

Hay wrote Jefferson of the slow progress of the case, and the President "hastened" to instruct his district attorney: If the grand jury should refuse to indict Burr, Hay must not deliver the pardon to Bollmann; otherwise, "his evidence is deemed entirely essential, & ... his pardon is to be produced before he goes to the book." Jefferson had become more severe as he thought of Bollmann, and now actually directed Hay to show, in open court, to this new object of Presidential displeasure, the "sacredly confidential" statement given Jefferson under pledge of the latter's "word of honor" that it should never leave his hand. Hay was directed to ask Bollmann whether "it was not his handwriting."[1088]

With the same ink on his pen the President wrote his son-in-law that he had heard only of the first day of the trial, but was convinced that Marshall meant to do all he could for Burr. Marshall's partiality showed, insisted Jefferson, "the original error of establishing a judiciary independent of the nation, and which, from the citadel of the law can turn it's guns on those they were meant to defend, & controul & fashion their proceedings to it's own will."[1089]

Hay quickly answered Jefferson: The trial had "indeed commenced under inauspicious circumstances," and doubtless these would continue to be unfavorable. Nobody could predict the outcome. Hay was so exhausted and in such a state of mind that he could not describe "the very extraordinary occurrences in this very extraordinary examination." Burr's "partizans" were gloating over the failure of Wilkinson to arrive. Bollmann would neither accept nor reject the pardon; he was "as unprincipled as his leader." Marshall's refusal to admit Dunbaugh's affidavit was plainly illegal—"his eyes [were] almost closed" to justice.[1090]

Jefferson now showered Hay with orders. The reference in argument to Marshall's opinion in Marbury vs. Madison greatly angered him: "Stop ... citing that case as authority, and have it denied to be law," he directed Hay, and gave him the arguments to be used against it. An entire letter is devoted to this one subject: "I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention."

Hay was openly to declare that the President rejected Marshall's opinion in that case as having been "given extra-judicially & against law," and that the reverse of it would be Jefferson's "rule of action." If necessary, Hay might state that the President himself had said this.[1091]

Back and forth went letters from Hay to Jefferson and from Jefferson to Hay,[1092] the one asking for instructions and the other eagerly supplying them. To others, however, the President explained that he could take no part in any judicial proceeding, since to do so would subject him to "just censure."[1093]

In spite of the abundance of Government witnesses available, the prosecution refused to go on until the redoubtable savior of his country had arrived from New Orleans. Twice the grand jury had to be dismissed for several days, in order, merrily wrote Washington Irving, "that they might go home, see their wives, get their clothes washed, and flog their negroes."[1094] A crowd of men ready to testify was held. The swarms of spectators waited with angry impatience. "If the great hero of the South does not arrive, it is a chance if we have any trial this term,"[1095] commented Irving.

During this period of inaction and suspense, suddenly arose one of the most important and exciting questions of the entire trial. On June 9, while counsel and court were aimlessly discussing Wilkinson's journey to Richmond, Burr arose and said that he had a "proposition to submit" to the court. The President in his Message to Congress had made mention of the letter and other papers dated October 21, which he had received from Wilkinson. It had now become material that this letter should be produced in court.

Moreover, since the Government had "attempted to infer certain intentions on [his] part, from certain transactions," such as his flight from Mississippi, it had become necessary to prove the conditions that forced him to attempt that escape. Vital among these were orders of the Government to the army and navy "to destroy" Burr's "person and property." He had seen these orders in print,[1096] and an officer had assured him that such instructions had actually been issued. It was indispensable that this be established. The Secretary of the Navy had refused to allow him or his counsel to inspect these orders. "Hence," maintained Burr, "I feel it necessary ... to call upon [the court] to issue a subpœna to the President of the United States, with a clause, requiring him to produce certain papers; or in other words, to issue the subpœna duces tecum." If Hay would agree to produce these documents, the motion would not be made.[1097]

Hay was sadly confused. He would try to get all the papers wanted if Marshall would say that they were material. How, asked Marshall, could the court decide that question without inspecting the papers? "Why ... issue a subpœna to the President?" inquired Hay. Because, responded Marshall, "in case of a refusal to send the papers, the officer himself may be present to show cause. This subpœna is issued only where fears of this sort are entertained."

Counsel on both sides became angry. Hay denied the authority of the court to issue such a writ. Marshall called for argument, because, he said, "I am not prepared to give an opinion on this point."[1098] Thus arose the bitter forensic struggle that preceded Marshall's historic order to Jefferson to come into court with the papers demanded, or to show cause why he should not do so.

Hay instantly dispatched the news to Jefferson; he hoped the papers would be "forwarded without delay," because "detention of them will afford [Burr] pretext for clamor." Besides, "L. Martin has been here a long time, perfectly inactive"; he was yearning to attack Jefferson and this would "furnish a topic."[1099]

The President responded with dignified caution: "Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom, I assure you of my readiness under that restriction, voluntarily to furnish on all occasions, whatever the purposes of justice may require." He had given the Wilkinson letter, he said, to the Attorney-General, together with all other documents relating to Burr, and had directed the Secretary of War to search the files so that he (Jefferson) could "judge what can & ought to be done" about sending any order of the Department to Richmond.[1100]

When Marshall opened court on June 10, Burr made affidavit that the letters and orders might be material to his defense. Hay announced that he had written Jefferson to send the desired papers and expected to receive them within five days. They could not, however, be material, and he did not wish to discuss them. Martin insisted that the papers be produced. Wickham asked what Hay was trying to do—probably trying to gain time to send to Washington for instructions as to how the prosecution should now act.

Was not "an accused man ... to obtain witnesses in his behalf?" Never had the denial of such a right been heard of "since the declaration of American Independence." The despotic treatment of Burr called aloud not only for the court's protection of the persecuted man, but "to the protection of every citizen in the country as well."[1101] So it seemed to that discerning fledgling author, Washington Irving. "I am very much mistaken," he wrote, "if the most underhand ... measures have not been observed toward him. He, however, retains his serenity."[1102]

Luther Martin now took the lead: Was Jefferson "a kind of sovereign?" No! "He is no more than a servant of the people." Yet who could tell what he would do? In this case his Cabinet members, "under presidential influence," had refused copies of official orders. In another case "the officers of the government screened themselves ... under the sanction of the president's name."[1103] The same might be done again; for this reason Burr applied "directly to the president." The choleric legal giant from Maryland could no longer restrain his wrath: "This is a peculiar case," he shouted. "The president has undertaken to prejudice my client by declaring, that 'of his guilt there can be 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 that country, which has rewarded him. He has let slip the dogs of war, the hell-hounds 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?" That was a denial of "a sacred principle. Whoever withholds, wilfully, information that would save the life of a person, charged with a capital offence, is substantially a murderer, and so recorded in the register of heaven." Did Jefferson want Burr convicted? Impossible thought! "Would the president of the United States give his enemies ... the proud opportunity of saying that colonel Burr is the victim of anger, jealousy and hatred?" Interspersed with these outbursts of vitriolic eloquence, Martin cited legal authorities. Never, since the days of Patrick Henry, had Richmond heard such a defiance of power.[1104]

Alexander MacRae did his best to break the force of Martin's impetuous attack. The present question was "whether this court has the right to issue a subpœna duces tecum, addressed to the president of the United States." MacRae admitted that "a subpœna may issue against him as well as against any other man." Still, the President was not bound to disclose "confidential communications." Had not Marshall himself so ruled on that point in the matter of Attorney-General Lincoln at the hearing in Marbury vs. Madison?[1105]

Botts came into the fray with his keen-edged sarcasm. Hay and Wirt and MacRae had "reprobated" the action of Chase when, in the trial of Cooper, that judge had refused to issue the writ now asked for; yet now they relied on that very precedent. "I congratulate them upon their dereliction of the old democratic opinions."[1106]

Wirt argued long and brilliantly. What were the "orders," military and naval, which had been described so thrillingly? Merely to "apprehend Aaron Burr, and if ... necessary ... to destroy his boats." Even the "sanguinary and despotic" orders depicted by Burr and his counsel would have been a "great and glorious virtue" if Burr "was aiming a blow at the vitals of our government and liberty." Martin's "fervid language" had not been inspired merely by devotion to "his honourable friend," said Wirt. It was the continued pursuit of a "policy settled ... before Mr. Martin came to Richmond." Burr's counsel, on the slightest pretext, "flew off at a tangent ... to launch into declamations against the government, exhibiting the prisoner continually as a persecuted patriot: a Russell or a Sidney, bleeding under the scourge of a despot, and dying for virtue's sake!"

He wished to know "what gentlemen can intend, expect, or hope, from these perpetual philippics against the government? Do they flatter themselves that this court feel political prejudices which will supply the place of argument and of innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort." What would a foreigner "infer from hearing ... the judiciary told that the administration are 'blood hounds,' hunting this man with a keen and savage thirst for blood," and witnessing the court receive this language "with all complacency?" Surely no conclusion could be made very "honourable to the court. It would only be inferred, while they are thus suffered to roll and luxuriate in these gross invectives against the administration, that they are furnishing the joys of a Mahomitan paradise to the court as well as to their client."[1107]

Here was as bold a challenge to Marshall as ever Erskine flung in the face of judicial arrogance; and it had effect. Before adjourning court, Marshall addressed counsel and auditors: he had not interfered with assertions of counsel, made "in the heat of debate," although he had not approved of them. But now that Wirt had made "a pointed appeal" to the court, and the Judges "had been called upon to support their own dignity, by preventing the government from being abused," he would express his opinion. "Gentlemen on both sides had acted improperly in the style and spirit of their remarks; they had been to blame in endeavoring to excite the prejudices of the people; and had repeatedly accused each other of doing what they forget they have done themselves." Marshall therefore "expressed a wish that counsel ... would confine themselves on every occasion to the point really before the court; that their own good sense and regard for their characters required them to follow such a course." He "hoped that they would not hereafter deviate from it."[1108]

His gentle admonition was scarcely heeded by the enraged lawyers. Wickham's very "tone of voice," exclaimed Hay, was "calculated to excite irritation, and intended for the multitude." Of course, Jefferson could be subpœnaed as a witness; that was in the discretion of the court. But Marshall ought not to grant the writ unless justice required it. The letter might be "of a private nature"; if so, it ought not to be produced. Martin's statement that Burr had a right to resist was a "monstrous ... doctrine which would have been abhorred even in the most turbulent period of the French revolution, by the jacobins of 1794!"

Suppose, said Hay, that Jefferson had been "misled," and that "Burr was peaceably engaged in the project of settling his Washita lands!" Did that give him "a right to resist the president's orders to stop him?" Never! "This would be treason." The assertion of the right to disobey the President was the offspring of "a new-born zeal of some of the gentlemen, in defence of the rights of man."[1109]

Why await the arrival of Wilkinson? asked Edmund Randolph. What was expected of "that great accomplisher of all things?" Apparently this: "He is to support ... the sing-song and the ballads of treason and conspiracy, which we have heard delivered from one extremity of the continent to the other. The funeral pile of the prosecution is already prepared by the hands of the public attorney, and nothing is wanting to kindle the fatal blaze but the torch of James Wilkinson," who "is to officiate as the high priest of this human sacrifice.... Wilkinson will do many things rather than disappoint the wonder-seizing appetite of America, which for months together he has been gratifying by the most miraculous actions." If Burr were found guilty, Wilkinson would stand acquitted; if not, then "the character, the reputation, every thing ... will be gone for ever from general Wilkinson."

Randolph's speech was a masterpiece of invective. "The President testifies, that Wilkinson has testified to him fully against Burr; then let that letter be produced. The President's declaration of Burr's guilt is unconstitutional." It was not the business of the President "to give opinions concerning the guilt or innocence of any person." Directly addressing Marshall, Randolph continued: "With respect to your exhortation," that Burr's appeal was to the court alone, "we demand justice only, and if you cannot exorcise the demon of prejudice, you can chain him down to law and reason, and then we shall have nothing to fear."[1110]

The audacious Martin respected Marshall's appeal to counsel even less than Hay and Randolph had done. The prosecution had objected to the production of Wilkinson's mysterious letter to Jefferson because it might contain confidential statements. "What, sir," he shouted, "shall the cabinet of the United States be converted into a lion's mouth of Venice, or into a repertorium of the inquisition? Shall envy, hatred, and all the malignant passions pour their poison into that cabinet against the character and life of a fellow citizen, and yet that cabinet not be examined in vindication of that character and to protect that life?"

Genuine fury shook Martin. "Is the life of a man, lately in high public esteem ... to be endangered for the sake of punctilio to the president?" Obey illegal orders! "If every order, however arbitrary and unjust, is to be obeyed, we are slaves as much as the inhabitants of Turkey. If the presidential edicts are to be the supreme law, and the officers of the government have but to register them, as formerly in France, ... we are as subject to despotism, as ... the subjects of the former 'Grands Monarques.'"[1111]

Now occurred as strange a mingling of acrimony and learning as ever enlightened and enlivened a court. Burr's counsel demanded that Marshall deliver a supplementary charge to the grand jury. Marshall was magnificently cautious. He would, he said, instruct the jury as confused questions arose. On further reflection and argument—Marshall's dearly beloved argument—he wrote additional instructions,[1112] but would not at present announce them. There must be an actual "levying of war"; the overt act must be established; no matter what suspicions were entertained, what plans had been formed, what enterprises had been projected, there could be "no treason without an overt act."[1113]

In such would-and-would-not fashion Marshall contrived to waive this issue for the time being. Then he delivered that opinion which proved his courage, divided Republicans, stirred all America, and furnished a theme of disputation that remains fresh to the present day. He decided to grant Burr's demand that Jefferson be called into court with the papers asked for.

The purpose of the motion was, said Marshall, to produce copies of the army and navy orders for the seizure of Burr, the original of Wilkinson's letter to Jefferson, and the President's answer. To accomplish this object legally, Burr had applied for the well-known subpœna duces tecum directed to the President of the United States.

The objection that until the grand jury had indicted Burr, no process could issue to aid him to obtain testimony, was, Marshall would not say new elsewhere, but certainly it had never before been heard of in Virginia. "So far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country [Virginia] has been, to permit any individual ... charged with any crime, to prepare for his defence and to obtain the process of the court, for the purpose of enabling him so to do." An accused person must expect indictment, and has a right to compel the attendance of witnesses to meet it. It was perhaps his duty to exercise that right: "The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial."

In all criminal prosecutions the Constitution, Marshall pointed out, guarantees to the prisoner "a speedy and public trial, and to compulsory process for obtaining witnesses in his favour." The courts must hold this "sacred," must construe it "to be something more than a dead letter." Moreover, the act of Congress undoubtedly contemplated "that, in all capital cases, the accused shall be entitled to process before indictment found." Thus "immemorial usage," the language of the Constitution, the National statute, all combined to give "any person, charged with a crime in the courts of the United States, ... a right, before, as well as after indictment, to the process of the court to compel the attendance of his witnesses."

But could "a subpœna duces tecum be directed to the president of the United States?" If it could, ought it to be "in this case"? Neither in the Constitution nor in an act of Congress is there any exception whatever to the right given all persons charged with crime to compel the attendance of witnesses. "No person could claim an exemption." True, in Great Britain it was considered "to be incompatible with his dignity" for the King "to appear under the process of the court." But did this apply to the President of the United States? Marshall stated the many differences between the status of the British King and that of the American President.

The only possible ground for exempting the President "from the general provisions of the constitution" would be, of course, that "his duties ... demand his whole time for national objects. But," continued Marshall, "it is apparent, that this demand is not unremitting"—a statement at which Jefferson took particular offense.[1114] Should the President be so occupied when his presence in court is required, "it would be sworn on the return of the subpœna, and would rather constitute a reason for not obeying the process of the court, than a reason against its being issued."

To be sure, any court would "much more cheerfully" dispense with the duty of issuing a subpœna to the President than to perform that duty; "but, if it be a duty, the court can have no choice" but to perform it.

If, "as is admitted by counsel for the United States," the President may be "summoned to give his personal attendance to testify," was that power nullified because "his testimony depends on a paper in his possession, not on facts which have come to his knowledge otherwise than by writing?" Such a distinction is "too much attenuated to be countenanced in the tribunals of a just and humane nation."[1115] The character of the paper desired as evidence, and not "the character of the person who holds it," determines "the propriety of introducing any paper ... as testimony."

It followed, then, that "a subpœna duces tecum may issue to any person to whom an ordinary subpœna may issue." The only difference between the two writs is that one requires only the attendance of the witness, while the other directs also "bringing with him a paper in his custody."

In many States the process of subpœna duces tecum issues of course, and without any action of the judge. In Virginia, however, leave of the court is required; but "no case exists ... in which the motion ... has been denied or in which it has been opposed," when "founded on an affidavit."

The Chief Justice declared that he would not issue the writ if it were apparent that the object of the accused in applying for it was "not really in his own defence, but for purposes which the court ought to discountenance. The court would not lend its aid to motions obviously designed to manifest disrespect to the government; but the court has no right to refuse its aid to motions for papers to which the accused may be entitled, and which may be material in his defence." If this was true in the matter of Burr's application, "would it not be a blot in the page, which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied the use" of papers on which his life might depend?

Marshall carefully examined a case cited by the Government[1116] in which Justice Paterson had presided, at the same time paying to the memory of the deceased jurist a tribute of esteem and affection. He answered with tedious particularity the objections to the production of Wilkinson's letter to Jefferson, and then referred to the "disrespect" which the Government counsel had asserted would be shown to the President if Marshall should order him to appear in court with the letters and orders.

"This court feels many, perhaps peculiar motives, for manifesting as guarded respect for the chief magistrate of the Union as is compatible with its official duties." But, declared Marshall, "to go beyond these ... would deserve some other appellation than the term respect."

If the prosecution should end, "as is expected" by the Government, those who withheld from Burr any paper necessary to his defense would, of course, bitterly regret their conduct. "I will not say, that this circumstance would ... tarnish the reputation of the Government; but I will say, that it would justly tarnish the reputation of the court, which had given its sanction to its being withheld."

With all that impressiveness of voice and manner which, on occasion, so transformed Marshall, he exclaimed: "Might I be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him."

Let a subpœna duces tecum, therefore ruled the Chief Justice, be issued, directed to Thomas Jefferson, President of the United States.[1117]

Nothing that Marshall had before said or done so highly excited counsel for the prosecution as his assertion that they "expected" Burr's conviction. The auditors were almost as deeply stirred. Considering the peculiarly mild nature of the man and his habitual self-restraint, Marshall's language was a pointed rebuke, not only to the Government's attorneys, but to the Administration itself. Even Marshall's friends thought that he had gone too far.

Instantly MacRae was on his feet. He resented Marshall's phrase, and denied that the Government or its counsel "wished" the conviction of Burr—such a desire was "completely abhorrent to [their] feelings." MacRae hoped that Marshall did not express such an opinion deliberately, but that it had "accidentally fallen from the pen of [his] honor."

Marshall answered that he did not intend to charge the Administration or its attorneys with a desire to convict Burr "whether he was guilty or innocent"; but, he added dryly, "gentlemen had so often, and so uniformly asserted, that colonel Burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject."[1118]

Hay, in his report to Jefferson, gave more space to this incident than he did to all other features of the case. He told the President that Marshall had issued the dreaded process and then quoted the offensive sentence. "This expression," he relates, "produced a very strong & very general sensation. The friends of the Judge, both personal & political, Condemned it. Alex^ṛ M^cRae rose as soon as he had finished, and in terms mild yet determined, demanded an explanation of it. The Judge actually blushed." And, triumphantly continues the District Attorney, "he did attempt an explanation.... I observed, with an indifference which was not assumed, that I had endeavored to do my duty, according to my own judgment and feelings, that I regretted nothing that I had said or done, that I should pursue the same Course throughout, and that it was a truth, that I cared not what any man said or thought about it."

Marshall himself was perturbed. "About three hours afterwards," Hay tells Jefferson, "when the Crowd was thinned, the Judge acknowledged the impropriety of the expression objected to, & informed us from the Bench that he had erased it." The Chief Justice even apologized to the wrathful Hay: "After he had adjourned the Court, he descended from the Bench, and told me that he regretted the remark, and then by way of apology said, that he had been so pressed for time, that he had never read the opinion, after he had written it." Hay loftily adds: "An observation from me that I did not perceive any connection between my declarations & his remark, or how the former could regularly be the Cause of the latter, closed the Conversation."[1119]

Hay despondently goes on to say that "there never was such a trial from the beginning of the world to this day." And what should he do about Bollmann? That wretch "resolutely refuses his pardon & is determined not to utter a word, if he can avoid it. The pardon lies on the clerks table. The Court are to decide whether he is really pardoned or not. Martin says he is not pardoned. Such are the questions, with which we are worried. If the Judge says that he is not pardoned, I will take the pardon back. What shall I then do with him?"

The immediate effect of Marshall's ruling was the one Jefferson most dreaded. For the first time, most Republicans approved of the opinion of John Marshall. In the fanatical politics of the time there was enough of honest adherence to the American ideal, that all men are equal in the eyes of the law, to justify the calling of a President, even Thomas Jefferson, before a court of justice.

Such a militant Republican and devotee of Jefferson as Thomas Ritchie, editor of the Richmond Enquirer, the party organ in Virginia, did not criticize Marshall, nor did a single adverse comment on Marshall appear in that paper during the remainder of the trial. Not till the final verdict was rendered did Ritchie condemn him.[1120]

Before he learned of Marshall's ruling, Jefferson had once more written the District Attorney giving him well-stated arguments against the issuance of the dreaded subpœna.[1121] When he did receive the doleful tidings, Jefferson's anger blazed—but this time chiefly at Luther Martin, who was, he wrote, an "unprincipled & impudent federal bull-dog." But there was a way open to dispose of him: Martin had known all about Burr's criminal enterprise. Jefferson had received a letter from Baltimore stating that this had been believed generally in that city "for more than a twelve-month." Let Hay subpœna as a witness the writer of this letter—one Greybell.

Something must be done to "put down" the troublesome "bull-dog": "Shall L M be summoned as a witness against Burr?" Or "shall we move to commit L M as particeps criminis with Burr? Greybell will fix upon him misprision of treason at least ... and add another proof that the most clamorous defenders of Burr are all his accomplices."

As for Bollmann! "If [he] finally rejects his pardon, & the Judge decides it to have no effect ... move to commit him immediately for treason or misdemeanor."[1122] But Bollmann, in open court, had refused Jefferson's pardon six days before the President's vindictively emotional letter was written.

After Marshall delivered his opinion on the question of the subpœna to Jefferson, Burr insisted, in an argument as convincing as it was brief, that the Chief Justice should now deliver the supplementary charge to the grand jury as to what evidence it could legally consider. Marshall announced that he would do so on the following Monday.[1123]

Several witnesses for the Government were sworn, among them Commodore Thomas Truxtun, Commodore Stephen Decatur, and "General" William Eaton. When Dr. Erich Bollmann was called to the book, Hay stopped the administration of the oath. Bollmann had told the Government all about Burr's "plans, designs and views," said the District Attorney; "as these communications might criminate doctor Bollman before the grand jury, the president has communicated to me this pardon"—and Hay held out the shameful document. He had already offered it to Bollmann, he informed Marshall, but that incomprehensible person would neither accept nor reject it. His evidence was "extremely material"; the pardon would "completely exonerate him from all the penalties of the law." And so, exclaimed Hay, "in the presence of this court, I offer this pardon to him, and if he refuses, I shall deposit it with the clerk for his use." Then turning to Bollmann, Hay dramatically asked:

"Will you accept this pardon?"

"No, I will not, sir," firmly answered Bollmann.

Then, said Hay, the witness must be sent to the grand jury "with an intimation, that he has been pardoned."

"It has always been doctor Bollman's intention to refuse this pardon," broke in Luther Martin. He had not done so before only "because he wished to have this opportunity of publicly rejecting it."

Witness after witness was sworn and sent to the grand jury, Hay and Martin quarreling over the effect of Jefferson's pardon of Bollmann. Marshall said that it would be better "to settle ... the validity of the pardon before he was sent to the grand jury." Again Hay offered Bollmann the offensive guarantee of immunity; again it was refused; again Martin protested.

"Are you then willing to hear doctor Bollman indicted?" asked Hay, white with anger. "Take care," he theatrically cried to Martin, "in what an awful condition you are placing this gentleman."

Bollmann could not be frightened, retorted Martin: "He is a man of too much honour to trust his reputation to the course which you prescribe for him."

Marshall "would perceive," volunteered the nonplussed and exasperated Hay, "that doctor Bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason."

The Chief Justice announced that he could not, "at present, declare, whether he be really pardoned or not." He must, he said, "take time to deliberate."

Hay persisted: "Categorically then I ask you, Mr. Bollman, do you accept your pardon?"

"I have already answered that question several times. I say no," responded Bollmann. "I repeat, that I would have refused it before, but that I wished this opportunity of publicly declaring it."[1124]

Bollmann was represented by an attorney of his own, a Mr. Williams, who now cited an immense array of authorities on the various questions involved. Counsel on both sides entered into the discussion. One "reason why doctor Bollman has refused this pardon" was, said Martin, "that it would be considered as an admission of guilt." But "doctor Bollman does not admit that he has been guilty. He does not consider a pardon as necessary for an innocent man. Doctor Bollman, sir, knows what he has to fear from the persecution of an angry government; but he will brave it all."

Yes! cried Martin, with immense effect on the excited spectators, "the man, who did so much to rescue the marquis la Fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout Europe, that he was compelled to abandon his honour through a fear of unjust persecution." Finally the true-hearted and defiant Bollmann was sent to the grand jury without having accepted the pardon, and without the legal effect of its offer having been decided.[1125]

When the Richmond Enquirer, containing Marshall's opinion on the issuance of the subpœna duces tecum, reached Washington, the President wrote to Hay an answer of great ability, in which Jefferson the lawyer shines brilliantly forth: "As is usual where an opinion is to be supported, right or wrong, he [Marshall] dwells much on smaller objections, and passes over those which are solid.... He admits no exception" to the rule "that all persons owe obedience to subpœnas ... unless it can be produced in his law books."

"But," argues Jefferson, "if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Constitution enjoins his [the President's] constant agency in the concerns of 6. millions of people. Is the law paramount to this, which calls on him on behalf of a single one?"

Let Marshall smoke his own tobacco: suppose the Sheriff of Henrico County should summon the Chief Justice to help "quell a riot"? Under the "general law" he is "a part of the posse of the State sheriff"; yet, "would the Judge abandon major duties to perform lesser ones?" Or, imagine that a court in the most distant territory of the United States "commands, by subpœnas, the attendance of all the judges of the Supreme Court. Would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual?"

The Judiciary was incessantly proclaiming its "independence," and asserting that "the leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other." But where would be such independence, if the President "were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?"

Jefferson vigorously resented Marshall's personal reference to him. "If he alludes to our annual retirement from the seat of government, during the sickly season," Hay ought to tell Marshall that Jefferson carried on his Executive duties at Monticello.[1126]

Crowded with sensations as the proceedings had been from the first, they now reached a stage of thrilling movement and high color. The long-awaited and much-discussed Wilkinson had at last arrived "with ten witnesses, eight of them Burr's select men," as Hay gleefully reported to Jefferson.[1127] Fully attired in the showy uniform of the period, to the last item of martial decoration, the fat, pompous Commanding General of the American armies strode through the crowded streets of Richmond and made his way among the awed and gaping throng to his seat by the side of the Government's attorneys.

Washington Irving reports that "Wilkinson strutted into the Court, and ... stood for a moment swelling like a turkey cock." Burr ignored him until Marshall "directed the clerk to swear General Wilkinson; at the mention of the name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly ... went on conversing with his counsel as tranquilly as ever."[1128]

Wilkinson delighted Jefferson with a different description: "I saluted the Bench & in spite of myself my Eyes darted a flash of indignation at the little Traitor, on whom they continued fixed until I was called to the Book—here Sir I found my expectations verified—This Lyon hearted Eagle Eyed Hero, sinking under the weight of conscious guilt, with haggard Eye, made an Effort to meet the indignant salutation of outraged Honor, but it was in vain, his audacity failed Him, He averted his face, grew pale & affected passion to conceal his perturbation."[1129]

But the countenance of a thin, long-faced, roughly garbed man sitting among the waiting witnesses was not composed when Wilkinson appeared. For three weeks Andrew Jackson to all whom he met had been expressing his opinion of Wilkinson in the unrestrained language of the fighting frontiersman;[1130] and he now fiercely gazed upon the creature whom he regarded as a triple traitor, his own face furious with scorn and loathing.

Within the bar also sat that brave and noble man whose career of unbroken victories had made the most brilliant and honorable page thus far in the record of the American Navy—Commodore Thomas Truxtun. He was dressed in civilian attire.[1131] By his side, clad as a man of business, sat a brother naval hero of the old days, Commodore Stephen Decatur.[1132] A third of the group was Benjamin Stoddert, the Secretary of the Navy under President Adams.[1133]

In striking contrast with the dignified appearance and modest deportment of these gray-haired friends was the gaudily appareled, aggressive mannered Eaton, his restlessness and his complexion advertising those excesses which were already disgusting even the hard-drinking men then gathered in Richmond. Dozens of inconspicuous witnesses found humbler places in the audience, among them Sergeant Jacob Dunbaugh, bearing himself with mingled bravado, insolence, and humility, the stripes on the sleeve of his uniform designating the position to which Wilkinson had restored him.

Dunbaugh had gone before the grand jury on Saturday, as had Bollmann; and now, one by one, Truxtun, Decatur, Eaton, and others were sent to testify before that body.

Eaton told the grand jury the same tale related in his now famous affidavit.[1134]

Commodore Truxtun testified to facts as different from the statements made by "the hero of Derne"[1135] as though Burr had been two utterly contrasted persons. During the same period that Burr had seen Eaton, he had also conversed with him, said Truxtun. Burr mentioned a great Western land speculation, the digging of a canal, and the building of a bridge. Later on Burr had told him that "in the event of a war with Spain, which he thought inevitable, ... he contemplated an expedition to Mexico," and had asked Truxtun "if the Havanna could be easily taken ... and what would be the best mode of attacking Carthagena and La Vera Cruz by land and sea." The Commodore had given Burr his opinion "very freely," part of it being that "it would require a naval force." Burr had answered that "that might be obtained," and had frankly asked Truxtun if he "would take the command of a naval expedition."

"I asked him," testified Truxtun, "if the executive of the United States were privy to, or concerned in the project? He answered emphatically that he was not: ... I told Mr. Burr that I would have nothing to do with it.... He observed to me, that in the event of a war [with Spain], he intended to establish an independent government in Mexico; that Wilkinson, the army, and many officers of the navy would join.... Wilkinson had projected the expedition, and he had matured it; that many greater men than Wilkinson would join, and that thousands to the westward would join."

In some of the conversations "Burr mentioned to me that the government was weak," testified Truxtun, "and he wished me to get the navy of the United States out of my head;[1136] ... and not to think more of those men at Washington; that he wished to see or make me, (I do not recollect which of those two terms he used) an Admiral."

Burr wished Truxtun to write to Wilkinson, to whom he was about to dispatch couriers, but Truxtun declined, as he "had no subject to write about." Again Burr urged Truxtun to join the enterprise—"several officers would be pleased at being put under my command.... The expedition could not fail—the Mexicans were ripe for revolt." Burr "was sanguine there would be war," but "if he was disappointed as to the event of war, he was about to complete a contract for a large quantity of land on the Washita; that he intended to invite his friends to settle it; that in one year he would have a thousand families of respectable and fashionable people, and some of them of considerable property; that it was a fine country, and that they would have a charming society, and in two years he would have doubled the number of settlers; and being on the frontier, he would be ready to move whenever a war took place....

"All his conversations respecting military and naval subjects, and the Mexican expedition, were in the event of a war with Spain." Truxtun testified that he and Burr were "very intimate"; that Burr talked to him with "no reserve"; and that he "never heard [Burr] speak of a division of the union."

Burr had shown Truxtun the plan of a "kind of boat that plies between Paulus-Hook and New-York," and had asked whether such craft would do for the Mississippi River and its tributaries, especially on voyages upstream. Truxtun had said they would. Burr had asked him to give the plans to "a naval constructor to make several copies," and Truxtun had done so. Burr explained that "he intended those boats for the conveyance of agricultural products to market at New-Orleans, and in the event of war [with Spain], for transports."

The Commodore testified that Burr made no proposition to invade Mexico "whether there was war [with Spain] or not." He was so sure that Burr meant to settle the Washita lands that he was "astonished" at the newspaper accounts of Burr's treasonable designs after he had gone to the Western country for the second time.

Truxtun had freely complained of what amounted to his discharge from the Navy, being "pretty full" himself of "resentment against the Government," and Burr "joined [him] in opinion" on the Administration.[1137]

Jacob Dunbaugh told a weird tale. At Fort Massac he had been under Captain Bissel and in touch with Burr. His superior officer had granted him a furlough to accompany Burr for twenty days. Before leaving, Captain Bissel had "sent for [Dunbaugh] to his quarters," told him to keep "any secrets" Burr had confided to him, and "advised" him "never to forsake Col. Burr"; and "at the same time he made [Dunbaugh] a present of a silver breast plate."

After Dunbaugh had joined the expedition, Burr had tried to persuade him to get "ten or twelve of the best men" among his nineteen fellow soldiers then at Chickasaw Bluffs to desert and join the expedition; but the virtuous sergeant had refused. Then Burr had asked him to "steal from the garrison arms such as muskets, fusees and rifles," but Dunbaugh had also declined this reasonable request. As soon as Burr learned of Wilkinson's action, he told Dunbaugh to come ashore with him armed "with a rifle," and to "conceal a bayonet under [his] clothes.... He told me he was going to tell me something I must never relate again, ... that General Wilkinson had betrayed him ... that he had played the devil with him, and had proved the greatest traitor on the earth."

Just before the militia broke up the expedition, Burr and Wylie, his secretary, got "an axe, auger and saw," and "went into Colonel Burr's private room and began to chop," Burr first having "ordered no person to go out." Dunbaugh did go out, however, and "got on the top of the boat." When the chopping ceased, he saw that "a Mr. Pryor and a Mr. Tooly got out of the window," and "saw two bundles of arms tied up with cords, and sunk by cords going through the holes at the gunwales of Colonel Burr's boat." The vigilant Dunbaugh also saw "about forty or forty-three stands [of arms], besides pistols, swords, blunderbusses, fusees, and tomahawks"; and there were bayonets too.[1138]

Next Wilkinson detailed to the grand jury the revelations he had made to Jefferson. He produced Burr's cipher letter to him, and was forced to admit that he had left out the opening sentence of it—"Yours, postmarked 13th of May, is received"—and that he had erased some words of it and substituted others. He recounted the alarming disclosures he had so cunningly extracted from Burr's messenger, and enlarged upon the heroic measures he had taken to crush treason and capture traitors. For four days[1139] Wilkinson held forth, and himself escaped indictment by the narrow margin of 7 to 9 of the sixteen grand jurymen. All the jurymen, however, appear to have believed him to be a scoundrel.[1140]

"The mammoth of iniquity escaped," wrote John Randolph in acrid disgust, "not that any man pretended to think him innocent, but upon certain wire-drawn distinctions that I will not pester you with. Wilkinson is the only man I ever saw who was from the bark to the very core a villain.... Perhaps you never saw human nature in so degraded a situation as in the person of Wilkinson before the grand jury, and yet this man stands on the very summit and pinnacle of executive favor."[1141]

Samuel Swartwout, the courier who had delivered Burr's ill-fated letter, "most positively denied" that he had made the revelations which Wilkinson claimed to have drawn from him.[1142] The youthful Swartwout as deeply impressed the grand jury with his honesty and truthfulness as Wilkinson impressed that body with his untrustworthiness and duplicity.[1143]

Peter Taylor and Jacob Allbright then recounted their experiences.[1144] And the Morgans told of Burr's visit and of their inferences from his mysterious tones of voice, glances of eye, and cryptic expressions. So it was, that in spite of overwhelming testimony of other witnesses,[1145] who swore that Burr's purposes were to settle the Washita lands and in the event of war with Spain, and only in that event, to invade Mexico, with never an intimation of any project hostile to the United States—so it was that bills of indictment for treason and for misdemeanor were, on June 24, found against Aaron Burr of New York and Harman Blennerhassett of Virginia. The indictment for treason charged that on December 13, 1806, at Blennerhassett's island in Virginia, they had levied war on the United States; and the one for misdemeanor alleged that, at the same time and place, they had set on foot an armed expedition against territory belonging to His Catholic Majesty, Charles IV of Spain.[1146]

This result of the grand jury's investigations was reached because of that body's misunderstanding of Marshall's charge and of his opinion in the Bollmann and Swartwout case.[1147]

John Randolph, as foreman of the grand jury, his nose close to the ground on the scent of the principal culprit, came into court the day after the indictment of Burr and Blennerhassett and asked for the letter from Wilkinson to Burr, referred to in Burr's cipher dispatch to Wilkinson, and now in the possession of the accused. Randolph said that, of course, the grand jury could not ask Burr to appear before them as a witness, but that they did want the letter.

Marshall declared "that the grand jury were perfectly right in the opinion." Burr said that he could not reveal a confidential communication, unless "the extremity of circumstances might impel him to such a conduct." He could not, for the moment, decide; but that "unless it were extorted from him by law" he could not even "deliberate on the proposition to deliver up any thing which had been confided to his honour."

Marshall announced that there was no "objection to the grand jury calling before them and examining any man ... who laid under an indictment." Martin agreed "there could be no objection."

The grand jury did not want Burr as a witness, said John Randolph. They asked only for the letter. If they should wish Burr's presence at all, it would be only for the purpose of identifying it. So the grand jury withdrew.[1148]

Hay was swift to tell his superior all about it, although he trembled between gratification and alarm. "If every trial were to be like that, I am doubtful whether my patience will sustain me while I am wading thro' this abyss of human depravity."

Dutifully he informed the President that he feared that "the Gr: Jury had not dismissed all their suspicions of Wilkinson," for John Randolph had asked for his cipher letter to Burr. Then he described to Jefferson the intolerable prisoner's conduct: "Burr rose immediately, & declared that no consideration, no calamity, no desperation, should induce him to betray a letter confidentially written. He could not even allow himself to deliberate on a point, where his conduct was prescribed by the clearest principles of honor &c. &c. &c."

Hay then related what Marshall and John Randolph had said, underscoring the statement that "the Gr: Jury did not want A. B. as a witness." Hay did full credit, however, to Burr's appearance of candor: "The attitude & tone assumed by Burr struck everybody. There was an appearance of honor and magnanimity which brightened the countenances of the phalanx who daily attend, for his encouragement & support."[1149]

Day after day was consumed in argument on points of evidence, while the grand jury were examining witnesses. Marshall delivered a long written opinion upon the question as to whether a witness could be forced to give testimony which he believed might criminate himself. The District Attorney read Jefferson's two letters upon the subject of the subpœna duces tecum. No pretext was too fragile to be seized by one side or the other, as the occasion for argument upon it demanded—for instance, whether or not the District Attorney might send interrogatories to the grand jury. Always the lawyers spoke to the crowd as well as to the court, and their passages at arms became ever sharper.[1150]

Wilkinson is "an honest man and a patriot"—no! he is a liar and a thief; Louisiana is a "poor, unfortunate, enslaved country"; letters had been seized by "foulness and violence"; the arguments of Burr's attorneys are "mere declamations"; the Government's agents are striving to prevent Burr from having "a fair trial ... the newspapers and party writers are employed to cry and write him down; his counsel are denounced for daring to defend him; the passions of the grand jury are endeavored to be excited against him, at all events";[1151] Hay's mind is "harder than Ajax's seven fold shield of bull's hide"; Edmund Randolph came into court "with mysterious looks of awe and terror ... as if he had something to communicate which was too horrible to be told"; Hay is always "on his heroics"; he "hopped up like a parched pea"; the object of Burr's counsel is "to prejudice the surrounding multitude against General Wilkinson"; one newspaper tale is "as impudent a falsehood as ever malignity had uttered"—such was the language with which the arguments were adorned. They were, however, well sprinkled with citations of authority.[1152]