FOOTNOTES:
[1017] See vol. i, 201, of this work.
[1018] Tobacco chewing and smoking in court-rooms continued in most American communities in the South and West down to a very recent period.
[1019] Address of John Tyler on "Richmond and its Memories," Tyler, i, 219.
[1020] Irving was twenty-four years old when he reported the Burr trial.
[1021] Blennerhassett Papers: Safford, 465. Marshall made this avowal to Luther Martin, who personally told Blennerhassett of it.
[1022] Judge Francis M. Finch, in Dillon, i, 402.
"The men who framed that instrument [Constitution] remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." (Adams: U.S. iii, 468.)
[1023] A favorite order from the bench for the execution of the condemned was that the culprit should be drawn prostrate at the tails of horses through the jagged and filthy streets from the court-room to the place of execution; the legs, arms, nose, and ears there cut off; the intestines ripped out and burned "before the eyes" of the victim; and finally the head cut off. Details still more shocking were frequently added. See sentences upon William, Lord Russell, July 14, 1683 (State Trials Richard II to George I, vol. 3, 660); upon Algernon Sidney, November 26, 1683 (ib. 738); upon William, Viscount Stafford, December 7, 1680 (ib. 214); upon William Stayley, November 21, 1678 (ib. vol. 2, 656); and upon other men condemned for treason.
[1024] Even in Philadelphia, after the British evacuation of that place during the Revolution, hundreds were tried for treason. Lewis alone, although then a very young lawyer, defended one hundred and fifty-two persons. (See Chase Trial, 21.)
[1025] "In the English law ... the rule ... had been that enough heads must be cut off to glut the vengeance of the Crown." (Isaac N. Phillips, in Dillon, ii, 394.)
[1026] Iredell's charge to the Georgia Grand Jury, April 26, 1792, Iredell: McRee, ii, 349; and see Iredell's charge to the Massachusetts Grand Jury, Oct. 12, 1792, ib. 365.
[1027] See his concurrence with Judge Peters's charge in the Fries case, Wharton: State Trials, 587-91; and Peters's opinion, ib. 586; also see Chase's charge at the second trial of Fries, ib. 636.
[1028] "The President's popularity is unbounded, and his will is that of the nation.... Such is our present infatuation." (Nicholson to Randolph, April 12, 1807, Adams: Randolph, 216-17.)
[1029] Hildreth, iv, 692.
[1030] Parton: Burr, 458.
[1031] Parton: Jackson, i, 333.
[1032] Jackson to Anderson, June 16, 1807, ib. 334.
[1033] Ib. 335.
[1034] Ib. 334-36.
[1035] Parton: Burr, 606-08; see also Parton: Jackson, ii, 258-59, 351-54; and Davis, ii, 433-36.
[1036] Address of John Tyler, "Richmond and its Memories," Tyler, i, 219.
[1037] Parton: Burr, 459.
[1038] Memoirs of Lieut.-General Scott, i, 13.
[1039] Memoirs of Lieut.-General Scott, i, 13, 16.
[1040] See Great American Lawyers: Lewis, ii, 268-75.
Kennedy says that the stories of Wirt's habits of intoxication were often exaggerated (Kennedy, i, 68); but see his description of the bar of that period and his apologetic reference to Wirt's conviviality (ib. 66-67).
[1041] Blennerhassett Papers: Safford, 426.
[1042] Parton: Burr, 461.
[1043] Burr Trials, i, 31-32.
[1044] Ib. 37.
[1045] Ib. 38.
[1046] Meaning the partiality of the persons challenged, such as animosity toward the accused, conduct showing bias against him, and the like. See Bouvier's Law Dictionary: Rawle, 3d revision, ii, 1191.
[1047] Burr Trials, i, 38-39.
[1048] Ib. 41-42.
[1049] Burr Trials, i, 41-42.
[1050] Jefferson to Nicholas, Feb. 28, 1807, Works: Ford, x, 370-71.
[1051] Burr Trials, i, 43.
[1052] Ib. 44.
[1053] In view of the hatred which Marshall knew Randolph felt toward Jefferson, it is hard to reconcile his appointment with the fairness which Marshall tried so hard to display throughout the trial. However, several of Jefferson's most earnest personal friends were on the grand jury, and some of them were very powerful men. Also fourteen of the grand jury were Republicans and only two were Federalists.
[1054] Burr Trials, i, 45-46. This grand jury included some of the foremost citizens of Virginia. The sixteen men who composed this body were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly, John Ambler, Thomas Harrison, Alexander Shephard, and James Barbour.
[1055] Marshall's error in this opinion, or perhaps the misunderstanding of a certain passage of it (see supra, 350), caused him infinite perplexity during the trial; and he was put to his utmost ingenuity to extricate himself. The misconstruction by the grand jury of the true meaning of Marshall's charge was one determining cause of the grand jury's decision to indict Burr. (See infra, 466.)
[1056] Burr Trials, i, 47-48.
[1057] Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.
[1058] Burr Trials, i, 48-51.
[1059] Burr Trials, i, 53-54.
[1060] Irving to Paulding, June 22, 1807, Life and Letters of Washington Irving: Irving, i, 145.
[1061] Burr Trials, i, 57-58.
[1062] Burr Trials, i, 58-76.
[1063] "I ... contented myself ... with ... declaring to the Audience (for two thirds of our speeches have been addressed to the people) that I was prepared to give the most direct contradiction to the injurious Statements." (Hay to Jefferson, June 14, 1807, giving the President an account of the trial, Jefferson MSS. Lib. Cong.)
[1064] He was hanged in effigy soon after the trial. (See infra, 539.)
[1065] It must be remembered that Marshall himself declared, in the very midst of the contest, that it would be dangerous for a jury to acquit Burr. (See supra, 401.)
[1066] He had narrowly escaped impeachment (see supra, chap. iv), and during the trial he was openly threatened with that ordeal (see infra, 500).
[1067] Burr Trials, i, 79-81.
[1068] See supra, 390-91.
[1069] Jefferson to Hay, May 26, 1807, Works: Ford, x, footnote to 394-95.
[1070] Burr Trials, i, 81-82.
[1071] Ib. 82.
[1072] Ib. 84-85.
[1073] Burr Trials, i, 91.
[1074] Ib. 94.
[1075] Ib. 95-96.
[1076] Burr Trials, i, 492-97.
[1077] Burr Trials, i, 509-14.
[1078] Burr Trials, i, 97-101.
[1079] Ib. 97.
[1080] Md. Hist. Soc. Fund-Pub. No. 24, 22.
[1081] Blennerhassett Papers: Safford, 468-69.
[1082] Burr Trials, i, 101-04.
[1083] Burr Trials, i, 105.
[1084] The men who went on this second bail bond for Burr were: William Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. (Ib. 106.)
[1085] Blennerhassett Papers: Safford, 315-16.
[1086] Eaton: Prentiss, 396-403; 4 Cranch, 463-66.
[1087] Blennerhassett Papers: Safford, 425.
[1088] Jefferson to Hay, May 28, 1807, Works: Ford, x, 395-96.
[1089] Jefferson to Eppes, May 28, 1807, Works: Ford, x, 412-13.
[1090] Hay to Jefferson, May 31, 1807, Jefferson MSS. Lib. Cong.
[1091] Jefferson to Hay, June 2, 1807, Works: Ford, x, 396-97.
[1092] Same to same, June 5, 1807, ib. 397-98; Hay to Jefferson, same date, Jefferson MSS. Lib. Cong.; and others cited, infra.
[1093] Jefferson to Dayton, Aug. 17, 1807, Works: Ford, x, 478.
[1094] Irving to Mrs. Hoffman, June 4, 1807, Irving, i, 142.
[1095] Ib.
[1096] Burr had seen the order in the Natchez Gazette. It was widely published.
[1097] Burr Trials, i, 113-14.
[1098] Burr Trials, i, 115-18.
[1099] Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong.
[1100] Jefferson to Hay, June 12, 1807, Works: Ford, x, 398-99.
[1101] Burr Trials, i, 124-25.
[1102] Irving to Mrs. Hoffman, June 4, 1807, Irving, i, 143.
[1103] Martin here refers to what he branded as "the farcical trials of Ogden and Smith." In June and July, 1806, William S. Smith and Samuel G. Ogden of New York were tried in the United States Court for that district upon indictments charging them with having aided Miranda in his attack on Caracas, Venezuela. They made affidavit that the testimony of James Madison, Secretary of State, Henry Dearborn, Secretary of War, Robert Smith, Secretary of the Navy, and three clerks of the State Department, was necessary to their defense. Accordingly these officials were summoned to appear in court. They refused, but on July 8, 1806, wrote to the Judges—William Paterson of the Supreme Court and Matthias B. Talmadge, District Judge—that the President "has specially signified to us that our official duties cannot ... be at this juncture dispensed with." (Trials of Smith and Ogden: Lloyd, stenographer, 6-7.)
The motion for an attachment to bring the secretaries and their clerks into court was argued for three days. The court disagreed, and no action therefore was taken. (Ib. 7-90.) One judge (undoubtedly Paterson) was "of opinion, that the absent witnesses should be laid under a rule to show cause, why an attachment should not be issued against them"; the other (Talmadge) held "that neither an attachment in the first instance, nor a rule to show cause ought to be granted." (Ib. 89.)
Talmadge was a Republican, appointed by Jefferson, and charged heavily against the defendants (ib. 236-42, 287); but they were acquitted.
The case was regarded as a political prosecution, and the refusal of Cabinet officers and department clerks to obey the summons of the court, together with Judge Talmadge's disagreement with Justice Paterson—who in disgust immediately left the bench under plea of ill-health (ib. 90)—and the subsequent conduct of the trial judge, were commented upon unfavorably. These facts led to Martin's reference during the Burr trial.
[1104] Burr Trials, i, 127-28.
[1105] Burr Trials, i, 130-33.
[1106] Ib. 134-35.
[1107] Burr Trials, i, 137-45.
[1108] Burr Trials, i, 147-48.
[1109] Ib. 148-52.
[1110] Burr Trials, i, 153-64.
[1111] Burr Trials, i, 164-67.
[1112] Ib. 173-76.
[1113] Burr Trials, i, 177.
[1114] See infra, 455-56.
[1115] Burr Trials, i, 181-83.
[1116] United States vs. Smith and Ogden. (See supra, 436, foot-note.)
[1117] Burr Trials, i, 187-88.
[1118] Burr Trials, i, 189.
[1119] Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.
[1120] Ambler: Thomas Ritchie—A Study in Virginia Politics, 40-41.
[1121] Jefferson to Hay, June 17, 1807, Works: Ford, x, 400-01.
[1122] Jefferson to Hay, June 19, 1807, Works: Ford, x, 402-03.
[1123] Burr Trials, i, 190.
[1124] Burr Trials, i, 191-93.
[1125] Burr Trials, i, 193-96.
[1126] Jefferson to Hay, June 20, 1807, Works: Ford, x, 403-05.
[1127] Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This letter announced Wilkinson's landing at Hampton Roads.
Wilkinson reached Richmond by stage on Saturday, June 13. He was accompanied by John Graham and Captain Gaines, the ordinary witnesses having been sent ahead on a pilot boat. (Graham to Madison, May 11, 1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated his letter May 11 instead of June 11. He had left New Orleans in May, and in the excitement of landing had evidently forgotten that a new month had come.
Wilkinson was "too much fatigued" to come into court. (Burr Trials, i, 196.) By Monday, however, he was sufficiently restored to present himself before Marshall.
[1128] Irving to Paulding, June 22, 1807, Irving, i, 145.
[1129] Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," MSS. Lib. Cong.
The court reporter impartially states that Wilkinson was "calm, dignified, and commanding," and that Burr glanced at him with "haughty contempt." (Burr Trials, i, footnote to 197.)
[1130] "Gen: Jackson of Tennessee has been here ever since the 22ḍ [of May] denouncing Wilkinson in the coarsest terms in every company." (Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)
Hay had not the courage to tell the President that Jackson had been as savagely unsparing in his attacks on Jefferson as in his thoroughly justified condemnation of Wilkinson.
[1131] Truxtun left the Navy in 1802, and, at the time of the Burr trial, was living on a farm in New Jersey. No officer in any navy ever made a better record for gallantry, seamanship, and whole-hearted devotion to his country. The list of his successful engagements is amazing. He was as high-spirited as he was fearless and honorable.
In 1802, when in command of the squadron that was being equipped for our war with Tripoli, Truxtun most properly asked that a captain be appointed to command the flagship. The Navy was in great disfavor with Jefferson and the whole Republican Party, and naval affairs were sadly mismanaged or neglected. Truxtun's reasonable request was refused by the Administration, and he wrote a letter of indignant protest to the Secretary of the Navy. To the surprise and dismay of the experienced and competent officer, Jefferson and his Cabinet construed his spirited letter as a resignation from the service, and, against Truxtun's wishes, accepted it as such. Thus the American Navy lost one of its ablest officers at the very height of his powers. Truxtun at the time was fifty-two years old. No single act of Jefferson's Administration is more discreditable than this untimely ending of a great career.
[1132] This man was the elder Decatur, father of the more famous officer of the same name. He had had a career in the American Navy as honorable but not so distinguished as that of Truxtun; and his service had been ended by an unhappy circumstance, but one less humiliating than that which severed Truxtun's connection with the Navy.
The unworthiest act of the expiring Federalist Congress of 1801, and one which all Republicans eagerly supported, was that authorizing most of the ships of the Navy to be sold or laid up and most of the naval officers discharged. (Act of March 3, 1801, Annals, 6th Cong. 1st and 2d Sess. 1557-59.) Among the men whose life profession was thus cut off, and whose notable services to their country were thus rewarded, was Commodore Stephen Decatur, who thereafter engaged in business in Philadelphia.
[1133] It was under Stoddert's administration of the Navy Department that the American Navy was really created. Both Truxtun and Decatur won their greatest sea battles in our naval war with France, while Stoddert was Secretary. The three men were close friends and all of them warmly resented the demolition of the Navy and highly disapproved of Jefferson, both as an individual and as a statesman. They belonged to the old school of Federalists. Three more upright men did not live.
[1134] See supra, 304-05.
[1135] A popular designation of Eaton after his picturesque and heroic Moroccan exploit.
[1136] Truxtun at the time of his conversations with Burr was in the thick of that despair over his cruel and unjustifiable separation from the Navy, which clouded his whole after life. The longing to be once more on the quarter-deck of an American warship never left his heart.
[1137] Burr Trials, i, 486-91. This abstract is from the testimony given by Commodore Truxtun before the trial jury, which was substantially the same as that before the grand jury.
[1138] Annals, 10th Cong. 1st Sess. 452-63. See note 1, next page.
[1139] Wilkinson's testimony on the trial for misdemeanor (Annals, 10th Cong. 1st Sess, 520-22) was the same as before the grand jury.
"Wilkinson is now before the grand jury, and has such a mighty mass of words to deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (Irving to Paulding, June 22, 1807, Irving, i, 145.)
[1140] See McCaleb, 335. Politics alone saved Wilkinson. The trial was universally considered a party matter, Jefferson's prestige, especially, being at stake. Yet seven out of the sixteen members of the grand jury voted to indict Wilkinson. Fourteen of the jury were Republicans, and two were Federalists.
[1141] Randolph to Nicholson, June 25, 1807, Adams: Randolph, 221-22. Speaking of political conditions at that time, Randolph observed: "Politics have usurped the place of law, and the scenes of 1798 [referring to the Alien and Sedition laws] are again revived."
[1142] Testimony of Joseph C. Cabell, one of the grand jury. (Annals, 10th Cong. 1st Sess. 677.)
[1143] "Mr. Swartwout ... discovered the utmost frankness and candor in his evidence.... The very frank and candid manner in which he gave his testimony, I must confess, raised him very high in my estimation, and induced me to form a very different opinion of him from that which I had before entertained." (Testimony of Littleton W. Tazewell, one of the grand jury, Annals, 10th Cong. 1st Sess. 633.)
"The manner of Mr. Swartwout was certainly that of conscious innocence." (Testimony of Joseph C. Cabell, one of the grand jury, ib. 677.)
[1144] See supra, 426-27.
[1145] Forty-eight witnesses were examined by the grand jury. The names are given in Brady: Trial of Aaron Burr, 69-70.
[1146] Burr Trials, i, 305-06; also "Bills of Indictment," MSS. Archives of the United States Court, Richmond, Va.
The following day former Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and Davis Floyd of the Territory of Indiana, were presented for treason. How Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only less comprehensible than the presentment of Tyler, Floyd, and the two Smiths for treason.
[1147] Blennerhassett Papers: Safford, 314. "Two of the most respectable and influential of that body, since it has been discharged, have declared they mistook the meaning of Chief Justice Marshall's opinion as to what sort of acts amounted to treason in this country, in the case of Swartwout and Ogden [Bollmann]; that it was under the influence of this mistake they concurred in finding such a bill against A. Burr, which otherwise would have probably been ignored."
[1148] Burr Trials, i, 327-28.
[1149] Hay to Jefferson, June 25, 1807, Jefferson MSS. Lib. Cong.
[1150] Burr Trials, i, 197-357.
[1151] This was one of Luther Martin's characteristic outbursts. Every word of it, however, was true.
[1152] Burr Trials, i, 197-357.