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

by Albert J. Beveridge

WHAT IS TREASON?

No person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (Constitution, Article III, Section 3.)

Such are the jealous provisions of our laws in favor of the accused that I question if he can be convicted. (Jefferson.)

The scenes which have passed and those about to be transacted will hereafter be deemed fables, unless attested by very high authority. (Aaron Burr.)

That this court dares not usurp power is most true. That this court dares not shrink from its duty is no less true. (Marshall.)

While the grand jury had been examining witnesses, interesting things had taken place in Richmond. Burr's friends increased in number and devotion. Many of them accompanied him to and from court each day.[1153] Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.[1154] Fashionable Richmond was rapidly becoming Burr-partisan. In society, as at the bar, the Government had been maneuvered into defense. Throughout the country, indeed, Burr's numerous adherents had proved stanchly loyal to him.

"I believe," notes Senator Plumer in his diary, "even at this period, that no man in this country, has more personal friends or who are more firmly attached to his interests—or would make greater sacrifices to aid him than this man."[1155] But this availed Burr nothing as against the opinion of the multitude, which Jefferson manipulated as he chose. Indeed, save in Richmond, this very fidelity of Burr's friends served rather to increase the public animosity; for many of these friends were persons of standing, and this fact did not appeal favorably to the rank and file of the rampant democracy of the period.

In Richmond, however, Burr's presence and visible peril animated his followers to aggressive action. On the streets, in the taverns and drinking-places, his adherents grew bolder. Young Swartwout chanced to meet the bulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower[1156] shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On learning of the incident Jackson "was wild with delight."[1157] Burr's enemies were as furious with anger. To spirited Virginians, only treason itself was worse than the refusal of Wilkinson, thus insulted, to fight.

Swartwout, perhaps inspired by Jackson, later confirmed this public impression of Wilkinson's cowardice. He challenged the General to a duel; the hero refused—"he held no correspondence with traitors or conspirators," he loftily observed;[1158] whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the American armies as guilty of treachery, perjury, forgery, and cowardice.[1159] The highest officer in the American military establishment "posted for cowardice" by a mere stripling! More than ever was Swartwout endeared to Jackson.

Soon after his arrival at Richmond, and a week before Burr was indicted, Wilkinson perceived, to his dismay, the current of public favor that was beginning to run toward Burr; and he wrote to Jefferson in unctuous horror: "I had anticipated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour—... To my Astonishment I found the Traitor vindicated & myself condemned by a Mass of Wealth Character-influence & Talents—merciful God what a Spectacle did I behold—Integrity & Truth perverted & trampled under foot by turpitude & Guilt, Patriotism appaled & Usurpation triumphant."[1160]

Wilkinson was plainly weakening, and Jefferson hastened to comfort his chief witness: "No one is more sensible than myself of the injustice which has been aimed at you. Accept I pray, my salutations and assurances of respect and esteem."[1161]

Before the grand jury had indicted Burr and Blennerhassett, Wilkinson suffered another humiliation. On the very day that the General sent his wailing cry of outraged virtue to the President, Burr gave notice that he would move that an attachment should issue against Jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.[1162] The following day was consumed in argument upon the motion that did not rise far above bickering. Marshall ruled that witnesses should be heard in support of Burr's application, and that Wilkinson ought to be present.[1163] Accordingly, the General was ordered to come into court.

James Knox, one of the young men who had accompanied Burr on his disastrous expedition, had been brought from New Orleans as a witness for the Government. He told a straightforward story of brutality inflicted upon him because he could not readily answer the printed questions sent out by Jefferson's Attorney-General.[1164] By other witnesses it appeared that letters had been improperly taken from the post-office in New Orleans.[1165] An argument followed in which counsel on both sides distinguished themselves by the learning and eloquence they displayed.[1166]

It was while Botts was speaking on this motion to attach Wilkinson, that the grand jury returned the bills of indictment.[1167] So came the dramatic climax.

Instantly the argument over the attachment of Wilkinson was suspended. Burr said that he would "prove that the indictment against him had been obtained by perjury"; and that this was a reason for the court to exercise its discretion in his favor and to accept bail instead of imprisoning him.[1168] Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ... had been impeached for perjury," or new testimony had been presented to the court.[1169] For once in his life, Martin could not answer immediately and offhand. So that night Aaron Burr slept in the common jail at Richmond.

"The cup of bitterness has been administered to him with unsparing hand," wrote Washington Irving.[1170] But he did not quail. He was released next morning upon a writ of habeas corpus;[1171] the argument on the request for the attachment of Wilkinson was resumed, and for three days counsel attacked and counter-attacked.[1172] On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the house occupied by Luther Martin; and to be confined to the front room, with the window shutters secured by bars, the door by a padlock, and the building guarded by seven men. Burr pleaded not guilty to the indictments against him, and orders were given for summoning the jury to try him.[1173]

Finally, Marshall delivered his written opinion upon the motion to attach Wilkinson. It was unimportant, and held that Wilkinson had not been shown to have influenced the judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-eight men to appear on August 3 from Wood County, in which Blennerhassett's island was located, and where the indictment charged that the crime had been committed.[1174]

Five days before Marshall adjourned court in order that jurymen might be summoned and both prosecution and defense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how intent were the people on the prosecution of Burr, how unshakable the tenacity with which Jefferson pursued him.

On June 22, 1807, the British warship, the Leopard, halted the American frigate, the Chesapeake, as the latter was putting out to sea from Norfolk. The British officers demanded of Commodore James Barron to search the American ship for British deserters and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen wounded. The Chesapeake had not been fitted out, was unable to reply, and finally was forced to strike her colors. The British officers then came on board and seized the men they claimed as deserters, all but one of whom were American-born citizens.[1175]

The whole country, except New England, roared with anger when the news reached the widely separated sections of it; but the tempest soon spent its fury. Quickly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,[1176] committed by a foreign power in American waters, weaken for a moment the President's determination to punish the native disturber of our domestic felicity.

The news of the Chesapeake outrage arrived at Richmond on June 25, and John Randolph supposed that, of course, Jefferson would immediately call Congress in special session.[1177] The President did nothing of the kind. Wilkinson, as Commander of the Army, advised him against armed retaliation. The "late outrage by the British," wrote the General, "has produced ... a degree of Emotion bordering on rage—I revere the Honourable impulse but fear its Effects—... The present is no moment for precipitancy or a stretch of power—on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage—... The efforts made here [Richmond] by a band of depraved Citizens, in conjunction with an audacious phalanx of insolent exotics, to save Burr, will have an ultimate good Effect, for the national Character of the Ancient dominion is in display, and the honest impulses of true patriotism will soon silence the advocates of usurpation without & conspiracy within."

Wilkinson tells Jefferson that he is coming to Washington forthwith to pay his "respects," and concludes: "You are doubtless well advised of proceedings here in the case of Burr—to me they are incomprehensible as I am no Jurist—The Grand Jury actually made an attempt to present me for Misprision of Treason—... I feel myself between 'Scylla and Carybdis' the Jury would Dishonor me for failing of my Duty, and Burr & his Conspirators for performing it—"[1178]

Not until five weeks after the Chesapeake affair did the President call Congress to convene in special session on October 26—more than four months after the occurrence of the crisis it was summoned to consider.[1179] But in the meantime Jefferson had sent a messenger to advise the American Minister in London to tell the British Government what had happened, and to demand a disavowal and an apology.

Meanwhile, the Administration vigorously pushed the prosecution of the imprisoned "traitor" at Richmond.[1180] Hay was dissatisfied that Burr should remain in Martin's house, even under guard and with windows barred and door locked; and he obtained from the Executive Council of Virginia a tender to the court of "apartments on the third floor" of the State Penitentiary for the incarceration of the prisoner. Burr's counsel strenuously objected, but Marshall ordered that he be confined there until August 2, at which time he should be returned to the barred and padlocked room in Martin's house.[1181]

In the penitentiary, "situated in a solitary place among the hills" a mile and a half from Richmond,[1182] Burr remained for five weeks. Three large rooms were given him in the third story; the jailer was considerate and kind; his friends called on him every day;[1183] and servants constantly "arrived with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice and some ordinary articles."[1184]

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

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

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

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

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

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

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

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

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

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

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

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

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

"Yet," complained Hay, "when the Gr: Jury brought in their bill the Chief Justice gazed at him, for a long time, without appearing conscious that he was doing so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit without palpable emotion. If Mr. Burr has any feeling left, yesterday must have been a day of agonizing humiliation," because the answers of the jurors had been uniformly against him; and Hay gleefully relates specimens of them.

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

Hay's opening statement to the jury was his best performance of the entire proceedings. He described Burr's purpose in almost the very words of Jefferson's Special Message. The gathering on Blennerhassett's island was, he said, the overt act; Burr, it was true, was not there at the time, but his presence was not necessary. Had not Marshall, in the Bollmann and Swartwout case, said that "if war be actually levied, ... all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors"?[1196]

The examination of the Government's witnesses began. Eaton took the stand; but Burr insisted that the overt act must be proved before collateral testimony could be admitted. So came the first crossing of swords over the point that was to save the life of Aaron Burr. The arguments of counsel were brilliant; but neither side forgot the public. They must thrill the audience as well as convince the court. "There had been a great deal of war in the newspapers," said Wickham, but everybody knew "that there had been no war in fact." Wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." Martin pointed out that Eaton's testimony did not "relate to any acts committed any where, but to mere declarations out of the district."[1197] Let the evidence be pertinent. The indictment charged a specific act, and it must be proved as charged. No man could be expected suddenly to answer for every act of his life. If Burr had planned to free Mexico and had succeeded, "he would have merited the applause of the friends of liberty and of posterity; ... but his friends may now pray that he may not meet the fate that Washington himself would have met, if the revolution had not been established."

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

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

The prosecution contended that the crime consisted of "the fact and the intention," and that the Government might first prove either of these; the defense insisted that the overt act must be shown before any testimony, explanatory or confirmatory of that fact, can be received. To prove first the fact charged was certainly "the most useful ... and ... natural order of testimony"; but no fixed rule of evidence required it, and no case had been cited in which any court had ever "forced" it on counsel for the prosecution.

The different impressions made upon the minds of the jury by the order of testimony was important, said Marshall: "Although human laws punish actions, the human mind spontaneously attaches guilt to intentions." When testimony had prepared the mind to look upon the prisoner's designs as criminal, a jury would consider a fact in a different light than if it had been proved before guilty intentions had been shown. However, since no rule prevented the prosecution from first proving either, "no alteration of that arrangement ... will now be directed."

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

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

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

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

Notwithstanding Marshall's intimation that Eaton must confine his testimony to Burr, "the hero of Derne" was not to be denied his self-vindication; not even the Chief Justice should check his recital of his patriotism, his glories, his wrongs. Burr had good reasons for supposing him "disaffected toward the Government"; he then related at length his services in Africa, the lack of appreciation of his ability and heroism, the preferment of unworthy men to the neglect of himself. Finally, Eaton, who "strutted more in buskin than usual," to the amusement of "the whole court,"[1200] delivered his testimony, and once more related what he had said in his deposition. Since Marshall had "decided it to be irrelevant," Eaton omitted the details about Burr's plans to murder Jefferson, turn Congress out of the Capitol, seize the Navy, and make himself ruler of America at one bold and bloody stroke.[1201]

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

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

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

The witness related his observation of the seizure at Marietta of Burr's few boats and provisions by the Ohio militia, and the sale of them by the Government; of the assemblage of the twenty or thirty men on Blennerhassett's island; of their quiet, orderly conduct; of Comfort Tyler's declaration "that he would not resist the constituted authorities, but that he would not be stopped by a mob"; of Mrs. Blennerhassett's taking part of her husband's library with her when she followed him, after the flight of the terrified little band from the island; and of the sale of the remainder of the cultivated visionary's books.[1205]

Simeon Poole, who had been sent by Governor Tiffin of Ohio to arrest Blennerhassett, said that he was not on the island, but from dusk until ten o'clock watched from a concealed place on the Ohio shore. He saw a few men walking about, who during the night kindled a fire, by the light of which it seemed to Poole that some of them were "armed." He could not be sure from where he watched, but they "looked like sentinels." However, Poole "could not say whether the persons ... were not merely loitering around the fire." There were some boats, he said, both big and little. Also, when anybody wanted to cross from the Ohio side, the acute Poole thought that "a watchword" was given. The night was cold, the rural sleuth admitted, and it was customary to build fires on the river-bank. He observed, however, another suspicious circumstance—"lanterns were passing ... between the house and boats.... Most of the people were without guns," he admitted; but, although he could not see clearly, he "apprehended that some of them had guns."[1206]

Morris P. Belknap, an Ohio business man, testified that he had hailed a boat and been taken to the island on the night when the gathering and flight took place.[1207] He saw perhaps twenty men in the house; "two or three ... near the door, had rifles, and appeared to be cleaning them. These were all the arms I saw." He also observed two or three boats.[1208]

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

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

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

The defense moved that, since no overt act was proved as charged, collateral testimony as to what had been said and done elsewhere should not be received. Wickham opened the argument in an address worthy of that historic occasion. For nearly two days this superb lawyer spoke. Burr's counsel would, he said, have preferred to go on, for they could "adduce ... conclusive testimony" as to Burr's innocence. But only seven witnesses out of "about one hundred and forty" summoned by the Government had been examined, and it was admitted that these seven had given all the testimony in existence to prove the overt act.

John Wickham

If that overt act had not been established and yet the more than one hundred and thirty remaining witnesses were to be examined, it was manifest that "weeks, perhaps months," would elapse before the Government completed its case. It was the unhealthy season, and it was most probable that one or more jurors would become ill. If so, said Wickham, "the cause must lie over and our client, innocent, may be subjected to a prolongation of that confinement which is in itself ... punishment." Yet, after all this suffering, expense, and delay, the result must be the same as if the evidence were arrested now, since there was no testimony to the overt act other than that already given.

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

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

It was only by the doctrine of constructive treason that Burr could be said to be at Blennerhassett's island at the time charged—the doctrine that "in treason all are principals," and that, by "construction of law," he was present, although in reality he was hundreds of miles away. But this was the very doctrine which the Constitution prohibited from ever being applied in America.

If Burr "conspired to levy war against the United States, and ... the war was carried on by others in his absence, his offense can only be punished by a special indictment charging the facts as they existed." The prosecution "should at once withdraw their indictment as it does not contain a specification that can be supported by the evidence."[1215]

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

When Randolph closed, on Friday, August 21, Hay asked Marshall to postpone further discussion until Monday, that counsel for the Government might prepare their arguments.[1217] Burr's attorneys stoutly objected, but Marshall wisely granted Hay's request.[1218] "Did you not do an unprecedented thing," a friend asked Marshall, "in suspending a criminal prosecution and granting two days, in the midst of the argument on a point then under discussion, for counsel to get ready to speak upon it?" "Yes," replied the Chief Justice, "I did and I knew it. But if I had not done so I should have been reproached with not being disposed to give the prosecutors an opportunity to answer."[1219]

Saturday and Sunday were more than time enough to light the fires of MacRae's Scotch wrath. His anger dominated him to such an extent that he became almost incoherent.[1220] Burr not a principal! "Let all who are in any manner concerned in treason be principals," and treason will be suppressed.[1221] MacRae, speaking the language of Jeffreys, had, in his rage, forgotten that he had immigrated to America.

On Tuesday, August 25, although the court opened at nine o'clock,[1222] the heat was so oppressive that nothing but the public interest—now reaching the point of hysteria—could have kept the densely packed audience in the stifling hall.[1223] But the spectators soon forgot their discomfort. The youthful, handsome William Wirt enraptured them with an eloquence which has lived for a century. It is impossible to give a faithful condensation of this charming and powerful address, the mingled courtesy and boldness of it, the apt phrase, the effective imagery, the firm logic, the wealth of learning. Only examples can be presented; and these do scant justice to the young lawyer's speech.

"When we speak of treason, we must call it treason.... Why then are gentlemen so sensitive ... as if instead of a hall of justice, we were in a drawing-room with colonel Burr, and were barbarously violating towards him every principle of decorum and humanity?[1224] This motion [to arrest the testimony] is a bold and original stroke in the noble science of defence," made to prevent the hearing of the evidence. But he knew that Marshall would not "sacrifice public justice, committed to [his] charge, by aiding this stratagem to elude the sentence of the law."[1225]

Why had Wickham said so little of American and so much of British precedents, vanishing "like a spirit from American ground and ... resurging by a kind of intellectual magic in the middle of the 16th century, complaining most dolefully of my lord Coke's bowels." It was to get as far as possible away from Marshall's decision in the case of Bollmann and Swartwout. If Marshall's opinion had been favorable, Wickham "would not have ... deserted a rock so broad and solid, to walk upon the waves of the Atlantic." Wirt made the most of Marshall's careless language.[1226]

The youthful advocate was impressing Marshall as well as jury and auditors. "Do you mean to say," asked the Chief Justice, "that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on Blennerhassett's island?" In reply Wirt condensed the theory of the prosecution: "I mean to say, that the count is general in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the constitutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances."[1227]

Burr's presence at the island necessary! If so, a man might devise and set in motion "the whole mechanism" of treason, "go a hundred miles" away, let it be operated by his agents, "and he is innocent, ... while those whom he has deluded are to suffer the death of traitors." How infamous! Burr only the accessory and Blennerhassett the principal! "Will any man believe that Burr who is a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plot into operation, should sink down into an accessory and Blennerhassett be elevated into a principal!"

Here Wirt delivered that passage which for nearly a hundred years was to be printed in American schoolbooks, declaimed by American youth, and to become second only to Jefferson's Proclamation, Messages, and letters, in fixing, perhaps irremovably, public opinion as to Aaron Burr and Harman Blennerhassett.[1228] But his speech was not all rhetoric. Indeed, no advocate on either side, except John Wickham and Luther Martin, approached him in analyses of authorities and closeness of reasoning.[1229]

"I cannot promise you, sir, a speech manufactured out of tropes and figures," remarked Botts in beginning his reply. No man better could have been found to break the force of the address of his young brother of the bar. Wirt had defaced his otherwise well-nigh perfect address by the occasional use of extravagant rhetoric, some of which, it appears, was not reported. Botts availed himself of one such display to make Wirt's argument seem absurd and trivial: "Instead of the introduction of a sleeping Venus with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the prosecution by leading our imaginations to the fascinating richness ... of heaving bosom and luscious waist, I am compelled to plod heavily and meekly through the dull doctrines of Hale and Foster." Botts continued, with daring but brilliant satire, to ridicule Wirt's unhappy rhetoric.[1230] Soon spectators, witnesses, jury, were in laughter. The older lawyers were vastly amused. Even Marshall openly enjoyed the humor.

His purpose thus accomplished, Botts now addressed himself to the evidence, to analyze which he had been assigned. And a perfect job he made of it. He spoke with impetuous rapidity.[1231] He reviewed the events at Blennerhassett's island: "There was war, when there was confessedly no war; and it happened although it was prevented!" As to arms: "No arms were necessary ... they might make war with their fingers." Yes, yes, "a most bloody war indeed—and ten or twelve boats." Referring to the flight from Blennerhassett's island, the sarcastic lawyer observed: "If I run away and hide to avoid a beating I am guilty and may be convicted of assault and battery!" What "simpletons" the people of Kentucky and Mississippi had been! "They hunted but could not find the war," although there it was, right among them![1232]

What was the moving force back of the prosecution? It was, charged Botts, the rescue of the prestige of Jefferson's Administration. "It has not only been said here but published in all the newspapers throughout the United States, that if Aaron Burr should be acquitted it will be the severest satire on the government; and that the people are called upon to support the government by the conviction of colonel Burr; ... even jurymen have been taught by the common example to insult him."

No lie was too contemptible to be published about him. For instance, "when the grand jury returned a true bill, he was firm, serene, unmoved, composed—no change of countenance.... Yet the next day they announced in the newspapers," declared Botts, "that he was in a state of indescribable consternation and dismay." Worse still, "every man who dares to look at the accused with a smile or present him the hand of friendship" is "denounced as a traitor."[1233]

Black but faithful was the picture the fearless lawyer drew of the Government's conduct.[1234] He dwelt on the devices resorted to for inflaming the people against Burr, and after they had been aroused, the demand that public sentiment be heeded and the accused convicted. Was that the method of justice! If so, where was the boasted beneficence of democracies? Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral Byng. "Jefferson was run down in 1780[1235] by the voice of the people." If the law of constructive treason were to be adopted in America and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn.[1236]

Hay, who had been ill for several days[1237] and was badly worn, spoke heavily for the greater part of two days.[1238] His address, though dull, was creditable; but he added nothing in thought or authorities to Wirt's great speech. His principal point, which he repeated interminably, was that the jury must decide both law and fact. In making this contention he declared that Marshall was now asked by Burr's counsel to do the very thing for which Chase had been impeached.[1239] Time and again the District Attorney insinuated that impeachment would be Marshall's fate if he did not permit the jury to hear all the testimony.[1240]

Charles Lee, Attorney-General under President Adams, and an intimate friend of Marshall,[1241] had joined Burr's legal forces some time before. In opening his otherwise dry argument, Lee called Marshall's attention to Hay's threat of impeachment. The exhausted District Attorney finally denied that he meant such a thing, and Marshall mildly observed: "I did not consider you as making any personal allusion, but as merely referring to the law."[1242] Thus, with his kindly tactfulness, Marshall put the incident aside.

On August 28, Luther Martin closed the debate. He had been drinking even more than usual throughout the proceedings;[1243] but never was he in more perfect command of all his wonderful powers. No outline of his address will be attempted; but a few quotations may be illustrative.

It was the admitted legal right and "indispensable duty" of Burr's counsel, began Martin, to make the motion to arrest the testimony; yet for doing so "we have been denounced throughout the United States as attempting to suppress the truth." Our act "has been held up to the public and to this jury as conclusive proof of our guilt." Such, declared the great lawyer, were the methods used to convict Burr.[1244] He had been in favor, he avowed, of waiving "obvious and undeniable rights," and of going on with the trial because he was convinced that all the evidence would not only clear "his friend," but remove the groundless prejudices which had so wickedly been excited against Burr. But he had yielded to the judgment of his associates that the plan adopted was more conformable to law.

"I shall ever feel the sincerest gratitude to heaven, that my life has been preserved to this time, and that I am enabled to appear ... in his defense." And if his fellow counsel and himself should be "successful in rescuing a gentleman, for whom I with pleasure avow my friendship and esteem, from the fangs of his persecutors ... what dear delight will my heart enjoy!"[1245] Martin thanked Heaven, too, for the boon of being permitted to oppose the "destructive" doctrine of treason advanced by the Government. For hours he analyzed the British decisions which he "thanked God ... are not binding authority in this country." He described the origin and growth of the doctrine of constructive treason and defined it with clearness and precision.[1246] It was admitted that Burr was not actually present at the time and place at which the indictment charged him with having committed the crime; but, according to the Government, he was "constructively" present.

With perfect fearlessness Martin attacked Marshall's objectionable language in the Bollmann and Swartwout opinion from the Supreme Bench: "As a binding judicial opinion," he accurately declared, "it ought to have no more weight than the ballad of Chevy Chase."[1247] Deftly he impressed upon Marshall, Hay's threat of impeachment if the Chief Justice should presume to decide in Burr's favor.[1248] Lamenting the popular hostility toward Burr, Martin defied it: "I have with pain heard it said[1249] that such are the public prejudice against colonel Burr, that a jury, even should they be satisfied of his innocence, must have considerable firmness of mind to pronounce him not guilty. I have not heard it without horror.

"God of Heaven! have we already under our form of government (which we have so often been told is best calculated of all governments to secure all our rights) arrived at a period when a trial in a court of justice, where life is at stake, shall be but ... a mere idle ... ceremony to transfer innocence from the gaol to the gibbet, to gratify popular indignation excited by bloodthirsty enemies!"

Martin closed by a personal appeal to Marshall: "But if it require in such a situation firmness in a jury, so does it equally require fortitude in judges to perform their duty.... If they do not and the prisoner fall a victim, they are guilty of murder in foro cœli whatever their guilt may be in foro legis.... May that God who now looks down upon us, and who has in his infinite wisdom called you into existence and placed you in that seat to dispense justice to your fellow citizens, to preserve and protect innocence against persecution—may that God so illuminate your understandings that you may know what is right; and may he nerve your souls with firmness and fortitude to act according to that knowledge."[1250]

The last word of this notable debate had been spoken.[1251] The fate of Aaron Burr and of American liberty, as affected by the law of treason, now rested in the hands of John Marshall.

On Monday morning, August 31, the Chief Justice read his opinion. All Richmond and the multitude of strangers within her gates knew that the proceedings, which for four months had enchained the attention of all America, had now reached their climax. Burr's friends were fearful, and hoped that the laudanum calumny[1252] would "strengthen" Marshall to do his duty.[1253] For the moment the passions of the throng were in abeyance while the breathless spectators listened to Marshall's calm voice as it pronounced the fateful words.

The opinion of the Chief Justice was one of the longest ever rendered by him, and the only one in which an extensive examination of authorities is made. Indeed, a greater number of decisions, treatises, and histories are referred to than in all the rest of Marshall's foremost Constitutional opinions. Like every one of these, the Burr opinion was a state paper of first importance and marked a critical phase in the development of the American Nation.

Marshall stated the points first to be decided: under the Constitution can a man be convicted of treason in levying war who was not present when the war was levied; and, if so, can testimony be received "to charge one man with the overt acts of others until those overt acts as laid in the indictment be proved to the satisfaction of the court"? He made clear the gravity of the Constitutional question: "In every point of view in which it can be contemplated, [it] is of infinite moment to the people of this country and their government."[1254]

What was the meaning of the words, "'levying war'?... Had their first application to treason been made by our constitution they would certainly have admitted of some latitude of construction." Even so it was obvious that the term "levying war" literally meant raising or creating and making war. "It would be affirming boldly to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war."

Suppose the case of "a commissary of purchases" for an army raised to make war, who supplied it with provisions; would he not "levy war" as much as any other officer, although he may never have seen the army? The same was true of "a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him."

But levying war was not for the first time designated as treason by the American Constitution. "It is a technical term," borrowed from an ancient English statute[1255] and used in the Constitution in the sense understood in that country and this at the time our fundamental law was framed.

Not only British decisions, but "those celebrated elementary writers" whose "books are in the hands of every student," and upon which "legal opinions are formed" that are "carried to the bar, the bench and the legislature"—all must be consulted in ascertaining the import of such terms.[1256]

Marshall reviewed Coke, Hale, Foster, and Blackstone, and found them vague upon the question "whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that legal rule [of constructive treason] which attaches the guilt of the principal to an accessory." Nor were the British decisions more satisfactory: "If in adjudged cases this question [has] been ... directly decided, the court has not seen those cases."[1257] To trace the origin of "the doctrine that in treason all are principals" was unimportant. However "spurious," it was the British principle settled for ages.

The American Constitution, however, "comprizes no question respecting principal and accessory"—the traitor must "truly and in fact levy war." He must "perform a part in the prosecution of the war."[1258]

Marshall then gingerly takes up the challenge of his opinion in the case of Bollmann and Swartwout. Since it had been upon the understanding by the grand jury of his language in that opinion that Burr had been indicted for treason, and because the Government relied on it for conviction so far as the prosecution depended on the law, the Chief Justice took pains to make clear the disputed passages.

"Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessories to treason.[1259] But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. To complete the definition both circumstances must occur. They must 'perform a part' which will furnish the overt act; and they must be 'leagued in the conspiracy.'"

Did the things proved to have happened on Blennerhassett's island amount to the overt act of levying war? He had heard, said Marshall, that his opinion in Bollmann and Swartwout was construed as meaning that "any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in a condition to use violence or not in that condition, is a levying of war." That view of his former opinion had not, indeed, "been expressly advanced at the bar"; but Marshall understood, he said, that "it was adopted elsewhere."[1260]

Relying exclusively on reason, all would agree, he continued, "that war could not be levied without the employment and exhibition of force.... Intention to go to war may be proved by words," but the actual going to war must "be proved by open deed."[1261]

This natural and reasonable understanding of the term was supported by the authorities. Marshall then made specific reference to the opinions of a large number of British writers and judges, and of all American judges who had passed upon the question. In none of these, he asserted, had "the words 'levying war' ... received a technical different from their natural meaning"[1262]—that is, "the employment and exhibition of force."

Had he overruled all these opinions in the Bollmann-Swartwout case? Had he, in addition, reversed the natural interpretation of the Constitution which reason dictated? Surely not! Yet this was what he was now charged with having done.

But, said Marshall, "an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms." A mere implication was not enough. Yet this was all there was to justify the erroneous construction of his opinion in the case of Bollmann and Swartwout—"the omission of the court to state that the assemblage which constitutes the fact of levying war ought to be in force."[1263]

Marshall then went into an extended and minute analysis of his misunderstood opinion, and painfully labored to show that he then intended to say, as he now did say: that the act of levying war required "an assemblage in force," and not merely "a secret furtive assemblage without the appearance of force." The gathering "must be such as to prove that [war] is its object." If it was not "a military assemblage in a condition to make war, it was not a levying of war."[1264]

The indictment charged Burr with having levied war at a specific place and stated the exact manner in which the act had been done; this was necessary; otherwise the accused could not make adequate defense. So the indictment "must be proved as laid"; otherwise "the charge of an overt act would be a mischief instead of an advantage to the accused," and would lead him from the true cause and nature of the accusation instead of informing him respecting it.[1265]

The Government insisted that, although Burr "had never been with the party ... on Blennerhassett's island, and was, at the time, at a great distance and in a different state,... he was yet legally present, and therefore may properly be charged in the indictment as being present in fact." Thus, the question arose "whether in this case the doctrine of constructive presence can apply." In answering it, John Marshall ended the contention that so cruel a dogma can ever be applied in America. This achievement was one of his noblest services to the American people.[1266]

Again an imposing array of precedents was examined. "The man, who incites, aids, or procures a treasonable act," is not, merely on that account, "legally present when that act is committed."[1267] Of course, other facts might require that a man should be considered to be present although really absent; for example, if he were on the way there for the purpose of taking part in the specific act charged, or if he were stationed near in order to coöperate with those who actually did the deed, he would be of them and associated with them in the perpetration of that particular act.[1268] But otherwise he could not be said to be present.

If this were not so, then a man levying war in one part of the country might be construed to be present at and taking part in hostilities at the most distant point of the Republic—a participator in "every overt act performed anywhere"; and he would be liable to trial and conviction "in any state on the continent where any overt act has been committed" by anybody. "He may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts."[1269]

If Burr were guilty of treason in connection with the assemblage on Blennerhassett's island, it was only because Burr procured the men to meet for the purpose of levying war against the United States. But the fact that he did procure the treasonable assemblage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence—since the procuring of the assemblage takes the place of presence at it. "If in one case," declared Marshall, "the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses."[1270]

Neither presence nor procurement could, therefore, be proved by collateral testimony: "No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law." And "if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured, or inferred, can satisfy the constitution and the law.

"The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses," as required by the Constitution. "Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses."[1271]

To the objection that this could "scarcely ever" be done, since "the advising or procurement of treason is a secret transaction," the answer was, said Marshall, "that the difficulty of proving a fact will not justify conviction without proof." And most "certainly it will not justify conviction without [one] direct and positive witness in a case where the constitution requires two." The true inference from "this circumstance" was "that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason ... is not treason in itself."[1272]

The testimony which the Government now proposed to offer was to "prove—what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blennerhassett's island? No!" But, instead, "evidence [of] subsequent transactions at a different place and in a different state." But such "testimony was not relevant." If it could be introduced at all, it would be "only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury."[1273]

Before closing, Marshall answered the threats of Hay and Wirt that, if he decided in favor of Burr, he would be impeached: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true.... No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[1274]

Let the jury apply the law as announced to the facts as proved and "find a verdict of guilty or not guilty as their own consciences shall direct."

The next morning the petit jury retired, but quickly returned. Marshall's brother-in-law, Colonel Edward Carrington, foreman, rose and informed the court that the jury had agreed upon a verdict.

"Let it be read," gravely ordered Marshall.

And Colonel Carrington read the words of that peculiar verdict:

"We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty."[1275]

Instantly Burr, Martin, Wickham, and Botts were on their feet protesting. This was no verdict, according to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure.

Discussion followed. Hay insisted that the verdict be received and recorded as returned. "It was like the whole play," exclaimed Martin, "Much Ado About Nothing." Of course the verdict must be corrected. Did the jury mean to "censure ... the court for suppressing irrelevant testimony?" Unthinkable! And if not, they ought to answer simply "Guilty" or "Not Guilty."[1276]

Colonel Carrington informed the court that, among themselves, the jury had said that "they would alter the verdict if it was informal—it was in fact a verdict of acquittal." Richard E. Parker, also of the jury, said he never would agree to change the form—they knew what they were about when they adopted it. Parker was "a violent Jeffersonian partisan," and Burr's friends had reproved him for accepting such a man as a member of the jury.[1277]

Soothingly Marshall directed that the verdict "stand on the bill" as the jury wished it; but, since it was "in effect a verdict of acquittal," let "an entry be made on the record of 'Not Guilty.'"

The Chief Justice "politely thanked the jury for their patient attention during the whole course of this long trial, and then discharged them."[1278]

A week before Marshall delivered his opinion, an attempt was made to induce Blennerhassett to betray Burr. On August 23 William Duane, editor of the Aurora, and an intimate friend, supporter, and agent of Jefferson, approached Blennerhassett for that purpose, and offered to go to Washington, "now or at any time hereafter," in his behalf. Duane assured him that the Administration would refuse him (Duane) "nothing he should ask." But Blennerhassett repulsed Duane's advances.[1279]

Hay, angry and discomfited, entered a nolle prosequi to the indictments of Dayton, Blennerhassett, and the others for the same crime; but, in obedience to Jefferson's orders, demanded that all of them, Burr included, be still held under the charge of treason, that they might be sent for trial to some place where an overt act might have been committed.[1280] Marshall, after enduring another long argument, gently put the application aside because all the conspirators were now to be tried upon the charge of misdemeanor under the second indictment.[1281]

Marshall's motives were clearer than ever to Jefferson. "The event has been what was evidently intended from the beginning of the trial; ... not only to clear Burr, but to prevent the evidence from ever going before the world. But this latter case must not take place." Hay must see to it that "not a single witness be paid or permitted to depart until his testimony has been committed to writing.... These whole proceedings will be laid before Congress, that they may ... provide the proper remedy."[1282]

Jefferson ordered Hay to press for trial on the indictment for misdemeanor, not with the expectation of convicting Burr, but in the hope that some sort of testimony would be brought out that would convict Marshall in the court of public opinion, and perhaps serve as a pretext for impeaching him. Thus, in the second trial of which we are now to be spectators, "the chief-justice was occupied in hearing testimony intended for use not against Burr, but against himself."[1283] It was for this reason that Marshall, when the trial for misdemeanor began, threw open wide the doors to testimony.[1284]

Burr's counsel, made unwise by victory, insisted that he should not be required to give bail, and Marshall, although the point had been decided and was not open to dispute, permitted and actually encouraged exasperatingly extended argument upon it.[1285] Burr had submitted to give bail at the beginning, said Botts, not because it was "demandable of right," but because he and his counsel "had reason to apprehend danger ... from the violence and turbulence of the mob."[1286]

Marshall was careful to deliver another long and, except for the political effect, wholly unnecessary opinion; nor was it directly on the matter at issue. Counsel floundered through a tangle of questions, Marshall exhibiting apparent indecision by manifesting great concern, even on the simplest points.

John Marshall
From the portrait by Robert Matthew Sully, in the Corcoran Gallery of Art, Washington, D.C.

Finally, he ordered that Burr "be acquitted and discharged" as to the indictment for treason, but to be held in five thousand dollars bail under the indictment for misdemeanor. Jonathan Dayton and William Langbourne offered themselves and were accepted as sureties; and on September 3, after nearly nine weeks of imprisonment, Burr walked out of court unhindered, no longer to be under lock and bar and armed guard.[1287]

Merry were the scenes in the houses of Richmond society that night; hilarious the rejoicing about the flowing board of Luther Martin; and, confused and afflicted with a blurred anger, the patriotic multitude talked resentfully of Marshall's decision. On one side it was said that justice had prevailed and persecution had been defeated; on the other, that justice had been mocked and treason protected. Hay, Wirt, and MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and Burr, jubilant and aggressive.

Many conflicting stories sprang up concerning Marshall—his majestic bearing on the bench, his servility, his courage, his timidity. One of these has survived: "Why did you not tell Judge Marshall that the people of America demanded a conviction?" a disgusted Republican asked of Wirt. "Tell him that!" exclaimed Wirt. "I would as soon have gone to Herschel, and told him that the people of America insisted that the moon had horns as a reason why he should draw her with them."[1288]

The captain of the "conspiracy" had never lost heart, and, save when angered by Marshall's seeming inconsistency and indecision, had continued to be cheery and buoyant. Steadily he had assured his friends that, when acquitted, he would again take up and put through his plans. This thought now dominated him. Blennerhassett, upon visiting his chief, found Burr "as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption," with better prospects for success than ever.[1289]

Quick to press his advantage, Burr the next morning demanded the production of the letters called for in the subpœna duces tecum to Jefferson. These had not been forthcoming, and Burr asserted the President to be in contempt of court and subject to punishment therefor.[1290] Once more altercation flared up in debate. Hay said he had one of the letters; that it had not "the most distant bearing on the subject," and that he might prefer "to be put in prison" rather than disclose its contents.[1291]

Jefferson had become very nervous about Marshall's order and plainly feared that the Chief Justice might attempt to enforce it. The thought frightened him; he had no stomach for a direct encounter. At last he wished to compose the differences between himself and the obstinate and fearless, if gentle-mannered, Marshall. So the President directed his district attorney to tell the United States Marshal to obey no order of the court and to intimate to the Chief Justice the wisdom of deferring the vexed question until the next session of Congress.

He wrote, said Jefferson, "in a spirit of conciliation and with the desire to avoid conflicts of authority between the high branches of the government which would discredit equally at home and abroad." Naturally Burr and his counsel would like "to convert this trial into a contest between the judiciary & Exve Authorities"; but he had not "expected ... that the Ch. Justice would lend himself to it." Surely Marshall's "prudence and good sense" would not "permit him to press it."

But if Marshall was determined to attack Jefferson and "issue any process which [would] involve any act of force to be committed on the persons of the Exve or heads of departs," Hay was to give Jefferson "instant notice, and by express if you find that can be done quicker than by post; and ... moreover ... advise the marshal on his conduct as he will be critically placed between us."

The "safest way" for that officer to pursue "will be to take no part in the exercise of any act of force ordered in this case. The powers given the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-eminence, & every individual also from judiciary vengeance, and the marshal may be assured of it's effective exercise to cover him."

Such was Jefferson's threat to use force against the execution of the process of the National courts. But the President went on: "I hope however that the discretion of the C. J. will suffer this question to lie over for the present, and at the ensuing session of the legislature [Congress] he may have means provided for giving individuals the benefit of the testimony of the Exve functionaries in proper cases, without breaking up the government. Will not the associate judge [Cyrus Griffin] assume to divide his court and procure a truce at least in so critical a conjuncture?"[1292]

When Hay acknowledged that he had one of the letters from Wilkinson to Jefferson, a subpœna duces tecum was served on the District Attorney, notwithstanding his gallant declaration that he would not produce it even if he were sent to jail for not doing so. Hay then returned a copy of such parts of the letter as he thought "material for the purposes of justice," declining to give those passages which Jefferson deemed "confidential."[1293] Burr insisted on the production of the entire letter.

Botts moved that the trial be postponed "till the letter shall be produced." Another of that unending series of arguments followed,[1294] and still another of Marshall's cautious but convincing opinions came forth. Jefferson, he said, had not forbidden the production of the letter—the President, in response to the subpœna upon him, had sent the document to Hay, leaving to the discretion of the District Attorney the question as to what should be done with it. Of course if, for public reasons, Jefferson had declined to produce the letter, his "motives may [have been] such as to restrain the court" from compelling him to do so.[1295] At least Burr might see the letter now; consideration of the other features of the controversy would be deferred.[1296]

The distracted Hay, his sour temper made more acid by a "greatly aggravated influenza," wrote Jefferson of the Government's predicament; Marshall's remarks from the bench had not been explicit, he said, and "it is impossible to foresee what his opinion will be unless I could foresee what will be the state of his nerves. Wirt, who has hitherto advocated the integrity of the Chief Justice, now abandons him."

The District Attorney dolefully tells the President that he is "very decidedly of the opinion, that these prosecutions will terminate in nothing." He thinks the Government will be defeated on the trials for misdemeanor, and believes the indictments for that offense should be dismissed and motion made for the commitment of Burr, Blennerhassett, and Smith to be transferred to some spot where their crime might be proved. "Instruct me," he begs Jefferson, "specially on this point."[1297]

Jefferson, now on his vacation at Monticello, directed Hay to press at Richmond the trial of Burr for misdemeanor. "If defeated it will heap coals of fire on the head of the judge; if convicted, it will give them time to see whether a prosecution for treason can be instituted against him in any, and what court." A second subpœna duces tecum seems to have been issued against Jefferson,[1298] and he defiantly refused to "sanction a proceeding so preposterous," by "any notice" of it.[1299] And there this heated and dangerous controversy appears to have ended.[1300]

Finally, the hearing of evidence began on the indictment against Burr for misdemeanor—for having conducted an attack upon Mexico. For seven weeks the struggle went on. The Government's attorneys showed the effects of the long and losing fight. Many witnesses were sent home unexamined or merely leaving their affidavits. Hay acted like the sick man he really was. The dour MacRae appeared "utterly chop-fallen; an object of disgust to his friends, and pity to his enemies."[1301] Only Wirt, with his fine gallantry of spirit, bore himself manfully. Motions, arguments, opinions continued. One of Marshall's rulings on the admissibility of evidence moved Blennerhassett to ecstasies.[1302]

More than fifty witnesses were examined, the heavy preponderance of the evidence clearly showing that Burr's purpose and expectations had been to settle the Washita lands and, in case the United States went to war with Spain, and only in that event, to lead a force against the Spaniards. No testimony whatever was given tending to disclose any hostile plans against the United States, or even for an attack upon Mexico without war between America and Spain, except that of Wilkinson, Eaton, Taylor, Allbright, and the Morgans, as already set out. One witness also told of a wild and fanciful talk by the eccentric and imaginative Blennerhassett.[1303]

The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a despicable light,[1304] and Eaton appeared more fantastic than ever; but both these heroes put on looks of lofty defiance. The warrior-diplomat of Algerian fame had now fallen so low in the public esteem that one disgusted Virginian had threatened to kick him out of a room.[1305]

On September 15, 1807, the District Attorney, by attempting to enter a nolle prosequi on the indictment of Burr for misdemeanor, tried to prevent the jury from rendering a verdict.[1306] One member of the jury wanted that body to return a special finding; but his associates would have none of it, and in half an hour they reported a straight verdict of "Not Guilty."[1307]

Hay dismissed further proceedings against Smith and Blennerhassett on the indictments for misdemeanor, and then moved to commit Burr and his associates upon the charge of treason by "levying war" within the jurisdiction of the United States Court for the District of Ohio.[1308] On this motion, Marshall, as an examining magistrate, gave the Government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. Blennerhassett thought that Marshall was conciliating "public prejudice."[1309] Burr told his counsel that the Chief Justice "did not for two days together understand either the questions or himself ... and should in future be put right by strong language." So angered was he with Marshall's "wavering," that at times "Burr ... would not trust himself to rise up to sum up and condense the forces displayed by his counsel, into compact columns, after the engagement, toward the close of the day, as is generally his practice."[1310]

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

The last volume of Marshall's "Life of Washington," that "five volumed libel," as Jefferson branded the biography, had recently appeared. Blennerhassett, who, in expressing his own opinions, usually reflected those of his associates, had "no doubt" that the President's perusal of Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a more deadly hatred of the Marshall faction than he has ever conceived of all the Burrites he ever heard of."[1313]

The President's partisans in Virginia were prompt to stoke the furnace of his wrath. William Thompson of Petersburgh[1314] wrote a brief "view" of the Burr trial and sent "the first 72. pages" to Jefferson, who read them "with great satisfaction" and clamored for more.[1315] Marshall's conduct should indeed fill everybody "with alarm," wrote Jefferson in reply. "We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it. Our case too is the more desperate as to attempt to make the law plainer by amendment is only throwing out new materials for sophistry."[1316]

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

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

On October 20, Marshall delivered his last opinion in the Burr trials. It was upon the Government's motion to commit Burr and his associates for treason and misdemeanor committed on the dismal island at the mouth of the Cumberland, where Burr had first greeted his little band of settlers and potential adventurers. He must grant the motion, Marshall said, "unless it was perfectly clear that the act was innocent." If there was any doubt, the accused must be held. The Chief Justice then carefully analyzed all the evidence.[1319] He concluded that Burr's purposes were to settle the Washita lands and to invade Mexico if opportunity offered, perhaps, however, only in the event of war with Spain. But whether this was so ought to be left to the jury; Marshall would "make no comment upon it which might, the one way or the other, influence their judgment."[1320] He therefore would commit Burr and Blennerhassett "for preparing and providing the means for a military expedition" against Spain.

"After all, this is a sort of drawn battle," Burr informed Theodosia. "This opinion was a matter of regret and surprise to the friends of the chief justice and of ridicule to his enemies—all believing that it was a sacrifice of principle to conciliate Jack Cade. Mr. Hay immediately said that he should advise the government to desist from further prosecution."[1321]

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

Marshall's final opinion and his commitment of Burr, under bail, to be tried in Ohio for possible misdemeanor at the mouth of the Cumberland should a grand jury indict him for that offense, disgusted Burr. Indeed he was so "exasperated" that "he was rude and insulting to the Judge."[1322] Nor did Marshall's friends in Richmond feel differently. They "are as much dissatisfied," records Blennerhassett, "with his opinion yesterday as Government has been with all his former decisions. He is a good man, and an able lawyer, but timid and yielding under the fear of the multitude, led ... by the vindictive spirit of the party in power."[1323]

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

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

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

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

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

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

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

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

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

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

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

"Your country, sir, owes you a debt of gratitude for former favors," which cannot be paid because "the whole stock of national indignation and contempt would be exhausted, before the half of your just claim could be discharged." Marshall had earned "infamy and detestation" by his efforts to erect "tyranny upon the tomb of freedom." His skill "in conducting the manouvres of a political party," his "crafty cunning" as a diplomat, had been perpetuated by the "genius" of John Thompson, whose "literary glory ... will shine when even the splendour of your talents and your crimes shall have faded forever. When your volumes of apology for British insolence and cruelty[1335] shall be buried in oblivion, the 'Letters of Curtius'[1336] will ... 'damn you to everlasting fame.'" Marshall's entire life, according to Lucius, had been that of a sly, bigoted politician who had always worked against the people. He might have become "one of the boasted patriots of Virginia," but now he was "a disgrace to the bench of justice." He was a Jeffreys, a Bromley, a Mansfield.[1337]

Quickly appeared a second letter to Marshall, accusing him of having "prostrated the dignity of the chief justice of the United States." Lucius goes into a lengthy analysis of Marshall's numerous opinions in the Burr trials. A just review of the proceedings, he said, demonstrates that the Chief Justice had "exhibited a culpable partiality towards the accused, and a shameless solicitude ... to implicate the government ... as negligent of their duty"—something that "a less malicious magistrate" never would have dared to display.[1338] A third letter continued the castigation of Marshall and the defense of Jefferson. Closing an extended argument on this joint theme, Lucius addressed Marshall thus: "Common sense, and violated justice, cry aloud against such conduct; and demand against you the enforcement of these laws, which you refuse to administer."[1339]

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

Incited by similar attacks in the Republican press of Baltimore,[1342] the more ardent patriots of that place resolved publicly to execute Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the morning of November 3, satirical handbills, announcing this act of public justice, were scattered over the city:

"AWFUL!!!

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

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

"First, Chief Justice M. for a repetition of his X.Y.Z. tricks, which are said to be much aggravated by his felonins [sic] capers in open Court, on the plea of irrelevancy;

"Secondly, His Quid Majesty [Burr], charged with the trifling fault of wishing to divide the Union, and farm Baron Bastrop's grant;

"Thirdly, B[lennerhassett], the chemist, convicted of conspiracy to destroy the tone of the public Fiddle;

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

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

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

A policeman named Goldsmith notified Blennerhassett that a great mob was gathering, "had everything prepared for tarring and feathering and would, ... if disappointed or opposed, tear Martin [and Blennerhassett] to pieces." The manager of the hotel begged Blennerhassett to hide in the garret of the hostelry. This the forlorn Irishman did, and beheld from a window in the attic what passed below.

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

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

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

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

Solely to gratify vox populi, the Senate next indulged in a doubtful performance. An attempt was made to expel Senator John Smith of Ohio. With only a partial examination, and without allowing him to call a single witness in his own behalf beforehand, a special Senate Committee[1348] presented a report concluding with a resolution to expel Smith because of "his participation in the conspiracy of Aaron Burr against the peace, union and liberties of the people of the United States."[1349] This surprising document was the work of John Quincy Adams,[1350] who apparently adopted the ideas and almost the language of Lucius.

Burr's conspiracy, wrote Adams, was so evil and was "established by such a mass of concurring and mutually corroborative testimony" that the "honor" of the Senate and "the deepest interests of this nation" required that nobody connected with it should be a member of Congress. After an unctuous recitation of accepted generalities and a review of the expulsion of Senator Blount, together with an excellent statement of the law of parliamentary bodies in such cases, Adams got down to the business of destroying John Marshall.[1351]

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

"If," wrote Adams, "the daylight of evidence combining one vast complicated intention, with overt acts innumerable, be not excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest understanding cannot disguise, crimes before which ordinary treason whitens into virtue" and beyond "the ingenuity of a demon."

Adams continued: "Whether the transactions proved against Aaron Burr did or did not amount, in technical language, to an overt act of levying war, your committee have not a scruple of doubt ... that, but for the vigilance and energy of the government, and of faithful citizens under its directions ... in crushing his designs, they would ... have terminated not only in war, but in a war of the most horrible description, ... at once foreign and domestic."

To such lengths can popular demand, however unjust, drive even cold, unemotional, and upright men who are politically ambitious. Adams's Federalist confrères reacted quickly;[1352] and the New York Evening Post sharply criticized him.[1353] When the report came up in the Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut, attacked it and its author with "unusual virulence." Bayard was especially severe.[1354] Thus assailed, Adams was cast into black depression: "It is indeed a fiery ordeal I have to go through. God speed me through it!" he wrote in his diary that night.[1355]

William Branch Giles cast the deciding vote which defeated Adams's resolution—the Senate refusing to expel Smith by a vote of 19 yeas to 10 nays,[1356] just one short of the necessary two thirds. The Virginia Republican Senator attacked the resolution with all his fiery eloquence, and compelled the admiration even of Adams himself.[1357] "I shall vote against the resolution," Giles concluded, "solely from the conviction of the innocence of the accused."[1358]

Herefrom one may judge the temper of the times and the perilous waters through which John Marshall had been compelled to pilot the craft of justice. If that "most deliberative legislative body" in our Government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the Chief Justice in overcrowded Richmond during the trial of Aaron Burr, and the real impending danger for Marshall, after the acquittal of the man whom Jefferson and the majority had branded with the most hideous infamy.

Fortunate, indeed, for the Chief Justice of the United States, and for the stability of American institutions, that the machinery of impeachment was, during these fateful months, locked because the President, Congress, and the Nation were forced to give their attention to the grave foreign situation which could no longer be ignored.

Going about his duties in Washington, or, at home, plodding out to the farm near Richmond, joking or gossiping with friends, and caring for his afflicted wife, Marshall heard the thunders of popular denunciation gradually swallowed up in the louder and ever-increasing reverberations that heralded approaching war with Great Britain. Before the clash of arms arrived, however, his level common sense and intelligent courage were again called upon to deal with another of those perplexing conditions which produced, one by one, opinions from the Supreme Bench that have become a part of the living, growing, yet stable and enduring Constitution of the American Nation.