In the concourse thus drawn to Richmond, few there were who were not certain that Burr had planned and attempted to assassinate Jefferson, overthrow the Government, shatter the Nation, and destroy American "liberty"; and so vocal and belligerent was this patriotic majority that men who at first held opinions contrary to the prevailing sentiment, or who entertained doubts of Burr's guilt, kept discreetly silent. So aggressively hostile was public feeling that, weeks later, when the bearing and manners of Burr, and the devotion, skill, and boldness of his counsel had softened popular asperity, Marshall declared that, even then, "it would be difficult or dangerous for a jury to venture to acquit Burr, however innocent they might think him."[1021] The prosecution of Aaron Burr occurred when a tempest of popular prejudice and intolerance was blowing its hardest.
The provision concerning treason had been written into the American Constitution "to protect the people against that horrible and dangerous doctrine of constructive treason which had stained the English records with blood and filled the English valleys with innocent graves."[1022]
The punishment for treason in all countries had been brutal and savage in the extreme. In England, that crime had not perhaps been treated with such severity as elsewhere. Yet, even in England, so harsh had been the rulings of the courts against those charged with treason, so inhuman the execution of judgments upon persons found guilty under these rulings, so slight the pretexts that sent innocent men and women to their death,[1023] that the framers of our fundamental law had been careful to define treason with utmost clearness, and to declare that proof of it could only be made by two witnesses to the same overt act or by confession of the accused in open court.[1024]
That was one subject upon which the quarreling members of the Constitutional Convention of 1787 had been in accord, and their solution of the question had been the one and the only provision of which no complaint had been made during the struggle over ratification.
Every member of that Convention—every officer and soldier of the Revolution from Washington down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated American independence—all such persons could have been prosecuted and might have been convicted as "traitors" under the British law of constructive treason.[1025] "None," said Justice James Iredell in 1792, "can so highly ... prize these provisions [of the Constitution] as those who are best acquainted with the abuses which have been practised in other countries in prosecutions for this offence.... We ... hope that the page of American history will never be stained with prosecutions for treason, begun without cause, conducted without decency, and ending in iniquitous convictions, without the slightest feelings of remorse."[1026]
Yet, six years later, Iredell avowed his belief in the doctrine of constructive treason.[1027] And in less than seventeen years from the time our National Government was established, the reasons for writing into the Constitution the rigid provision concerning treason were forgotten by the now thoroughly partisanized multitude, if, indeed, the people ever knew those reasons.
Moreover, every National judge who had passed upon the subject, with the exception of John Marshall, had asserted the British doctrine of constructive treason. Most of the small number who realized the cause and real meaning of the American Constitutional provision as to treason were overawed by the public frenzy; and brave indeed was he who defied the popular passion of the hour or questioned the opinion of Thomas Jefferson, then at the summit of his popularity.[1028]
One such dauntless man, however, there was among the surging throng that filled the Capitol Square at Richmond after the adjournment of court on May 22, and he was a vigorous Republican, too. "A tall, lank, uncouth-looking personage, with long locks of hair hanging over his face, and a queue down his back tied in an eel-skin, his dress singular, his manners and deportment that of a rough backwoodsman,"[1029] mounted the steps of a corner grocery and harangued the glowering assemblage that gathered in front of him.[1030] His daring, and an unmistakable air that advertised danger to any who disputed him, prevented that violent interruption certain to have been visited upon one less bold and formidable. He praised Burr as a brave man and a patriot who would have led Americans against the hated Spanish; he denounced Jefferson as a persecutor who sought the ruin of one he hated. Thus Andrew Jackson of Tennessee braved and cowed the hostile mob that was demanding and impatiently awaiting the condemnation and execution of the one who, for the moment, had been made the object of the country's execration.[1031]
Jackson had recovered from his brief distrust of Burr, and the reaction had carried his tempestuous nature into extreme championship of his friend. "I am more convinced than ever," he wrote during the trial, "that treason was never intended by Burr."[1032] Throughout the extended and acrimonious contest, Jackson's conviction grew stronger that Burr was a wronged man, hounded by betrayers, and the victim of a political conspiracy to take his life and destroy his reputation. And Jackson firmly believed that the leader of this cabal was Thomas Jefferson. "I am sorry to say," he wrote, "that this thing [the Burr trial] has ... assumed the shape of a political persecution."[1033]
The Administration retaliated by branding Andrew Jackson a "malcontent"; and Madison, because of Jackson's attitude, prevented as long as possible the military advancement of the refractory Tennesseean during the War of 1812.[1034] On the other hand, Burr never ceased to be grateful to his frontiersman adherent, and years later was one of those who set in motion the forces which made Andrew Jackson President of the United States.[1035]