John Marshall and the Constitution, a Chronicle of the Supreme Court

by Edward Samuel Corwin

On the 22d of May the United States Court for the Fifth Circuit and the Virginia District formally convened, with Marshall presiding and Judge Griffin at his side. On the same day the grand jury was sworn, with John Randolph as foreman, and presently began taking testimony. Unluckily for the prosecution, the proceedings now awaited the arrival of Wilkinson and the delay was turned to skillful use by the defense to embroil further the relations between the Chief Justice and the President. With this end in view, Burr moved on the 9th of June that a subpœna duces tecum issue to Jefferson requiring him to produce certain papers, including the famous cipher letter to Wilkinson. The main question involved, of course, was that of the right of the Court under any circumstances to issue a subpœna to the President, but the abstract issue soon became involved with a much more irritating personal one. “This,” said Luther Martin, who now found himself in his element, “this is a peculiar case, sir. The President has undertaken to prejudge my client by declaring that ‘of his guilt there is no doubt.’ He has assumed to himself the knowledge of the Supreme Being himself and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of the country which has rewarded him. He has let slip the dogs of war, the hell-hounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?”

Wirt’s answer to Martin was also a rebuke to the Court. “Do they [the defense] flatter themselves,” he asked, “that this court feel political prejudices which will supply the place of argument and innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort. But I do not believe it.… Sir, no man, foreigner or citizen, who hears this language addressed to the court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the court.” These words touched Marshall’s conscience, as well they might. At the close of the day he asked counsel henceforth to “confine themselves to the point really before the court”—a request which, however, was by no means invariably observed through the following days.

A day or two later Marshall ruled that the subpœna should issue, holding that neither the personal nor the official character of the President exempted him from the operation of that constitutional clause which guarantees accused persons “compulsory process for obtaining witnesses” in their behalf. The demand made upon the President, said the Chief Justice, by his official duties is not an unremitting one, and, “if it should exist at the time when his attendance on a court is required, it would be sworn on the return of the subpœna and would rather constitute a reason for not obeying the process of the court than a reason against its being issued.” Jefferson, however, neither obeyed the writ nor swore anything on its return, though he forwarded some of the papers required to Hay, the district attorney, to be used as the latter might deem best. The President’s argument was grounded on the mutual independence of the three departments of Government; and he asked whether the independence of the Executive could long survive “if the smaller courts could bandy him from pillar to post, keep him constantly trudging from North to South and East to West, and withdraw him entirely from his executive duties?” The President had the best of the encounter on all scores. Not only had Marshall forgotten for the nonce the doctrine he himself had stated in Marbury vs. Madison regarding the constitutional discretion of the Executive, but what was worse still, he had forgotten his own discretion on that occasion. He had fully earned his rebuff, but that fact did not appreciably sweeten it.

On the 24th of June the grand jury reported two indictments against Burr, one for treason and the other for misdemeanor. The former charged that Burr, moved thereto “by the instigation of the devil,” had on the 10th of December previous levied war against the United States at Blennerhassett’s island, in the county of Wood, of the District of Virginia, and had on the day following, at the same place, set in motion a warlike array against the city of New Orleans. The latter charged that a further purpose of this same warlike array was an invasion of Mexico. Treason not being a bailable offense, Burr had now to go to jail, but, as the city jail was alleged to be unhealthful, the Court allowed him to be removed to quarters which had been proffered by the Governor of the State in the penitentiary just outside the city. Burr’s situation here, writes his biographer, “was extremely agreeable. He had a suite of rooms in the third story, extending one hundred feet, where he was allowed to see his friends without the presence of a witness. His rooms were so thronged with visitors at times as to present the appearance of a levee. Servants were continually arriving with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice, and other articles—presents from the ladies of the city. In expectation of his daughter’s arrival, some of his friends in town provided a house for her accommodation. The jailer, too, was all civility.” ¹ Little wonder that such goings-on are said to have “filled the measure of Jefferson’s disgust.”

¹ Parton’s Life and Times of Aaron Burr (13th Edition, N. Y., 1860), p. 479.

The trial itself opened on Monday, the 3d of August. The first business in hand was to get a jury which would answer to the constitutional requirement of impartiality—a task which it was soon discovered was likely to prove a difficult one. The original panel of forty-eight men contained only four who had not expressed opinions unfavorable to the prisoner, and of these four all but one admitted some degree of prejudice against him. These four were nevertheless accepted as jurors. A second panel was then summoned which was even more unpromising in its make-up, and Burr’s counsel began hinting that the trial would have to be quashed, when Burr himself arose and offered to select eight out of the whole venire to add to the four previously chosen. The offer was accepted, and notwithstanding that several of the jurors thus obtained had publicly declared opinions hostile to the accused, the jury was sworn in on the 17th of August.

At first glance Burr’s concession in the selecting of a jury seems extraordinary. But then, why should one so confident of being able to demonstrate his innocence fear prejudice which rested on no firmer basis than ignorance of the facts? This reflection, however, probably played small part in Burr’s calculations, for already he knew that if the contemplated strategy of his counsel prevailed the case would never come before the jury.

The first witness called by the prosecution was Eaton, who was prepared to recount the substance of numerous conversations he had held with Burr in Washington in the winter of 1805-6, in which Burr had gradually unveiled to him the treasonable character of his project. No sooner, however, was Eaton sworn than the defense entered the objection that his testimony was not yet relevant, contending that in a prosecution for treason the great material fact on which the merits of the entire controversy pivots was the overt act, which must be “an open act of war”; just as in a murder trial the fact of the killing, the corpus delicti, must be proved before any other testimony was relevant, so in the pending prosecution, said they, no testimony was admissible until the overt act had been shown in the manner required by the Constitution.

The task of answering this argument fell to Wirt, who argued, and apparently with justice, that the prosecution was free to introduce its evidence in any order it saw fit, provided only that the evidence was relevant to the issue raised by the indictment, and that if an overt act was proved “in the course of the whole evidence,” that would be sufficient. The day following the Court read an opinion which is a model of ambiguous and equivocal statement, but the purport was fairly clear: for the moment the Court would not interfere, and the prosecution was free to proceed as it thought best, with the warning that the Damocles sword of “irrelevancy” was suspended over its head by the barest thread and might fall at any moment.

For the next two days the legal battle was kept in abeyance while the taking of testimony went forward. Eaton was followed on the stand by Commodore Truxton, who stated that in conversation with him Burr had seemed to be aiming only at an expedition against Mexico. Then came General Morgan and his two sons, who asserted their belief in the treasonable character of Burr’s designs. Finally a series of witnesses, the majority of them servants of Blennerhassett, testified that on the evening of December 10, 1806, Burr’s forces had assembled on the island.