These sentiments were hardly in keeping with “J. Marshall’s” true feelings. For once he was not exercising that candor which his friends considered his strongest attribute. For if Jefferson distrusted Marshall, that distrust was in no measure greater than Marshall’s distrust of Jefferson. When in the presidential election of 1800 Jefferson and Burr received an equal number of electoral votes and the election was thrown into the House of Representatives, Hamilton, displaying his usual animosity toward Burr, appealed to Marshall, then a member of the House from Virginia, to support Jefferson. To Hamilton’s appeal Marshall replied on New Year’s Day, 1801: “To Mr. Jefferson whose political character is better known to me than that of Mr. Burr, I have felt insuperable objections. His foreign prejudices seem to me totally to unfit him for the chief magistracy of the nation which cannot indulge those prejudices without sustaining deep and permanent injury. Your representation of Mr. Burr, with whom I am totally unacquainted, shows that from him still greater danger than even from Mr. Jefferson may be apprehended. But I can take no part in the business. I cannot bring myself to aid Mr. Jefferson.”
Here then was Jefferson, afraid that Marshall and his followers would turn the nation’s government into an hereditary monarchy; and Marshall equally afraid that Jefferson and his party, unless restrained, would soon reduce the nation to anarchy. To such absurd extremes can political partisanship drive otherwise highly intelligent men.
In spite of his anxieties and misgivings, Marshall, in his capacity as Chief Justice, performed his official duty in administering the oath of office to President Jefferson. How painful that duty must have been is revealed by a letter he wrote on the same day to his friend Charles Cotesworth Pinckney, of South Carolina: “The Democrats are divided into speculative theorists and absolute terrorists. With the latter I am disposed to class Mr. Jefferson. If he ranges himself with them it is not difficult to foresee that much difficulty is in store for the country—if he does not, they will soon be his enemies and calumniators.” Strong words for the Chief Justice to use against the President of the United States so soon after the Chief Justice had administered the oath to the President.
During the first nine months of his administration Jefferson had sufficient evidence of the animosity of the Federal bench, largely directed by Marshall, to write to a friend: “The Federalists have retired into the judiciary as a stronghold ... and from that battery all the works of republicanism are to be broken down and erased.”
The Republicans were not slow in taking up the Federalist challenge. Their first major offensive was the impeachment of Justice Chase. The blustering, choleric Chase, with his violent partisan comments from the bench, had provided just cause for complaint, Heaven knows. Yet his trial by the Senate and his exoneration from the charges leveled at him by the House indicated that impeachment was a dull and unreliable weapon. The verdict left Jefferson more than ever convinced that a grave error had been committed in the Constitution by granting to the judiciary authority equal to that of the executive and legislative branches. Marshall’s epochal decision in the case of Marbury versus Madison, confirming the Supreme Court’s right to pass on the constitutionality of laws enacted by Congress, strengthened that belief. Nowhere was the presumption of the judiciary better exemplified than in the person and actions of John Marshall. Jefferson’s unerring political instinct told him that the quickest and surest way to cut the judiciary down to size was to get rid of Marshall, either by impeachment or by amending the Constitution to make Federal judges removable from office at the will of the President and Congress.
But a case must first be made against Marshall. The Burr trial presented a perfect opportunity. Of this the President and the Chief Justice were both well aware, and the party leaders no less than the President and the Chief Justice. So it was that, at Richmond in the spring of 1807, Aaron Burr did not stand at the bar alone. The Chief Justice also was on trial.
President Jefferson had taken his time in acting against the alleged conspirators. He had been waiting for tangible evidence that would stand up in a court of law. Once he was convinced that he had it he moved with dispatch and determination to find Burr guilty. Otherwise, after the unequivocal charge of “guilt beyond question” proclaimed to the nation in his special message to Congress, he and his administration would be made to look ridiculous. If the Chief Justice cooperated to this end, all well and good. If on the contrary, as Jefferson foresaw, the Chief Justice raised obstructions in favor of the prisoner, he would do well to look to his own head. It was already being rumored that the President was so set on getting rid of Marshall, and so confident that doing so was a mere matter of time, that he had already chosen a successor in Spencer Roane, another Virginian, but one consecrated to the cause of Republicanism.
And here at the very outset of the trial the Chief Justice was prejudging the charge of treason by stating that if there had been treason there must by now be evidence of it. But no evidence had been produced before the court. In a letter to his friend Senator Giles, the President unbosomed himself on the unreasonableness of the decision.
“In what terms of decency can we speak of this?” he asked. “As if an express could go to Natchez, or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve!... But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic!... The nation will judge both the offender and the judges for themselves. If a member of the Executive or Legislative does wrong, the day is never far distant when the people will remove him. They will see then and amend the error in our Constitution which makes any branch independent of the nation.... If their protection of Burr produces this amendment, it will do more good than condemnation would have done ... and if his punishment can be commuted now for a useful amendment of the Constitution, I shall rejoice in it.”
If letting Burr go scot free resulted in checkmating Marshall and putting the judiciary in its place, Mr. Jefferson was willing to pay even that price. As for the lack of witnesses the Government, if the Chief Justice would only give it reasonable time, would take care of that. From Washington, Attorney General Rodney sent out printed circulars for wide distribution throughout the western country urging every good citizen to step up and communicate to the Government any information which might “contribute to the general welfare.” The allusion was obvious. A deputy marshal and special messenger were dispatched to Wood County, Virginia, to round up witnesses from the vicinity of Blennerhassett Island where the overt act of treason was alleged to have occurred.