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

Before any one could move, Perkins sprang to Burr's side, a pistol in each hand, and ordered him to remount. Burr refused; and the gigantic frontier lawyer lifted the slight, delicate prisoner in his hands, threw him into his saddle, and the sorry cavalcade rode on, guards now on either side, as well as before and behind their charge. Then, for the first and last time in his life, Burr lost his composure, but only for a moment; tears filled his eyes, but instantly recovering his self-possession, he finished the remainder of that harrowing trip as courteous, dignified, and serene as ever.977

At Fredericksburg, Virginia, Perkins received orders from the Government to take his prisoner to Richmond instead of to Washington. John Randolph describes the cavalcade: "Colonel Burr … passed by my door the day before yesterday under a strong guard… To guard against enquiry as much as possible he was accoutred in a shabby suit of homespun with an old white hat flopped over his face, the dress in which he was apprehended."978

In such fashion, when the candles were being lighted on the evening of Thursday, March 26, 1807, Aaron Burr was brought into the Virginia Capital, where, before a judge who could be neither frightened nor cajoled, he was to make final answer to the charge of treason.

Burr remained under military guard until the arrival of Marshall at Richmond. The Chief Justice at once wrote out,979 signed, and issued a warrant by virtue of which the desperate yet composed prisoner was at last surrendered to the civil authorities, before whom he had so long demanded to be taken.

During the noon hour on Monday, March 30, Marshall went to "a retired room" in the Eagle Tavern. In this hostelry Burr was confined. Curious citizens thronged the big public room of the inn and were "awfully silent and attentive" as the pale and worn conspirator was taken by Major Joseph Scott, the United States Marshal, and two deputies through the quiet but hostile assemblage to the apartment where the Chief Justice awaited him. To the disappointment of the crowd, the door was closed and Aaron Burr stood before John Marshall.980

George Hay, the United States District Attorney, had objected to holding even the beginning of the preliminary hearing at the hotel, because the great number of eager and antagonistic spectators could not be present. Upon the sentiment of these, as will be seen, Hay relied, even more than upon the law and the evidence, to secure the conviction of the accused man. He yielded, however, on condition that, if any discussion arose among counsel, the proceedings should be adjourned to the Capitol.981

It would be difficult to imagine two men more unlike in appearance, manner, attire, and characteristics, than the prisoner and the judge who now confronted each other; yet, in many respects, they were similar. Marshall, towering, ramshackle, bony, loose-jointed, negligently dressed, simple and unconventional of manner; Burr, undersized and erect, his apparel scrupulously neat,982 his deportment that of the most punctilious society. Outwardly, the two men resembled each other in only a single particular: their eyes were as much alike as their persons were in contrast.983 Burr was fifty years of age, and Marshall was less than six months older.

Both were calm, admirably poised and self-possessed; and from the personality of each radiated a strange power of which no one who came near either of them could fail to be conscious. Intellectually, also, there were points of remarkable similarity. Clear, cold logic was the outstanding element of their minds.

The two men had the gift of lucid statement, although Marshall indulged in tiresome repetition while Burr never restated a point or an argument. Neither ever employed imagery or used any kind of rhetorical display. Notwithstanding the rigidity of their logic, both were subtle and astute; it was all but impossible to catch either off his guard. But Marshall gave the impression of great frankness; while about every act and word of Burr there was the air of mystery. The feeling which Burr's actions inspired, that he was obreptitious, was overcome by the fascination of the man when one was under his personal influence; yet the impression of indirectness and duplicity which he caused generally, together with his indifference to slander and calumny,984 made it possible for his enemies, before his Western venture, to build up about his name a structure of public suspicion, and even hatred, wholly unjustified by the facts.

The United States District Attorney laid before Marshall the record in the case of Bollmann and Swartwout in the Supreme Court, and Perkins proudly described how he had captured Burr and brought him to Richmond. Hay promptly moved to commit the accused man to jail on the charges of treason and misdemeanor. The attorneys on both sides agreed that on this motion there must be argument. Marshall admitted Burr to bail in the sum of five thousand dollars for his appearance the next day at the court-room in the Capitol.

When Marshall opened court the following morning, the room was crowded with spectators, while hundreds could not find admittance. Hay asked that the court adjourn to the House of Delegates, in order that as many as possible of the throng might hear the proceedings. Marshall complied, and the eager multitude hurried pell-mell to the big ugly hall, where thenceforth court was held throughout the tedious, exasperating months of this historic legal conflict.

Hay began the argument. Burr's cipher letter to Wilkinson proved that he was on his way to attack Mexico at the time his villainy was thwarted by the patriotic measures of the true-hearted commander of the American Army. Hay insisted that Burr had intended to take New Orleans and "make it the capital of his empire." The zealous young District Attorney "went minutely into … the evidence." The prisoner's stealthy "flight from justice" showed that he was guilty.

John Wickham, one of Burr's counsel, answered Hay. There was no testimony to show an overt act of treason. The alleged Mexican project was not only "innocent, but meritorious"; for everybody knew that we were "in an intermediate state between war and peace" with Spain. Let Marshall recall Jefferson's Message to Congress on that point. If war did not break out, Burr's expedition was perfectly suitable to another and a wholly peaceful enterprise, and one which the President himself had "recommended" – namely, "strong settlements beyond the Mississippi."985

Burr himself addressed the court, not, he said, "to remedy any omission of his counsel, who had done great justice to the subject," but "to repel some observations of a personal nature." Treason meant deeds, yet he was being persecuted on "mere conjecture." The whole country had been unjustly aroused against him. Wilkinson had frightened the President, and Jefferson, in turn, had alarmed the people.

Had he acted like a guilty man, he asked? Briefly and modestly he told of his conduct before the courts and grand juries in Kentucky and Mississippi, and the result of those investigations. The people among whom he journeyed saw nothing hostile or treasonable in his expedition.

His "flight"? That had occurred only when he was denied the protection of the laws and when armed men, under illegal orders of an autocratic military authority, were seeking to seize him violently. Then, and only then, acting upon the advice of friends and upon his own judgment, had he "abandoned a country where the laws ceased to be the sovereign power." Why had the guards who brought him from Alabama to Richmond "avoided every magistrate on the way"? Why had he been refused the use of pen, ink, and paper – denied even the privilege of writing to his daughter? It was true that when, in South Carolina, the soldiers chanced upon three civilians, he did indeed "demand the interposition of the civil authority." Was that criminal? Was it not his right to seek to be delivered from "military despotism, from the tyranny of a military escort," and to be subjected only to "the operation of the laws of his country"?986

On Wednesday, April 1, Marshall delivered the second of that series of opinions which established the boundaries of the American law of treason and rendered the trial of Aaron Burr as notable for the number and the importance of decisions made from the bench during the progress of it, as it was famous among legal duels in the learning, power, and eloquence of counsel, in the influences brought to bear upon court and jury, and in the dramatic setting and the picturesque incidents of the proceedings.

Marshall had carefully written his opinion. At the close of court on the preceding day, he had announced that he would do this in order "to prevent any misrepresentations of expressions that might fall on him." He had also assured Hay that, in case he decided to commit Burr, the District Attorney should be heard at any length he desired on the question of bail.

Thus, at the very beginning, Marshall showed that patience, consideration, and prudence so characteristic of him, and so indispensable to the conduct of this trial, if dangerous collisions with the prevailing mob spirit were to be avoided. He had in mind, too, the haughty and peremptory conduct of Chase, Addison, and other judges which had given Jefferson his excuse for attacking the Judiciary, and which had all but placed that branch of the Government in the absolute control of that great practical genius of political manipulation. By the gentleness of his voice and manner, Marshall lessened the excuse which Jefferson was eagerly seeking in order again to inflame the passions of the people against the Judiciary.

Proof strong enough to convict "on a trial in chief," or even to convince the judge himself of Burr's guilt, was not, said Marshall, necessary to justify the court in holding him for the action of the grand jury; but there must be enough testimony "to furnish good reason to believe" that Burr had actually committed the crimes with which he stood charged.

Marshall quoted Blackstone to the effect that a prisoner could be discharged only when it appeared that the suspicion against him was "wholly groundless," but this did not mean that "the hand of malignity may grasp any individual against whom its hate may be directed or whom it may capriciously seize, charge him with some secret crime and put him on the proof of his innocence."

Precisely that "hand of malignity," however, Burr was feeling by orders of Jefferson. The partisans of the President instantly took alarm at this passage of Marshall's opinion. Here was this insolent Federalist Chief Justice, at the very outset of the investigation, presuming to reflect upon their idol. Such was the indignant comment that ran among the Republicans who packed the hall; and reflect upon the President, Marshall certainly did, and intended to do.

The softly spoken but biting words of the Chief Justice were unnecessary to the decision of the question before him; they accurately described the conduct of the Administration, and they could have been uttered only as a rebuke to Jefferson or as an attempt to cool the public rage that the President had aroused. Perhaps both motives inspired Marshall's pen when he wrote that statesmanlike sentence.987

On the whole, said Marshall, probable cause to suspect Burr guilty of an attempt to attack the Spanish possessions appeared from Wilkinson's affidavit; but the charge of treason was quite another matter. "As this is the most atrocious offence which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant and vindictive passions which may rage in the bosoms of contending parties struggling for power." Treason is the only crime specifically mentioned in the Constitution – the definition of all others is left to Congress. But the Constitution itself carefully and plainly describes treason and prescribes just how it must be proved.

Did the testimony show probable grounds for believing that Burr had committed treason? Marshall analyzed the affidavits of Eaton and Wilkinson, which constituted all of the "evidence" against Burr; and although the whole matter had been examined by the Supreme Court in the case of Bollmann and Swartwout, he nevertheless went over the same ground again. No impatience, no hasty or autocratic action, no rudeness of manner, no harshness of speech on his part should give politicians a weapon with which once more to strike at judges and courts.

Where, asked Marshall, was the evidence that Burr had assembled an army to levy war on the United States? Not before the court, certainly. Mere "suspicion" was not to be ignored when means of proving the suspected facts were not yet secured; but where the truth could easily have been established, if it existed, and yet no proof of it had been brought forward, everybody "must admit that the ministers of justice at least ought not officially to entertain" unsupported conjectures or assertions.

"The fact to be proved … is an act of public notoriety. It must exist in the view of the world, or it cannot exist at all… Months have elapsed since the fact did occur, if it ever occurred. More than five weeks have elapsed since the … supreme court has declared the necessity of proving the fact, if it exists. Why is it not proved?" It is, said Marshall, the duty of the Executive Department to prosecute crimes. "It would be easy" for the Government "to procure affidavits" that Burr had assembled troops five months ago. Certainly the court "ought not to believe that there had been any remissness" on the part of the Administration; and since no evidence had been presented that Burr had gathered soldiers, "the suspicion, which in the first instance might have been created, ought not to be continued, unless this want of proof can be in some manner accounted for."

Marshall would, therefore, commit Burr for high misdemeanor, but not for treason, and must, of consequence, admit the prisoner to bail. The Chief Justice suggested the sum of ten thousand dollars as being "about right."988 Hay protested that the amount was too small. Burr "is here among strangers," replied Wickham. He has fewer acquaintances in Richmond than anywhere in the country. To be sure, two humane men had saved the prisoner "from the horrors of the dungeon" when he arrived; but the first bail was only for two days, while the present bail was for an indefinite period. "Besides," asserted Wickham, "I have heard several gentlemen of great respectability, who did not doubt that colonel Burr would keep his recognisance, express an unwillingness to appear as bail for him, lest it might be supposed they were enemies to their country."989

Thus were cleverly brought into public and official view the conditions under which this trial, so vital to American liberty, was to be held. Burr was a "traitor," asserted Jefferson. "Burr a traitor!" echoed the general voice. That all who befriended Burr were, therefore, also "traitors at heart," was the conclusion of popular logic. Who dared brave the wrath of that blind and merciless god, Public Prejudice? From the very beginning the prosecution invoked the power of this avenging and remorseless deity, while the defense sought to break that despotic spell and arouse the spirit of opposition to the tyranny of it. These facts explain the legal strategy of the famous controversy – a controversy that continued throughout the sweltering months of the summer and far into the autumn of 1807.

Hay declared that he had been "well informed that Colonel Burr could give bail in the sum of one hundred thousand dollars." Gravely Burr answered that there was serious doubt whether bail in any sum could be procured; "gentlemen are unwilling to expose themselves to animadversions" which would be the result of their giving bail for him. He averred that he had no financial resources. "It is pretty well known that the government has ordered my property seized, and that the order has been executed." He had thus lost "upwards of forty thousand dollars," and his "credit had consequently been much impaired."990

Marshall, unmoved by the appeals of either side, fixed the bail at ten thousand dollars and adjourned court until three o'clock to enable Burr to procure sureties for that amount. At the appointed hour the prisoner came into court with five men of property who gave their bond for his appearance at the next term of the United States Circuit Court, to be held at Richmond on May 22.

For three precious weeks at least Aaron Burr was free. He made the best of his time, although he could do little more than perfect the plans for his defense. His adored Theodosia was in alternate rage and despair, and Burr strove to cheer and steady her as best he might. Some of "your letters," he writes, "indicate a sort of stupor"; in others "you rise into phrenzy." He bids her come "back to reason… Such things happen in all democratic governments." Consider the "vindictive and unrelenting persecution" of men of "virtue, … independence and … talents in Greece and Rome." Let Theodosia "amuse" herself by collecting instances of the kind and writing an essay on the subject "with reflections, comments and applications." The perusal of it, he says, will give him "great pleasure" if he gets it by the time court opens in May.991

Burr learned the names of those who were to compose the grand jury that was to investigate his misdeeds. Among them were "twenty democrats and four federalists," he informs his daughter. One of "the former is W. C. Nicholas my vindictive … personal enemy – the most so that could be found in this state. The most indefatigable industry is used by the agents of government, and they have money at command without stint. If I were possessed of the same means, I could not only foil the prosecutors, but render them ridiculous and infamous. The democratic papers teem with abuse of me and my counsel, and even against the chief justice. Nothing is left undone or unsaid which can tend to prejudice the public mind, and produce a conviction without evidence. The machinations of this description which were used against Moreau in France were treated in this country with indignation. They are practiced against me in a still more impudent degree, not only with impunity, but with applause; and the authors and abettors suppose, with reason, that they are acquiring favour with the administration."992

Every word of this was true. The Republican press blazed with denunciation of "the traitor." The people, who had been led to believe that the destruction of their "liberties" had been the object at which Burr ultimately aimed, were intent on the death of their would-be despoiler. Republican politicians were nervously apprehensive lest, through Marshall's application of the law, Burr might escape and the Administration and the entire Republican Party thereby be convicted of persecuting an innocent man. They feared, even more, the effect on their political fortunes of being made ridiculous.

Giles was characteristically alert to the danger. Soon after Marshall had declined to commit Burr for treason and had released him under bail to appear on the charge of misdemeanor only, the Republican leader of the Senate, then in Virginia, wrote Jefferson of the situation.

The preliminary hearing of Burr had, Giles stated, greatly excited the people of Virginia and probably would "have the same effect in all parts of the United States." He urged the President to take "all measures necessary for effecting … a full and fair judicial investigation." The enemies of the Administration had gone so far as to "suggest doubts" as to the "measures heretofore pursued in relation to Burr," and had dared to "intimate that the executive are not possessed of evidence to justify those measures" – or, if there was such evidence, that the prosecution had been "extremely delinquent in not producing it at the examination." Nay, more! "It is even said that General Wilkinson will not be ordered to attend the trial." That would never do; the absence of that militant patriot "would implicate the character of the administration, more than they can be apprised of."993

But Jefferson was sufficiently alarmed without any sounding of the tocsin by his Senatorial agent. "He had so frightened the country … that to escape being overwhelmed by ridicule, he must get his prisoner convicted of the fell designs which he had publically attributed to him."994 It is true that Jefferson did not believe Burr had committed treason;995 but he had formally declared to Congress and the country that Burr's "guilt is placed beyond question," and, at any cost, he must now make good that charge.996

From the moment that he received the news of Marshall's decision to hold Burr for misdemeanor and to accept bail upon that charge, the prosecution of his former associate became Jefferson's ruling thought and purpose. It occupied his mind even more than the Nation's foreign affairs, which were then in the most dangerous state.997 Champion though he was of equal rights for all men, yet any opposition to his personal or political desires or interests appeared to madden him.998 A personal antagonism, once formed, became with Thomas Jefferson a public policy.

He could see neither merit nor honesty in any act or word that appeared to him to favor Burr. Anybody who intimated doubt of his guilt did so, in Jefferson's opinion, for partisan or equally unworthy reasons. "The fact is that the Federalists make Burr's cause their own, and exert their whole influence to shield him," he asserted two days after Marshall had admitted Burr to bail.999 His hatred of the National Judiciary was rekindled if, indeed, its fires ever had died down. "It is unfortunate that federalism is still predominant in our judiciary department, which is consequently in opposition to the legislative & Executive branches & is able to baffle their measures often," he averred at the same time, and with reference to Marshall's rulings thus far in the Burr case.

He pours out his feelings with true Jeffersonian bitterness and passion in his answer to Giles's letter. No wonder, he writes, that "anxiety and doubt" had arisen "in the public mind in the present defective state of the proof." This tendency had "been sedulously encouraged by the tricks of the judges to force trials before it is possible to collect the evidence dispersed through a line of two thousand miles from Maine to Orleans."

The Federalists too were helping Burr! These miscreants were "mortified only that he did not separate the Union and overturn the government." The truth was, declares Jefferson, that the Federalists would have joined Burr in order to establish "their favorite monarchy" and rid themselves of "this hated republic," if only the traitor had had "a little dawn of success." Consider the inconsistent attitude of these Federalists. Their first "complaint was the supine inattention of the administration to a treason stalking through the land in the open light of day; the present one, that they [the Administration] have crushed it before it was ripe for execution, so that no overt acts can be proved."

Jefferson confides to Giles that the Government may not be able to establish the commission of overt acts; in fact, he says, "we do not know of a certainty yet what will be proved." But the Administration is already doing its very best: "We have set on foot an inquiry through the whole of the country which has been the scene of these transactions to be able to prove to the courts, if they will give time, or to the public by way of communication to Congress, what the real facts have been" – this three months after Jefferson had asserted, in his Special Message on the conspiracy, that Burr's "guilt is placed beyond question."

In this universal quest for "the facts," the Government had no help from the National courts, complains the President: "Aided by no process or facilities from Federal Courts,1000 but frowned on by their new-born zeal for the liberty of those whom we would not permit to overthrow the liberties of their country, we can expect no revealments from the accomplices of the chief offender." But witnesses would be produced who would "satisfy the world if not the judges" of Burr's treason. Jefferson enumerates the "overt acts" which the Administration expected to prove.1001

Marshall, of course, stood in the way, for it was plain that "the evidence cannot be collected under 4 months, probably 5." Jefferson had directed his Attorney-General, "unofficially," but "expressly," to "inform the Chief Justice of this." With what result? "Mr. Marshall says, 'more than 5 weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the overt acts if they exist. Why are they not proved?' In what terms of decency," growls Jefferson, "can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in 5 weeks, to do which has never taken less than twelve."