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

Nor was Jackson the only Republican who considered Jefferson as the contriving and energizing hand of the scheme to convict Burr. Almost riotous were the efforts to get into the hall where the trial was held, though it was situated on a steep hill and "the ascent to the building was painfully laborious."1035 Old and eminent lawyers of Richmond could not reach the bar of the court, so dense was the throng.

One youthful attorney, tall and powerful, "the most magnificent youth in Virginia," determined to witness the proceedings, shouldered his way within and "stood on the massive lock of the great door" of the chamber.1036 Thus Winfield Scott got his first view of that striking scene, and beheld the man whose plans to invade Mexico he himself, more than a generation afterward, was to carry out as Commander of the American Army. Scott, there and then, arrived at conclusions which a lifetime of thought and experiences confirmed. "It was President Jefferson who directed and animated the prosecution," he declares in his "Memoirs." Scott records the political alignment that resulted: "Hence every Republican clamored for execution. Of course, the Federalists … compacted themselves on the other side."1037

Of all within the Hall of Delegates, and, indeed, among the thousands then in Richmond, only two persons appeared to be perfectly at ease. One of them was John Marshall, the other was Aaron Burr. Winfield Scott tells us of the manner of the imperiled man as he appeared in court on that sultry midday of May: "There he stood, in the hands of power, on the brink of danger, as composed, as immovable, as one of Canova's living marbles." But, says Scott, "Marshall was the master spirit of the scene."1038

Gathered about Burr were four of his counsel, the fifth and most powerful of his defenders, Luther Martin, not yet having arrived. The now elderly Edmund Randolph, bearing himself with "overawing dignity"; John Wickham, whose commanding presence corresponded well with his distinguished talents and extensive learning; Benjamin Botts, a very young lawyer, but of conceded ability and noted for a courage, physical and moral, that nothing could shake; and another young attorney, John Baker, a cripple, as well known for his wit as Botts for his fearlessness – this was the group of men that appeared for the defense.

For the prosecution came Jefferson's United States District Attorney, George Hay – eager, nervous, and not supremely equipped either in mind or attainments; William Wirt – as handsome and attractive as he was eloquent and accomplished, his extreme dissipation1039 now abandoned, and who, by his brilliant gifts of intellect and character, was beginning to lay the solid foundations of his notable career; and Alexander MacRae, then Lieutenant-Governor of Virginia – a sour-tempered, aggressive, well-informed, and alert old Scotchman, pitiless in his use of sarcasm, caring not the least whom he offended if he thought that his affronts might help the cause for which he fought. David Robertson, the stenographer who reported the trial, was a scholar speaking five or six languages.1040

With all these men Marshall was intimately acquainted, and he was well assured that, in making up his mind in any question which arose, he would have that assistance upon which he so much relied – exhaustive argument and complete exposition of all the learning on the subject to be decided.

Marshall was liked and admired by the lawyers on both sides, except George Hay, who took Jefferson's view of the Chief Justice. Indeed, the ardent young Republican District Attorney passionately espoused any opinion the President expressed. The whole bar understood the strength and limitations of the Chief Justice, the power of his intellect no less than his unfamiliarity with precedents and the learning of the law. From these circumstances, and from Marshall's political wisdom in giving the lawyers a free hand, resulted a series of forensic encounters seldom witnessed or even tolerated in a court of justice.

The first step in the proceedings was the examination by the grand jury of the Government's witnesses, and its return, or refusal to return, bills of indictment against Burr. When the clerk had called the names of those summoned on the grand jury, Burr arose and addressed the court. Clad in black silk, hair powdered and queue tied in perfect fashion, the extreme pallor of his face in striking contrast to his large black eyes, he made a rare picture of elegance and distinction in the uncouth surroundings of that democratic assemblage.

The accused man spoke with a quiet dignity and an "impressive distinctness" which, throughout the trial, so wrought upon the minds of the auditors that, fifty years afterward, some of those who heard him could repeat sentences spoken by him.1041 Burr now objected to the panel of the grand jury. The law, he said, required the marshal to summon twenty-four freeholders; if any of these had been struck off and others summoned, the act was illegal, and he demanded to know whether this had been done.1042

For an hour or more the opposing counsel wrangled over this point. Randolph hints at the strategy of the defense: "There never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold." Marshall sustained Burr's exception: undoubtedly the marshal had acted "with the most scrupulous regard to what he believed to be the law," but, if he had changed the original panel, he had transcended his authority.1043 It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.1044

"With regret," Burr demanded the right to challenge the remainder of the grand jury "for favour."1045 Hay conceded the point, and Burr challenged Senator William Branch Giles. Merely upon the documents in Jefferson's Special Message to Congress, Giles had advocated that the writ of habeas corpus be suspended, and this, argued Burr, he could have done only if he supposed "that there was a rebellion or insurrection, and a public danger, of no common kind." This action of Giles was a matter of record; moreover, he had publicly made statements to the same effect.1046

Senator Giles admitted that he had acted and spoken as Burr charged; and while denying that he held any "personal resentments against the accused," and asserting that he could act fairly as a grand juror, he graciously offered to withdraw. Marshall mildly observed that "if any gentleman has made up and declared his mind, it would be best for him to withdraw." With superb courtesy, Burr disavowed any reflection on Giles; it was merely above "human nature" that he should not be prejudiced. "So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends."

Burr then challenged Colonel Wilson Cary Nicholas,1047 who spiritedly demanded the objections to him. Nicholas "entertained a bitterly personal animosity" against him, replied Burr. He would not, however, insist upon "further inquiry" if Nicholas would withdraw as Giles had done. Nicholas then addressed the court. He had been a member of the National House, he said, "when the attempt was made to elect colonel Burr president," and everybody knew how he felt about that incident. He had been in the Senate for three years "while colonel Burr was president of that body," and had done all he could to nominate Clinton in Burr's stead.

His suspicions had been "very much excited" when Burr made his Western journey, and he had openly stated his "uncommon anxiety" concerning "not only the prosperity, but the union of the states." Therefore, he had not desired to serve on the grand jury and had asked the marshal to excuse him. He had finally consented solely from his delicate sense of public duty. Also, said Nicholas, he had been threatened with the publication of one of the "most severe pieces" against him if he served on the grand jury; and this inclined him to "defy [his] enemies [rather] than to ask their mercy or forbearance."

His friends had advised him not to make mention of this incident in court; but, although he was "not scrupulous of acquiring, in this way, a reputation of scrupulous delicacy," and had determined to heed the counsel of his friends, still, he now found himself so confused that he did not know just what he ought to do. On the whole, however, he thought he would follow the example of Senator Giles and withdraw.1048

At that very moment, Nicholas was a Republican candidate for Congress and, next to Giles, Jefferson's principal political agent in Virginia. Four days after Burr had been brought to Richmond, Jefferson had written Nicholas a letter of fulsome flattery "beseeching" him to return to the National House in the place of the President's son-in-law, Thomas Mann Randolph, who had determined to retire, and assuring him of the Republican leadership if he would do so.1049

Thus, for a moment, was revealed a thread of that web of intrigue and indirect influence which, throughout the trial, was woven to enmesh judge, jury, and public. Burr was instantly upon his feet denouncing in his quiet but authoritative manner the "attempt to intimidate" Nicholas as "a contrivance of some of [his] enemies for the purpose of irritating" the hot-blooded Republican politician "and increasing the public prejudice against [Burr]; since it was calculated to throw suspicion on [his] cause." Neither he nor his friends had ever "sanctioned" such an act; they were wholly ignorant of it, and viewed it "with indignation."1050

Mr. Joseph Eggleston, another of the grand jurors, now asked to be excused because he had declared his belief of Burr's guilt; but he admitted, in answer to Marshall's questions, that he could act justly in the impending investigation. Burr said that he would not object to Eggleston: "the industry which has been used through this country [Virginia] to prejudice my cause, leaves me very little chance, indeed, of an impartial jury." Eggleston's "candour … in excepting to himself" caused Burr to hope that he would "endeavour to be impartial." But let Marshall decide – Burr would be "perfectly passive."1051 The scrupulous grand juror was retained.

John Randolph and Dr. William Foushee were then added to the grand jury panel and Marshall appointed Randolph foreman.1052 He promptly asked to be excused because of his "strong prepossession." "Really," observed Burr, "I am afraid we shall not be able to find any man without this prepossession." Marshall again stated "that a man must not only have formed but declared an opinion in order to excuse him from serving on the jury." So Randolph was sworn as foreman, the oath administered to all, and at last the grand jury was formed.1053

Marshall then instructed the jury, the substance of his charge being to the same effect as his opinion in the case of Bollmann and Swartwout. Burr asked the Chief Justice also to advise the men who were to decide the question of his indictment "as to the admissability of certain evidence" which he supposed Hay would lay before them. The District Attorney objected to any favor being shown Burr, "who," he declared, "stood on the same footing with every other man charged with crime."

For once Burr unleashed his deep but sternly repressed feeling: "Would to God," he cried, his voice vibrant with emotion, "that I did stand on the same ground with every other man. This is the first time [since the military seizure] that I have been permitted to enjoy the rights of a citizen. How have I been brought hither?" Marshall checked this passionate outburst: it was not proper, he admonished both Hay and Burr, to "go into these digressions."

His composure restored, Burr insisted that he should be accorded "the same privileges and rights which belonged to every other citizen." He would not now urge his objections to Marshall's opinion in the Bollmann-Swartwout case;1054 but he pointed out "the best informed juryman might be ignorant of many points … relating to testimony, … for instance, as to the article of papers," and he wished Marshall to inform the jury on these matters of law.

A brief, sharp debate sprang up, during which Burr's counsel spoke of the "host of prejudices raised against [their] client," taunted Hay with his admission "that there was no man who had not formed an opinion," and denounced "the activity of the Government."1055 Upon Hay's pledging himself that he would submit no testimony to the grand jury "without notice being first given to Colonel Burr and his counsel," Marshall adjourned the court that the attorneys might prepare for "further discussion." The Government was not ready to present any testimony on either the following day or on Monday because its principal witness, General Wilkinson, had not arrived.

Hay now sent Jefferson his first report of the progress of the case. Burr had steadily been making friends, and this irritated the District Attorney more than the legal difficulties before him. "I am surprised, and afflicted, when I see how much, and by how many, this man has been patronised and supported." Hay assured Jefferson, however, that he would "this day move to commit him for treason."1056 Accordingly, he announced in the presence of the grand jury that he would again ask the court to imprison Burr on that accusation. In order, he said, that the impropriety of mentioning the subject in their presence might be made plain, Burr moved that the grand jury be withdrawn. Marshall sustained the motion; and after the grand jury had retired, Hay formally moved the court to order Burr's incarceration upon the charge of treason.1057

Burr's counsel, surprised and angered, loudly complained that no notice had been given them. With a great show of generosity, Hay offered to delay his motion until the next day. "Not a moment's postponement," shouted Botts, his fighting nature thoroughly aroused. Hay's "extraordinary application," he said, was to place upon the court the functions of the grand jury. Burr wanted no delay. His dearest wish was to "satisfy his country … and even his prosecutors, that he is innocent." Was ever a man so pursued? He had been made the victim of unparalleled military despotism; his legal rights had been ignored; his person and papers unlawfully seized. The public had been excited to anger. Through newspaper threats and "popular clamor" attempts had been made to intimidate every officer of the court. Consider "the multitude around us" – they must not be further infected "with the poison already too plentifully infused."

Did Hay mean to "open the case more fully?" inquired Marshall. No, answered Hay; but Wilkinson's arrival in Virginia might be announced before he reached Richmond. Who could tell the effect on Burr of such dread tidings? The culprit might escape; he must be safely held.1058 "The bets were against Burr that he would abscond, should W. come to Richmond."1059

If Wilkinson is so important a witness, "why is he not here?" demanded Wickham. Everybody knew that "a set of busy people … are laboring to ruin" Burr. "The press, from one end of the continent to the other, has been enlisted … to excite prejudices" against him. Let the case be decided upon "the evidence of sworn witnesses" instead of "the floating rumours of the day."

Did the Government's counsel wish that "the multitude around us should be prejudiced by garbled evidences?" Wickham avowed that he could not understand Hay's motives, but of this he was sure – that if, thereafter, the Government wished to oppress any citizen, drag him by military force over the country, prejudice the people against him, it would "pursue the very same course which has now been taken against colonel Burr." The prosecution admitted that it had not enough evidence to lay before the grand jury, yet they asked to parade what they had before the court. Why? – "to nourish and keep alive" the old prejudices now growing stale.1060

Wirt answered at great length. He understood Wickham's purpose, he said. It was to "divert the public attention from Aaron Burr," and "shift the popular displeasure … to another quarter." Wickham's speech was not meant for the court, exclaimed Wirt, but for "the people who surround us," and so, of course, Marshall would not heed it. Burr's counsel "would convert this judicial inquiry into a political question … between Thomas Jefferson and Aaron Burr."

Not to be outdone by his gifted associate, Hay poured forth a stream of words: "Why does he [Burr] turn from defending himself to attack the administration?" he asked. He did not answer his own question, but Edmund Randolph did: "An order has been given to treat colonel Burr as an outlaw, and to burn and destroy him and his property." Jefferson, when requested, had furnished the House information; – "would to God he had stopped here, as an executive officer ought to have done!" But instead he had also pronounced Burr guilty – an opinion calculated to affect courts, juries, the people. Wickham detailed the treatment of Burr, "the only man in the nation whose rights are not secure from violation."1061

Burr himself closed this unexpected debate, so suddenly thrust upon his counsel and himself. His speech is a model of that simple, perspicuous, and condensed statement of which he was so perfectly the master. He presented the law, and then, turning to Hay, said that two months previous the District Attorney had declared that he had enough evidence to justify the commitment, and surely he must have it now. Nearly half a year had elapsed since Jefferson had "declared that there was a crime," and yet, even now, the Government was not ready. Nevertheless, the court was again asked to imprison him for an alleged offense for which the prosecution admitted it had not so much as the slight evidence required to secure his indictment by the grand jury.

Were the Government and he "on equal terms?" Far from it. "The United States [could] have compulsory process" to obtain affidavits against him but he had "no such advantage." So the prosecution demanded his imprisonment on ex parte evidence which would be contradicted by his own evidence if he could adduce it. Worse still! The Government affidavits against him "are put into the newspapers, and they fall into the hands of the grand jury." Meanwhile, he was helpless. And now the opinion of the court was also to be added to the forces working to undo him.

Wirt and Hay had charged his counsel "with declamation against the government." Certainly nobody could attribute "declamation" to him; but, said Burr, his restrained voice tense with suppressed emotion, "no government is so high as to be beyond the reach of criticism" – that was a fundamental principle of liberty. This was especially true when the Government prosecuted a citizen, because of "the vast disproportion of means which exists between it and the accused." And "if ever there was a case which justified this vigilance, it is certainly the present one"; let Marshall consider the "uncommon activity" of the Administration.

Burr would, he said, "merely state a few" of the instances of "harrassing, … contrary to law" to which he had been subjected. His "friends had been every where seized by the military authority," dragged before "particular tribunals," and forced to give testimony; his papers taken; orders to kill him issued; post-offices broken open and robbed – "nothing seemed too extravagant to be forgiven by the amiable morality of this government." Yet it was for milder conduct that Americans rightly condemned "European despotisms."

The President was a great lawyer; surely "he ought to know what constitutes war. Six months ago he proclaimed that there was a civil war. And yet, for six months they have been hunting for it and cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but no where else." He had been haled before the court in Kentucky – and no proof; in Mississippi – and no proof. The Spaniards actually invaded American territory – even then there was no war.

Thus early the record itself discloses the dramatic, and, for Marshall, perilous, conditions under which this peculiar trial was to be conducted. The record makes clear, also, the plan of defense which Burr and his counsel were forced to adopt. They must dull the edge of public opinion sharpened to a biting keenness by Jefferson. They must appeal to the people's hatred of oppression, fear of military rule, love of justice. To do this they must attack, attack, always attack.

They must also utilize every technical weapon of the law. At another time and place they could have waived, to Burr's advantage, all legal rights, insisted upon his indictment, and gone to trial, relying only upon the evidence. But not in the Virginia of 1807, with the mob spirit striving to overawe jury and court, and ready to break out in violent action – not at the moment when the reign of Thomas Jefferson had reached the highest degree of popular idolatry.

Just as Hay, Wirt, and MacRae generally spoke to the spectators far more than to the Bench, so did Wickham, Randolph, Botts, and Martin.1062 Both sides so addressed the audience that their hearers were able to repeat to the thousands who could not get into the hall what had been said by the advocates. From the very first the celebrated trial of Aaron Burr was a contest for the momentary favor of public opinion; and, in addition, on the part of Burr, an invoking of the law to shield him from that popular wrath which the best efforts of his defenders could not wholly appease.

Marshall faced a problem of uncommon difficulty. It was no small matter to come between the populace and its prey – no light adventure to brave the vengeance of Thomas Jefferson. Not only his public repute1063– perhaps even his personal safety1064 and his official life1065– but also the now increasing influence and prestige of the National Judiciary were in peril. However, he must do justice no matter what befell – he must, at all hazards, pronounce the law truly and enforce it bravely, but with elastic method. He must be not only a just, but also an understanding, judge.

When court opened next morning, Marshall was ready with a written opinion. Concisely he stated the questions to be decided: Had the court the power to commit Burr, and, if so, ought the circumstances to restrain the exercise of it? Neither side had made the first point, and Marshall mentioned it only "to show that it [had] been considered." Briefly he demonstrated that the court was clothed with authority to grant Hay's motion. Should that power, then, be exerted? Marshall thought that it should. The Government had the right to ask Burr's incarceration at any time, and it was the duty of the court to hear such a motion.

Thus far spoke Marshall the judge. In the closing sentences the voice of the politician was heard: "The court perceives and regrets that the result of this motion may be publications unfavourable to the justice, and to the right decision of the case"; but this must be remedied "by other means than by refusing to hear the motion." Every honest and intelligent man extremely deplored "any attempt … to prejudice the public judgment, and to try any person," not by the law and the evidence, but "by public feelings which may be and often are artificially excited against the innocent, as well as the guilty, … a practice not less dangerous than it is criminal." Nevertheless he could not "suppress motions, which either party may have a legal right to make." So, if Hay persisted, he might "open his testimony."1066

While Marshall, in Richmond, was reading this opinion, Jefferson, in Washington, was writing directions to Hay. He was furious at "the criminal and voluntary retirement" of Giles and Nicholas from the grand jury "with the permission of the court." The opening of the prosecution had certainly begun "under very inauspicious circumstances." One thing was clear: "It becomes our duty to provide that full testimony shall be laid before the Legislature, and through them the public."

If the grand jury should indict Burr, then Hay must furnish Jefferson with all the evidence, "taken as verbatim as possible." Should Burr not be indicted, and no trial held and no witnesses questioned in court, then Hay must "have every man privately examined by way of affidavit," and send Jefferson "the whole testimony" in that form. "This should be done before they receive their compensation, that they may not evade examination. Go into any expense necessary for this purpose,1067 & meet it from the funds provided to the Attorney general for the other expenses."1068