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

Marshall's decision perplexed Hay. It interfered with his campaign of publicity. If only Marshall had denied his motion, how effectively could that incident have been used on public sentiment! But now the Republican press could not exclaim against Marshall's "leniency" to "traitors" as it had done. The people were deprived of fresh fuel for their patriotic indignation. Jefferson would be at a loss for a new pretext to arouse them against the encroachments of the courts upon their "liberties."

Hay strove to retrieve the Government from this disheartening situation. He was "struck," he said, with Marshall's reference to "publications." To avoid such newspaper notoriety, he would try to arrange with Burr's counsel for the prisoner's appearance under additional bail, thus avoiding insistence upon the Government's request for the imprisonment of the accused. Would Marshall adjourn court that this amicable arrangement might be brought about? Marshall would and did.

But next day found Hay unrelieved; Burr's counsel had refused, in writing, to furnish a single dollar of additional bail. To his intense regret, Hay lamented that he was thus forced to examine his witnesses. Driven to this unpleasant duty, he would follow the "chronological order – first the depositions of the witnesses who were absent, and afterwards those who were present."1069

The alert Wickham demanded "strict legal order." The Government must establish two points: the perpetration of an overt act, and "that colonel Burr was concerned in it."1070 Hay floundered – there was one great plot, he said, the two parts of it "intimately blended"; the projected attack on Spain and the plot to divide the Union were inseparable – he must have a free hand if he were to prove this wedded iniquity. Was Burr afraid to trust the court?

Far from it, cried Wickham, "but we do fear to prejudicate the mind of the grand jury… All propriety and decorum have been set at naught; every idle tale which is set afloat has been eagerly caught at. The people here are interested by them; and they circulate all over the country."1071 Marshall interrupted: "No evidence certainly has any bearing … unless the overt act be proved." Hay might, however, "pursue his own course."

A long altercation followed. Botts made an extended speech, in the course of which he discredited the Government's witnesses before they were introduced. They were from all over the country, he said, their "names, faces and characters, are alike unknown to colonel Burr." To what were they to testify? Burr did not know – could not possibly ascertain. "His character has long been upon public torture; and wherever that happens … the impulses to false testimony are numerous. Sometimes men emerge from the sinks of vice and obscurity into patronage and distinction by circulating interesting tales, as all those of the marvelous kind are. Others, from expectation of office and reward, volunteer; while timidity, in a third class, seeks to guard against the apprehended danger, by magnifying trifling stories of alarm… When they are afterwards called to give testimony, perjury will not appal them, if it be necessary to save their reputations." Therefore, reasoned Botts – and most justly – strict rules of evidence were necessary.1072

Hay insisted that Wilkinson's affidavit demonstrated Burr's intentions. That "goes for nothing," said Marshall, "if there was no other evidence to prove the overt act." Therefore, "no part of it [was] admissible at this time."1073 Thrice Marshall patiently reminded Government counsel that they charged an overt act of treason and must prove it.1074

Hay called Peter Taylor, Blennerhassett's former gardener, and Jacob Allbright, once a laborer on the eccentric Irishman's now famous island. Both were illiterate and in utter terror of the Government. Allbright was a Dutchman who spoke English poorly; Taylor was an Englishman; and they told stories equally fantastic. Taylor related that Mrs. Blennerhassett had sent him to Kentucky with a letter to Burr warning him not to return to the island; that Burr was surprised at the people's hostility; that Blennerhassett, who was also in Kentucky, confided they were going to take Mexico and make Burr king, and Theodosia queen when her father died; also that Burr, Blennerhassett, and their friends had bought "eight hundred thousand acres of land" and "wanted young men to settle it," and that any of these who should prove refractory, he [Blennerhassett] said, "by God, … I will stab"; that Blennerhassett had also said it would be a fine thing to divide the Union, but Burr and himself could not do it alone.

Taylor further testified that Blennerhassett once sent him with a letter to a Dr. Bennett, who lived in Ohio, proposing to buy arms in his charge belonging to the United States – if Bennett could not sell, he was to tell where they were, and Blennerhassett "would steal them away in the night"; that his employer charged him "to get [the letter] back and burn it, for it contained high treason"; and that the faithful Taylor had done this in Bennett's presence.

Taylor narrated the scene on the island when Blennerhassett and thirty men in four boats fled in the night: some of the men had guns and there was some powder and lead.1075

Jacob Allbright told a tale still more marvelous. Soon after his employment, Mrs. Blennerhassett had come to this dull and ignorant laborer, while he was working on a kiln for drying corn, and confided to him that Burr and her husband "were going to lay in provisions for an army for a year"; that Blennerhassett himself had asked Allbright to join the expedition which was going "to settle a new country." Two men whom the Dutch laborer met in the woods hunting had revealed to him that they were "Burr's men," and had disclosed that "they were going to take a silver mine from the Spanish"; that when the party was ready to leave the island, General Tupper of Ohio had "laid his hands upon Blennerhassett and said, 'your body is in my hands in the name of the commonwealth,'" whereupon "seven or eight muskets [were] levelled" at the General; that Tupper then observed he hoped they would not shoot, and one of the desperadoes replied, "I'd as lieve as not"; and that Tupper then "changed his speech," wished them "to escape safe," and bade them Godspeed.

Allbright and Taylor were two of the hundreds to whom the Government's printed questions had been previously put by agents of the Administration. In his answers to these, Allbright had said that the muskets were pointed at Tupper as a joke.1076 Both Taylor and he swore that Burr was not on the island when Blennerhassett's men assembled there and stealthily departed in hasty flight.

To the reading of the deposition of Jacob Dunbaugh, Burr's counsel strenuously objected. It was not shown that Dunbaugh himself could not be produced; the certification of the justice of the peace, before whom the deposition was taken, was defective. For the remainder of the day the opposing lawyers wrangled over these points. Marshall adjourned court and "took time to consider the subject till the next day"; when, in a long and painfully technical opinion, he ruled that Dunbaugh's affidavit could not be admitted because it was not properly authenticated.1077

LUTHER MARTIN

May 28, when the court again convened, was made notable by an event other than the reading of the unnecessarily long opinion which Marshall had written during the night: the crimson-faced, bellicose superman of the law, Luther Martin, appeared as one of Burr's counsel.1078 The great lawyer had formed an ardent admiration and warm friendship for Burr during the trial of the Chase impeachment,1079 and this had been intensified when he met Theodosia, with whom he became infatuated.1080 He had voluntarily come to his friend's assistance, and soon threw himself into the defense of Burr with all the passion of his tempestuous nature and all the power and learning of his phenomenal intellect.

After vexatious contendings by counsel as to whether Burr should give additional bail,1081 Marshall declared that "as very improper effects on the public mind [might] be produced," he wished that no opinion would be required of him previous to the action of the grand jury; and that the "appearance of colonel Burr could be secured without … proceeding in this inquiry." Burr denied the right of the court to hold him on bail, but said that if Marshall was "embarrassed," he voluntarily would furnish additional bail, "provided it should be understood that no opinion on the question even of probable cause was pronounced by the court."1082 Marshall agreed; and Burr with four sureties, among whom was Luther Martin, gave bond for ten thousand dollars more.1083

Day after day, court, grand jury, counsel, and spectators awaited the coming of Wilkinson. The Government refused to present any testimony to the grand jury until he arrived, although scores of witnesses were present. Andrew Jackson was very much in town, as we have seen. So was Commodore Truxtun. And "General" William Eaton was also on hand, spending his time, when court was not in session, in the bar-rooms of Richmond.

Wearing a "tremendous hat," clad in gay colored coat and trousers, with a flaming Turkish belt around his waist, Eaton was already beginning to weaken the local hatred of Burr by his loud blustering against the quiet, courteous, dignified prisoner.1084 Also, at gambling-tables, and by bets that Burr would be convicted, the African hero was making free with the ten thousand dollars paid him by the Government soon after he made the bloodcurdling affidavit1085 with which Jefferson had so startled Congress and the country.

While proceedings lagged, Marshall enjoyed the dinners and parties that, more than ever, were given by Richmond society. On one of these occasions that eminent and ardent Republican jurist, St. George Tucker, was present, and between him and Marshall an animated discussion grew out of the charge that Burr had plotted to cause the secession of the Western States; it was a forecast of the tremendous debate that was to end only at Appomattox. "Judge Tucker, though a violent Democrat," records Blennerhassett, "seriously contended … with Judge Marshall … that any State in the Union is at any time competent to recede from the same, though Marshall strongly opposed this doctrine."1086

Hay wrote Jefferson of the slow progress of the case, and the President "hastened" to instruct his district attorney: If the grand jury should refuse to indict Burr, Hay must not deliver the pardon to Bollmann; otherwise, "his evidence is deemed entirely essential, & … his pardon is to be produced before he goes to the book." Jefferson had become more severe as he thought of Bollmann, and now actually directed Hay to show, in open court, to this new object of Presidential displeasure, the "sacredly confidential" statement given Jefferson under pledge of the latter's "word of honor" that it should never leave his hand. Hay was directed to ask Bollmann whether "it was not his handwriting."1087

With the same ink on his pen the President wrote his son-in-law that he had heard only of the first day of the trial, but was convinced that Marshall meant to do all he could for Burr. Marshall's partiality showed, insisted Jefferson, "the original error of establishing a judiciary independent of the nation, and which, from the citadel of the law can turn it's guns on those they were meant to defend, & controul & fashion their proceedings to it's own will."1088

Hay quickly answered Jefferson: The trial had "indeed commenced under inauspicious circumstances," and doubtless these would continue to be unfavorable. Nobody could predict the outcome. Hay was so exhausted and in such a state of mind that he could not describe "the very extraordinary occurrences in this very extraordinary examination." Burr's "partizans" were gloating over the failure of Wilkinson to arrive. Bollmann would neither accept nor reject the pardon; he was "as unprincipled as his leader." Marshall's refusal to admit Dunbaugh's affidavit was plainly illegal – "his eyes [were] almost closed" to justice.1089

Jefferson now showered Hay with orders. The reference in argument to Marshall's opinion in Marbury vs. Madison greatly angered him: "Stop … citing that case as authority, and have it denied to be law," he directed Hay, and gave him the arguments to be used against it. An entire letter is devoted to this one subject: "I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention."

Hay was openly to declare that the President rejected Marshall's opinion in that case as having been "given extra-judicially & against law," and that the reverse of it would be Jefferson's "rule of action." If necessary, Hay might state that the President himself had said this.1090

Back and forth went letters from Hay to Jefferson and from Jefferson to Hay,1091 the one asking for instructions and the other eagerly supplying them. To others, however, the President explained that he could take no part in any judicial proceeding, since to do so would subject him to "just censure."1092

In spite of the abundance of Government witnesses available, the prosecution refused to go on until the redoubtable savior of his country had arrived from New Orleans. Twice the grand jury had to be dismissed for several days, in order, merrily wrote Washington Irving, "that they might go home, see their wives, get their clothes washed, and flog their negroes."1093 A crowd of men ready to testify was held. The swarms of spectators waited with angry impatience. "If the great hero of the South does not arrive, it is a chance if we have any trial this term,"1094 commented Irving.

During this period of inaction and suspense, suddenly arose one of the most important and exciting questions of the entire trial. On June 9, while counsel and court were aimlessly discussing Wilkinson's journey to Richmond, Burr arose and said that he had a "proposition to submit" to the court. The President in his Message to Congress had made mention of the letter and other papers dated October 21, which he had received from Wilkinson. It had now become material that this letter should be produced in court.

Moreover, since the Government had "attempted to infer certain intentions on [his] part, from certain transactions," such as his flight from Mississippi, it had become necessary to prove the conditions that forced him to attempt that escape. Vital among these were orders of the Government to the army and navy "to destroy" Burr's "person and property." He had seen these orders in print,1095 and an officer had assured him that such instructions had actually been issued. It was indispensable that this be established. The Secretary of the Navy had refused to allow him or his counsel to inspect these orders. "Hence," maintained Burr, "I feel it necessary … to call upon [the court] to issue a subpœna to the President of the United States, with a clause, requiring him to produce certain papers; or in other words, to issue the subpœna duces tecum." If Hay would agree to produce these documents, the motion would not be made.1096

Hay was sadly confused. He would try to get all the papers wanted if Marshall would say that they were material. How, asked Marshall, could the court decide that question without inspecting the papers? "Why … issue a subpœna to the President?" inquired Hay. Because, responded Marshall, "in case of a refusal to send the papers, the officer himself may be present to show cause. This subpœna is issued only where fears of this sort are entertained."

Counsel on both sides became angry. Hay denied the authority of the court to issue such a writ. Marshall called for argument, because, he said, "I am not prepared to give an opinion on this point."1097 Thus arose the bitter forensic struggle that preceded Marshall's historic order to Jefferson to come into court with the papers demanded, or to show cause why he should not do so.

Hay instantly dispatched the news to Jefferson; he hoped the papers would be "forwarded without delay," because "detention of them will afford [Burr] pretext for clamor." Besides, "L. Martin has been here a long time, perfectly inactive"; he was yearning to attack Jefferson and this would "furnish a topic."1098

The President responded with dignified caution: "Reserving the necessary right of the President of the U S to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom, I assure you of my readiness under that restriction, voluntarily to furnish on all occasions, whatever the purposes of justice may require." He had given the Wilkinson letter, he said, to the Attorney-General, together with all other documents relating to Burr, and had directed the Secretary of War to search the files so that he (Jefferson) could "judge what can & ought to be done" about sending any order of the Department to Richmond.1099

When Marshall opened court on June 10, Burr made affidavit that the letters and orders might be material to his defense. Hay announced that he had written Jefferson to send the desired papers and expected to receive them within five days. They could not, however, be material, and he did not wish to discuss them. Martin insisted that the papers be produced. Wickham asked what Hay was trying to do – probably trying to gain time to send to Washington for instructions as to how the prosecution should now act.

Was not "an accused man … to obtain witnesses in his behalf?" Never had the denial of such a right been heard of "since the declaration of American Independence." The despotic treatment of Burr called aloud not only for the court's protection of the persecuted man, but "to the protection of every citizen in the country as well."1100 So it seemed to that discerning fledgling author, Washington Irving. "I am very much mistaken," he wrote, "if the most underhand … measures have not been observed toward him. He, however, retains his serenity."1101

Luther Martin now took the lead: Was Jefferson "a kind of sovereign?" No! "He is no more than a servant of the people." Yet who could tell what he would do? In this case his Cabinet members, "under presidential influence," had refused copies of official orders. In another case "the officers of the government screened themselves … under the sanction of the president's name."1102 The same might be done again; for this reason Burr applied "directly to the president." The choleric legal giant from Maryland could no longer restrain his wrath: "This is a peculiar case," he shouted. "The president has undertaken to prejudice my client by declaring, that 'of his guilt there can be 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 that 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?" That was a denial of "a sacred principle. Whoever withholds, wilfully, information that would save the life of a person, charged with a capital offence, is substantially a murderer, and so recorded in the register of heaven." Did Jefferson want Burr convicted? Impossible thought! "Would the president of the United States give his enemies … the proud opportunity of saying that colonel Burr is the victim of anger, jealousy and hatred?" Interspersed with these outbursts of vitriolic eloquence, Martin cited legal authorities. Never, since the days of Patrick Henry, had Richmond heard such a defiance of power.1103

Alexander MacRae did his best to break the force of Martin's impetuous attack. The present question was "whether this court has the right to issue a subpœna duces tecum, addressed to the president of the United States." MacRae admitted that "a subpœna may issue against him as well as against any other man." Still, the President was not bound to disclose "confidential communications." Had not Marshall himself so ruled on that point in the matter of Attorney-General Lincoln at the hearing in Marbury vs. Madison?1104

Botts came into the fray with his keen-edged sarcasm. Hay and Wirt and MacRae had "reprobated" the action of Chase when, in the trial of Cooper, that judge had refused to issue the writ now asked for; yet now they relied on that very precedent. "I congratulate them upon their dereliction of the old democratic opinions."1105

Wirt argued long and brilliantly. What were the "orders," military and naval, which had been described so thrillingly? Merely to "apprehend Aaron Burr, and if … necessary … to destroy his boats." Even the "sanguinary and despotic" orders depicted by Burr and his counsel would have been a "great and glorious virtue" if Burr "was aiming a blow at the vitals of our government and liberty." Martin's "fervid language" had not been inspired merely by devotion to "his honourable friend," said Wirt. It was the continued pursuit of a "policy settled … before Mr. Martin came to Richmond." Burr's counsel, on the slightest pretext, "flew off at a tangent … to launch into declamations against the government, exhibiting the prisoner continually as a persecuted patriot: a Russell or a Sidney, bleeding under the scourge of a despot, and dying for virtue's sake!"

He wished to know "what gentlemen can intend, expect, or hope, from these perpetual philippics against the government? Do they flatter themselves that this court feel political prejudices which will supply the place of argument and of innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort." What would a foreigner "infer from hearing … the judiciary told that the administration are 'blood hounds,' hunting this man with a keen and savage thirst for blood," and witnessing the court receive this language "with all complacency?" Surely no conclusion could be made very "honourable to the court. It would only be inferred, while they are thus suffered to roll and luxuriate in these gross invectives against the administration, that they are furnishing the joys of a Mahomitan paradise to the court as well as to their client."1106

Here was as bold a challenge to Marshall as ever Erskine flung in the face of judicial arrogance; and it had effect. Before adjourning court, Marshall addressed counsel and auditors: he had not interfered with assertions of counsel, made "in the heat of debate," although he had not approved of them. But now that Wirt had made "a pointed appeal" to the court, and the Judges "had been called upon to support their own dignity, by preventing the government from being abused," he would express his opinion. "Gentlemen on both sides had acted improperly in the style and spirit of their remarks; they had been to blame in endeavoring to excite the prejudices of the people; and had repeatedly accused each other of doing what they forget they have done themselves." Marshall therefore "expressed a wish that counsel … would confine themselves on every occasion to the point really before the court; that their own good sense and regard for their characters required them to follow such a course." He "hoped that they would not hereafter deviate from it."1107

His gentle admonition was scarcely heeded by the enraged lawyers. Wickham's very "tone of voice," exclaimed Hay, was "calculated to excite irritation, and intended for the multitude." Of course, Jefferson could be subpœnaed as a witness; that was in the discretion of the court. But Marshall ought not to grant the writ unless justice required it. The letter might be "of a private nature"; if so, it ought not to be produced. Martin's statement that Burr had a right to resist was a "monstrous … doctrine which would have been abhorred even in the most turbulent period of the French revolution, by the jacobins of 1794!"

Suppose, said Hay, that Jefferson had been "misled," and that "Burr was peaceably engaged in the project of settling his Washita lands!" Did that give him "a right to resist the president's orders to stop him?" Never! "This would be treason." The assertion of the right to disobey the President was the offspring of "a new-born zeal of some of the gentlemen, in defence of the rights of man."1108