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

Why await the arrival of Wilkinson? asked Edmund Randolph. What was expected of "that great accomplisher of all things?" Apparently this: "He is to support … the sing-song and the ballads of treason and conspiracy, which we have heard delivered from one extremity of the continent to the other. The funeral pile of the prosecution is already prepared by the hands of the public attorney, and nothing is wanting to kindle the fatal blaze but the torch of James Wilkinson," who "is to officiate as the high priest of this human sacrifice… Wilkinson will do many things rather than disappoint the wonder-seizing appetite of America, which for months together he has been gratifying by the most miraculous actions." If Burr were found guilty, Wilkinson would stand acquitted; if not, then "the character, the reputation, every thing … will be gone for ever from general Wilkinson."

Randolph's speech was a masterpiece of invective. "The President testifies, that Wilkinson has testified to him fully against Burr; then let that letter be produced. The President's declaration of Burr's guilt is unconstitutional." It was not the business of the President "to give opinions concerning the guilt or innocence of any person." Directly addressing Marshall, Randolph continued: "With respect to your exhortation," that Burr's appeal was to the court alone, "we demand justice only, and if you cannot exorcise the demon of prejudice, you can chain him down to law and reason, and then we shall have nothing to fear."1109

The audacious Martin respected Marshall's appeal to counsel even less than Hay and Randolph had done. The prosecution had objected to the production of Wilkinson's mysterious letter to Jefferson because it might contain confidential statements. "What, sir," he shouted, "shall the cabinet of the United States be converted into a lion's mouth of Venice, or into a repertorium of the inquisition? Shall envy, hatred, and all the malignant passions pour their poison into that cabinet against the character and life of a fellow citizen, and yet that cabinet not be examined in vindication of that character and to protect that life?"

Genuine fury shook Martin. "Is the life of a man, lately in high public esteem … to be endangered for the sake of punctilio to the president?" Obey illegal orders! "If every order, however arbitrary and unjust, is to be obeyed, we are slaves as much as the inhabitants of Turkey. If the presidential edicts are to be the supreme law, and the officers of the government have but to register them, as formerly in France, … we are as subject to despotism, as … the subjects of the former 'Grands Monarques.'"1110

Now occurred as strange a mingling of acrimony and learning as ever enlightened and enlivened a court. Burr's counsel demanded that Marshall deliver a supplementary charge to the grand jury. Marshall was magnificently cautious. He would, he said, instruct the jury as confused questions arose. On further reflection and argument – Marshall's dearly beloved argument – he wrote additional instructions,1111 but would not at present announce them. There must be an actual "levying of war"; the overt act must be established; no matter what suspicions were entertained, what plans had been formed, what enterprises had been projected, there could be "no treason without an overt act."1112

In such would-and-would-not fashion Marshall contrived to waive this issue for the time being. Then he delivered that opinion which proved his courage, divided Republicans, stirred all America, and furnished a theme of disputation that remains fresh to the present day. He decided to grant Burr's demand that Jefferson be called into court with the papers asked for.

The purpose of the motion was, said Marshall, to produce copies of the army and navy orders for the seizure of Burr, the original of Wilkinson's letter to Jefferson, and the President's answer. To accomplish this object legally, Burr had applied for the well-known subpœna duces tecum directed to the President of the United States.

The objection that until the grand jury had indicted Burr, no process could issue to aid him to obtain testimony, was, Marshall would not say new elsewhere, but certainly it had never before been heard of in Virginia. "So far back as any knowledge of our jurisprudence is possessed, the uniform practice of this country [Virginia] has been, to permit any individual … charged with any crime, to prepare for his defence and to obtain the process of the court, for the purpose of enabling him so to do." An accused person must expect indictment, and has a right to compel the attendance of witnesses to meet it. It was perhaps his duty to exercise that right: "The genius and character of our laws and usages are friendly, not to condemnation at all events, but to a fair and impartial trial."

In all criminal prosecutions the Constitution, Marshall pointed out, guarantees to the prisoner "a speedy and public trial, and to compulsory process for obtaining witnesses in his favour." The courts must hold this "sacred," must construe it "to be something more than a dead letter." Moreover, the act of Congress undoubtedly contemplated "that, in all capital cases, the accused shall be entitled to process before indictment found." Thus "immemorial usage," the language of the Constitution, the National statute, all combined to give "any person, charged with a crime in the courts of the United States, … a right, before, as well as after indictment, to the process of the court to compel the attendance of his witnesses."

But could "a subpœna duces tecum be directed to the president of the United States?" If it could, ought it to be "in this case"? Neither in the Constitution nor in an act of Congress is there any exception whatever to the right given all persons charged with crime to compel the attendance of witnesses. "No person could claim an exemption." True, in Great Britain it was considered "to be incompatible with his dignity" for the King "to appear under the process of the court." But did this apply to the President of the United States? Marshall stated the many differences between the status of the British King and that of the American President.

The only possible ground for exempting the President "from the general provisions of the constitution" would be, of course, that "his duties … demand his whole time for national objects. But," continued Marshall, "it is apparent, that this demand is not unremitting" – a statement at which Jefferson took particular offense.1113 Should the President be so occupied when his presence in 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."

To be sure, any court would "much more cheerfully" dispense with the duty of issuing a subpœna to the President than to perform that duty; "but, if it be a duty, the court can have no choice" but to perform it.

If, "as is admitted by counsel for the United States," the President may be "summoned to give his personal attendance to testify," was that power nullified because "his testimony depends on a paper in his possession, not on facts which have come to his knowledge otherwise than by writing?" Such a distinction is "too much attenuated to be countenanced in the tribunals of a just and humane nation."1114 The character of the paper desired as evidence, and not "the character of the person who holds it," determines "the propriety of introducing any paper … as testimony."

It followed, then, that "a subpœna duces tecum may issue to any person to whom an ordinary subpœna may issue." The only difference between the two writs is that one requires only the attendance of the witness, while the other directs also "bringing with him a paper in his custody."

In many States the process of subpœna duces tecum issues of course, and without any action of the judge. In Virginia, however, leave of the court is required; but "no case exists … in which the motion … has been denied or in which it has been opposed," when "founded on an affidavit."

The Chief Justice declared that he would not issue the writ if it were apparent that the object of the accused in applying for it was "not really in his own defence, but for purposes which the court ought to discountenance. The court would not lend its aid to motions obviously designed to manifest disrespect to the government; but the court has no right to refuse its aid to motions for papers to which the accused may be entitled, and which may be material in his defence." If this was true in the matter of Burr's application, "would it not be a blot in the page, which records the judicial proceedings of this country, if, in a case of such serious import as this, the accused should be denied the use" of papers on which his life might depend?

Marshall carefully examined a case cited by the Government1115 in which Justice Paterson had presided, at the same time paying to the memory of the deceased jurist a tribute of esteem and affection. He answered with tedious particularity the objections to the production of Wilkinson's letter to Jefferson, and then referred to the "disrespect" which the Government counsel had asserted would be shown to the President if Marshall should order him to appear in court with the letters and orders.

"This court feels many, perhaps peculiar motives, for manifesting as guarded respect for the chief magistrate of the Union as is compatible with its official duties." But, declared Marshall, "to go beyond these … would deserve some other appellation than the term respect."

If the prosecution should end, "as is expected" by the Government, those who withheld from Burr any paper necessary to his defense would, of course, bitterly regret their conduct. "I will not say, that this circumstance would … tarnish the reputation of the Government; but I will say, that it would justly tarnish the reputation of the court, which had given its sanction to its being withheld."

With all that impressiveness of voice and manner which, on occasion, so transformed Marshall, he exclaimed: "Might I be permitted to utter one sentiment, with respect to myself, it would be to deplore, most earnestly, the occasion which should compel me to look back on any part of my official conduct with so much self-reproach as I should feel, could I declare, on the information now possessed, that the accused is not entitled to the letter in question, if it should be really important to him."

Let a subpœna duces tecum, therefore ruled the Chief Justice, be issued, directed to Thomas Jefferson, President of the United States.1116

Nothing that Marshall had before said or done so highly excited counsel for the prosecution as his assertion that they "expected" Burr's conviction. The auditors were almost as deeply stirred. Considering the peculiarly mild nature of the man and his habitual self-restraint, Marshall's language was a pointed rebuke, not only to the Government's attorneys, but to the Administration itself. Even Marshall's friends thought that he had gone too far.

Instantly MacRae was on his feet. He resented Marshall's phrase, and denied that the Government or its counsel "wished" the conviction of Burr – such a desire was "completely abhorrent to [their] feelings." MacRae hoped that Marshall did not express such an opinion deliberately, but that it had "accidentally fallen from the pen of [his] honor."

Marshall answered that he did not intend to charge the Administration or its attorneys with a desire to convict Burr "whether he was guilty or innocent"; but, he added dryly, "gentlemen had so often, and so uniformly asserted, that colonel Burr was guilty, and they had so often repeated it before the testimony was perceived, on which that guilt could alone be substantiated, that it appeared to him probable, that they were not indifferent on the subject."1117

Hay, in his report to Jefferson, gave more space to this incident than he did to all other features of the case. He told the President that Marshall had issued the dreaded process and then quoted the offensive sentence. "This expression," he relates, "produced a very strong & very general sensation. The friends of the Judge, both personal & political, Condemned it. Alexṛ McRae rose as soon as he had finished, and in terms mild yet determined, demanded an explanation of it. The Judge actually blushed." And, triumphantly continues the District Attorney, "he did attempt an explanation… I observed, with an indifference which was not assumed, that I had endeavored to do my duty, according to my own judgment and feelings, that I regretted nothing that I had said or done, that I should pursue the same Course throughout, and that it was a truth, that I cared not what any man said or thought about it."

Marshall himself was perturbed. "About three hours afterwards," Hay tells Jefferson, "when the Crowd was thinned, the Judge acknowledged the impropriety of the expression objected to, & informed us from the Bench that he had erased it." The Chief Justice even apologized to the wrathful Hay: "After he had adjourned the Court, he descended from the Bench, and told me that he regretted the remark, and then by way of apology said, that he had been so pressed for time, that he had never read the opinion, after he had written it." Hay loftily adds: "An observation from me that I did not perceive any connection between my declarations & his remark, or how the former could regularly be the Cause of the latter, closed the Conversation."1118

Hay despondently goes on to say that "there never was such a trial from the beginning of the world to this day." And what should he do about Bollmann? That wretch "resolutely refuses his pardon & is determined not to utter a word, if he can avoid it. The pardon lies on the clerks table. The Court are to decide whether he is really pardoned or not. Martin says he is not pardoned. Such are the questions, with which we are worried. If the Judge says that he is not pardoned, I will take the pardon back. What shall I then do with him?"

The immediate effect of Marshall's ruling was the one Jefferson most dreaded. For the first time, most Republicans approved of the opinion of John Marshall. In the fanatical politics of the time there was enough of honest adherence to the American ideal, that all men are equal in the eyes of the law, to justify the calling of a President, even Thomas Jefferson, before a court of justice.

Such a militant Republican and devotee of Jefferson as Thomas Ritchie, editor of the Richmond Enquirer, the party organ in Virginia, did not criticize Marshall, nor did a single adverse comment on Marshall appear in that paper during the remainder of the trial. Not till the final verdict was rendered did Ritchie condemn him.1119

Before he learned of Marshall's ruling, Jefferson had once more written the District Attorney giving him well-stated arguments against the issuance of the dreaded subpœna.1120 When he did receive the doleful tidings, Jefferson's anger blazed – but this time chiefly at Luther Martin, who was, he wrote, an "unprincipled & impudent federal bull-dog." But there was a way open to dispose of him: Martin had known all about Burr's criminal enterprise. Jefferson had received a letter from Baltimore stating that this had been believed generally in that city "for more than a twelve-month." Let Hay subpœna as a witness the writer of this letter – one Greybell.

Something must be done to "put down" the troublesome "bull-dog": "Shall L M be summoned as a witness against Burr?" Or "shall we move to commit L M as particeps criminis with Burr? Greybell will fix upon him misprision of treason at least … and add another proof that the most clamorous defenders of Burr are all his accomplices."

As for Bollmann! "If [he] finally rejects his pardon, & the Judge decides it to have no effect … move to commit him immediately for treason or misdemeanor."1121 But Bollmann, in open court, had refused Jefferson's pardon six days before the President's vindictively emotional letter was written.

After Marshall delivered his opinion on the question of the subpœna to Jefferson, Burr insisted, in an argument as convincing as it was brief, that the Chief Justice should now deliver the supplementary charge to the grand jury as to what evidence it could legally consider. Marshall announced that he would do so on the following Monday.1122

Several witnesses for the Government were sworn, among them Commodore Thomas Truxtun, Commodore Stephen Decatur, and "General" William Eaton. When Dr. Erich Bollmann was called to the book, Hay stopped the administration of the oath. Bollmann had told the Government all about Burr's "plans, designs and views," said the District Attorney; "as these communications might criminate doctor Bollman before the grand jury, the president has communicated to me this pardon" – and Hay held out the shameful document. He had already offered it to Bollmann, he informed Marshall, but that incomprehensible person would neither accept nor reject it. His evidence was "extremely material"; the pardon would "completely exonerate him from all the penalties of the law." And so, exclaimed Hay, "in the presence of this court, I offer this pardon to him, and if he refuses, I shall deposit it with the clerk for his use." Then turning to Bollmann, Hay dramatically asked:

"Will you accept this pardon?"

"No, I will not, sir," firmly answered Bollmann.

Then, said Hay, the witness must be sent to the grand jury "with an intimation, that he has been pardoned."

"It has always been doctor Bollman's intention to refuse this pardon," broke in Luther Martin. He had not done so before only "because he wished to have this opportunity of publicly rejecting it."

Witness after witness was sworn and sent to the grand jury, Hay and Martin quarreling over the effect of Jefferson's pardon of Bollmann. Marshall said that it would be better "to settle … the validity of the pardon before he was sent to the grand jury." Again Hay offered Bollmann the offensive guarantee of immunity; again it was refused; again Martin protested.

"Are you then willing to hear doctor Bollman indicted?" asked Hay, white with anger. "Take care," he theatrically cried to Martin, "in what an awful condition you are placing this gentleman."

Bollmann could not be frightened, retorted Martin: "He is a man of too much honour to trust his reputation to the course which you prescribe for him."

Marshall "would perceive," volunteered the nonplussed and exasperated Hay, "that doctor Bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason."

The Chief Justice announced that he could not, "at present, declare, whether he be really pardoned or not." He must, he said, "take time to deliberate."

Hay persisted: "Categorically then I ask you, Mr. Bollman, do you accept your pardon?"

"I have already answered that question several times. I say no," responded Bollmann. "I repeat, that I would have refused it before, but that I wished this opportunity of publicly declaring it."1123

Bollmann was represented by an attorney of his own, a Mr. Williams, who now cited an immense array of authorities on the various questions involved. Counsel on both sides entered into the discussion. One "reason why doctor Bollman has refused this pardon" was, said Martin, "that it would be considered as an admission of guilt." But "doctor Bollman does not admit that he has been guilty. He does not consider a pardon as necessary for an innocent man. Doctor Bollman, sir, knows what he has to fear from the persecution of an angry government; but he will brave it all."

Yes! cried Martin, with immense effect on the excited spectators, "the man, who did so much to rescue the marquis la Fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout Europe, that he was compelled to abandon his honour through a fear of unjust persecution." Finally the true-hearted and defiant Bollmann was sent to the grand jury without having accepted the pardon, and without the legal effect of its offer having been decided.1124

When the Richmond Enquirer, containing Marshall's opinion on the issuance of the subpœna duces tecum, reached Washington, the President wrote to Hay an answer of great ability, in which Jefferson the lawyer shines brilliantly forth: "As is usual where an opinion is to be supported, right or wrong, he [Marshall] dwells much on smaller objections, and passes over those which are solid… He admits no exception" to the rule "that all persons owe obedience to subpœnas … unless it can be produced in his law books."

"But," argues Jefferson, "if the Constitution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Constitution enjoins his [the President's] constant agency in the concerns of 6. millions of people. Is the law paramount to this, which calls on him on behalf of a single one?"

Let Marshall smoke his own tobacco: suppose the Sheriff of Henrico County should summon the Chief Justice to help "quell a riot"? Under the "general law" he is "a part of the posse of the State sheriff"; yet, "would the Judge abandon major duties to perform lesser ones?" Or, imagine that a court in the most distant territory of the United States "commands, by subpœnas, the attendance of all the judges of the Supreme Court. Would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual?"

The Judiciary was incessantly proclaiming its "independence," and asserting that "the leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other." But where would be such independence, if the President "were subject to the commands of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his constitutional duties?"

Jefferson vigorously resented Marshall's personal reference to him. "If he alludes to our annual retirement from the seat of government, during the sickly season," Hay ought to tell Marshall that Jefferson carried on his Executive duties at Monticello.1125

Crowded with sensations as the proceedings had been from the first, they now reached a stage of thrilling movement and high color. The long-awaited and much-discussed Wilkinson had at last arrived "with ten witnesses, eight of them Burr's select men," as Hay gleefully reported to Jefferson.1126 Fully attired in the showy uniform of the period, to the last item of martial decoration, the fat, pompous Commanding General of the American armies strode through the crowded streets of Richmond and made his way among the awed and gaping throng to his seat by the side of the Government's attorneys.

Washington Irving reports that "Wilkinson strutted into the Court, and … stood for a moment swelling like a turkey cock." Burr ignored him until Marshall "directed the clerk to swear General Wilkinson; at the mention of the name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly … went on conversing with his counsel as tranquilly as ever."1127

Wilkinson delighted Jefferson with a different description: "I saluted the Bench & in spite of myself my Eyes darted a flash of indignation at the little Traitor, on whom they continued fixed until I was called to the Book – here Sir I found my expectations verified – This Lyon hearted Eagle Eyed Hero, sinking under the weight of conscious guilt, with haggard Eye, made an Effort to meet the indignant salutation of outraged Honor, but it was in vain, his audacity failed Him, He averted his face, grew pale & affected passion to conceal his perturbation."1128

But the countenance of a thin, long-faced, roughly garbed man sitting among the waiting witnesses was not composed when Wilkinson appeared. For three weeks Andrew Jackson to all whom he met had been expressing his opinion of Wilkinson in the unrestrained language of the fighting frontiersman;1129 and he now fiercely gazed upon the creature whom he regarded as a triple traitor, his own face furious with scorn and loathing.