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

On Tuesday, August 25, although the court opened at nine o'clock,1221 the heat was so oppressive that nothing but the public interest – now reaching the point of hysteria – could have kept the densely packed audience in the stifling hall.1222 But the spectators soon forgot their discomfort. The youthful, handsome William Wirt enraptured them with an eloquence which has lived for a century. It is impossible to give a faithful condensation of this charming and powerful address, the mingled courtesy and boldness of it, the apt phrase, the effective imagery, the firm logic, the wealth of learning. Only examples can be presented; and these do scant justice to the young lawyer's speech.

"When we speak of treason, we must call it treason… Why then are gentlemen so sensitive … as if instead of a hall of justice, we were in a drawing-room with colonel Burr, and were barbarously violating towards him every principle of decorum and humanity?1223 This motion [to arrest the testimony] is a bold and original stroke in the noble science of defence," made to prevent the hearing of the evidence. But he knew that Marshall would not "sacrifice public justice, committed to [his] charge, by aiding this stratagem to elude the sentence of the law."1224

Why had Wickham said so little of American and so much of British precedents, vanishing "like a spirit from American ground and … resurging by a kind of intellectual magic in the middle of the 16th century, complaining most dolefully of my lord Coke's bowels." It was to get as far as possible away from Marshall's decision in the case of Bollmann and Swartwout. If Marshall's opinion had been favorable, Wickham "would not have … deserted a rock so broad and solid, to walk upon the waves of the Atlantic." Wirt made the most of Marshall's careless language.1225

The youthful advocate was impressing Marshall as well as jury and auditors. "Do you mean to say," asked the Chief Justice, "that it is not necessary to state in the indictment in what manner the accused, who it is admitted was absent, became connected with the acts on Blennerhassett's island?" In reply Wirt condensed the theory of the prosecution: "I mean to say, that the count is general in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct in the transaction, he made his own; that it is sufficient to make this charge generally, not only because it is authorized by the constitutional definition, but because it is conformable to modern cases, in which the indictments are pruned of all needless luxuriances."1226

Burr's presence at the island necessary! If so, a man might devise and set in motion "the whole mechanism" of treason, "go a hundred miles" away, let it be operated by his agents, "and he is innocent, … while those whom he has deluded are to suffer the death of traitors." How infamous! Burr only the accessory and Blennerhassett the principal! "Will any man believe that Burr who is a soldier bold, ardent, restless and aspiring, the great actor whose brain conceived and whose hand brought the plot into operation, should sink down into an accessory and Blennerhassett be elevated into a principal!"

Here Wirt delivered that passage which for nearly a hundred years was to be printed in American schoolbooks, declaimed by American youth, and to become second only to Jefferson's Proclamation, Messages, and letters, in fixing, perhaps irremovably, public opinion as to Aaron Burr and Harman Blennerhassett.1227 But his speech was not all rhetoric. Indeed, no advocate on either side, except John Wickham and Luther Martin, approached him in analyses of authorities and closeness of reasoning.1228

"I cannot promise you, sir, a speech manufactured out of tropes and figures," remarked Botts in beginning his reply. No man better could have been found to break the force of the address of his young brother of the bar. Wirt had defaced his otherwise well-nigh perfect address by the occasional use of extravagant rhetoric, some of which, it appears, was not reported. Botts availed himself of one such display to make Wirt's argument seem absurd and trivial: "Instead of the introduction of a sleeping Venus with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the prosecution by leading our imaginations to the fascinating richness … of heaving bosom and luscious waist, I am compelled to plod heavily and meekly through the dull doctrines of Hale and Foster." Botts continued, with daring but brilliant satire, to ridicule Wirt's unhappy rhetoric.1229 Soon spectators, witnesses, jury, were in laughter. The older lawyers were vastly amused. Even Marshall openly enjoyed the humor.

His purpose thus accomplished, Botts now addressed himself to the evidence, to analyze which he had been assigned. And a perfect job he made of it. He spoke with impetuous rapidity.1230 He reviewed the events at Blennerhassett's island: "There was war, when there was confessedly no war; and it happened although it was prevented!" As to arms: "No arms were necessary … they might make war with their fingers." Yes, yes, "a most bloody war indeed – and ten or twelve boats." Referring to the flight from Blennerhassett's island, the sarcastic lawyer observed: "If I run away and hide to avoid a beating I am guilty and may be convicted of assault and battery!" What "simpletons" the people of Kentucky and Mississippi had been! "They hunted but could not find the war," although there it was, right among them!1231

What was the moving force back of the prosecution? It was, charged Botts, the rescue of the prestige of Jefferson's Administration. "It has not only been said here but published in all the newspapers throughout the United States, that if Aaron Burr should be acquitted it will be the severest satire on the government; and that the people are called upon to support the government by the conviction of colonel Burr; … even jurymen have been taught by the common example to insult him."

No lie was too contemptible to be published about him. For instance, "when the grand jury returned a true bill, he was firm, serene, unmoved, composed – no change of countenance… Yet the next day they announced in the newspapers," declared Botts, "that he was in a state of indescribable consternation and dismay." Worse still, "every man who dares to look at the accused with a smile or present him the hand of friendship" is "denounced as a traitor."1232

Black but faithful was the picture the fearless lawyer drew of the Government's conduct.1233 He dwelt on the devices resorted to for inflaming the people against Burr, and after they had been aroused, the demand that public sentiment be heeded and the accused convicted. Was that the method of justice! If so, where was the boasted beneficence of democracies? Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral Byng. "Jefferson was run down in 17801234 by the voice of the people." If the law of constructive treason were to be adopted in America and courts were to execute the will of the people, alas for any man, however upright and innocent, whom public opinion had been falsely led to condemn.1235

Hay, who had been ill for several days1236 and was badly worn, spoke heavily for the greater part of two days.1237 His address, though dull, was creditable; but he added nothing in thought or authorities to Wirt's great speech. His principal point, which he repeated interminably, was that the jury must decide both law and fact. In making this contention he declared that Marshall was now asked by Burr's counsel to do the very thing for which Chase had been impeached.1238 Time and again the District Attorney insinuated that impeachment would be Marshall's fate if he did not permit the jury to hear all the testimony.1239

Charles Lee, Attorney-General under President Adams, and an intimate friend of Marshall,1240 had joined Burr's legal forces some time before. In opening his otherwise dry argument, Lee called Marshall's attention to Hay's threat of impeachment. The exhausted District Attorney finally denied that he meant such a thing, and Marshall mildly observed: "I did not consider you as making any personal allusion, but as merely referring to the law."1241 Thus, with his kindly tactfulness, Marshall put the incident aside.

On August 28, Luther Martin closed the debate. He had been drinking even more than usual throughout the proceedings;1242 but never was he in more perfect command of all his wonderful powers. No outline of his address will be attempted; but a few quotations may be illustrative.

It was the admitted legal right and "indispensable duty" of Burr's counsel, began Martin, to make the motion to arrest the testimony; yet for doing so "we have been denounced throughout the United States as attempting to suppress the truth." Our act "has been held up to the public and to this jury as conclusive proof of our guilt." Such, declared the great lawyer, were the methods used to convict Burr.1243 He had been in favor, he avowed, of waiving "obvious and undeniable rights," and of going on with the trial because he was convinced that all the evidence would not only clear "his friend," but remove the groundless prejudices which had so wickedly been excited against Burr. But he had yielded to the judgment of his associates that the plan adopted was more conformable to law.

"I shall ever feel the sincerest gratitude to heaven, that my life has been preserved to this time, and that I am enabled to appear … in his defense." And if his fellow counsel and himself should be "successful in rescuing a gentleman, for whom I with pleasure avow my friendship and esteem, from the fangs of his persecutors … what dear delight will my heart enjoy!"1244 Martin thanked Heaven, too, for the boon of being permitted to oppose the "destructive" doctrine of treason advanced by the Government. For hours he analyzed the British decisions which he "thanked God … are not binding authority in this country." He described the origin and growth of the doctrine of constructive treason and defined it with clearness and precision.1245 It was admitted that Burr was not actually present at the time and place at which the indictment charged him with having committed the crime; but, according to the Government, he was "constructively" present.

With perfect fearlessness Martin attacked Marshall's objectionable language in the Bollmann and Swartwout opinion from the Supreme Bench: "As a binding judicial opinion," he accurately declared, "it ought to have no more weight than the ballad of Chevy Chase."1246 Deftly he impressed upon Marshall, Hay's threat of impeachment if the Chief Justice should presume to decide in Burr's favor.1247 Lamenting the popular hostility toward Burr, Martin defied it: "I have with pain heard it said1248 that such are the public prejudice against colonel Burr, that a jury, even should they be satisfied of his innocence, must have considerable firmness of mind to pronounce him not guilty. I have not heard it without horror.

"God of Heaven! have we already under our form of government (which we have so often been told is best calculated of all governments to secure all our rights) arrived at a period when a trial in a court of justice, where life is at stake, shall be but … a mere idle … ceremony to transfer innocence from the gaol to the gibbet, to gratify popular indignation excited by bloodthirsty enemies!"

Martin closed by a personal appeal to Marshall: "But if it require in such a situation firmness in a jury, so does it equally require fortitude in judges to perform their duty… If they do not and the prisoner fall a victim, they are guilty of murder in foro cœli whatever their guilt may be in foro legis… May that God who now looks down upon us, and who has in his infinite wisdom called you into existence and placed you in that seat to dispense justice to your fellow citizens, to preserve and protect innocence against persecution – may that God so illuminate your understandings that you may know what is right; and may he nerve your souls with firmness and fortitude to act according to that knowledge."1249

The last word of this notable debate had been spoken.1250 The fate of Aaron Burr and of American liberty, as affected by the law of treason, now rested in the hands of John Marshall.

On Monday morning, August 31, the Chief Justice read his opinion. All Richmond and the multitude of strangers within her gates knew that the proceedings, which for four months had enchained the attention of all America, had now reached their climax. Burr's friends were fearful, and hoped that the laudanum calumny1251 would "strengthen" Marshall to do his duty.1252 For the moment the passions of the throng were in abeyance while the breathless spectators listened to Marshall's calm voice as it pronounced the fateful words.

The opinion of the Chief Justice was one of the longest ever rendered by him, and the only one in which an extensive examination of authorities is made. Indeed, a greater number of decisions, treatises, and histories are referred to than in all the rest of Marshall's foremost Constitutional opinions. Like every one of these, the Burr opinion was a state paper of first importance and marked a critical phase in the development of the American Nation.

Marshall stated the points first to be decided: under the Constitution can a man be convicted of treason in levying war who was not present when the war was levied; and, if so, can testimony be received "to charge one man with the overt acts of others until those overt acts as laid in the indictment be proved to the satisfaction of the court"? He made clear the gravity of the Constitutional question: "In every point of view in which it can be contemplated, [it] is of infinite moment to the people of this country and their government."1253

What was the meaning of the words, "'levying war'?.. Had their first application to treason been made by our constitution they would certainly have admitted of some latitude of construction." Even so it was obvious that the term "levying war" literally meant raising or creating and making war. "It would be affirming boldly to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war."

Suppose the case of "a commissary of purchases" for an army raised to make war, who supplied it with provisions; would he not "levy war" as much as any other officer, although he may never have seen the army? The same was true of "a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him."

But levying war was not for the first time designated as treason by the American Constitution. "It is a technical term," borrowed from an ancient English statute1254 and used in the Constitution in the sense understood in that country and this at the time our fundamental law was framed.

Not only British decisions, but "those celebrated elementary writers" whose "books are in the hands of every student," and upon which "legal opinions are formed" that are "carried to the bar, the bench and the legislature" – all must be consulted in ascertaining the import of such terms.1255

Marshall reviewed Coke, Hale, Foster, and Blackstone, and found them vague upon the question "whether persons not in arms, but taking part in a rebellion, could be said to levy war independent of that legal rule [of constructive treason] which attaches the guilt of the principal to an accessory." Nor were the British decisions more satisfactory: "If in adjudged cases this question [has] been … directly decided, the court has not seen those cases."1256 To trace the origin of "the doctrine that in treason all are principals" was unimportant. However "spurious," it was the British principle settled for ages.

The American Constitution, however, "comprizes no question respecting principal and accessory" – the traitor must "truly and in fact levy war." He must "perform a part in the prosecution of the war."1257

Marshall then gingerly takes up the challenge of his opinion in the case of Bollmann and Swartwout. Since it had been upon the understanding by the grand jury of his language in that opinion that Burr had been indicted for treason, and because the Government relied on it for conviction so far as the prosecution depended on the law, the Chief Justice took pains to make clear the disputed passages.

"Some gentlemen have argued as if the supreme court had adopted the whole doctrine of the English books on the subject of accessories to treason.1258 But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. To complete the definition both circumstances must occur. They must 'perform a part' which will furnish the overt act; and they must be 'leagued in the conspiracy.'"

Did the things proved to have happened on Blennerhassett's island amount to the overt act of levying war? He had heard, said Marshall, that his opinion in Bollmann and Swartwout was construed as meaning that "any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in a condition to use violence or not in that condition, is a levying of war." That view of his former opinion had not, indeed, "been expressly advanced at the bar"; but Marshall understood, he said, that "it was adopted elsewhere."1259

Relying exclusively on reason, all would agree, he continued, "that war could not be levied without the employment and exhibition of force… Intention to go to war may be proved by words," but the actual going to war must "be proved by open deed."1260

This natural and reasonable understanding of the term was supported by the authorities. Marshall then made specific reference to the opinions of a large number of British writers and judges, and of all American judges who had passed upon the question. In none of these, he asserted, had "the words 'levying war' … received a technical different from their natural meaning"1261– that is, "the employment and exhibition of force."

Had he overruled all these opinions in the Bollmann-Swartwout case? Had he, in addition, reversed the natural interpretation of the Constitution which reason dictated? Surely not! Yet this was what he was now charged with having done.

But, said Marshall, "an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms." A mere implication was not enough. Yet this was all there was to justify the erroneous construction of his opinion in the case of Bollmann and Swartwout – "the omission of the court to state that the assemblage which constitutes the fact of levying war ought to be in force."1262

Marshall then went into an extended and minute analysis of his misunderstood opinion, and painfully labored to show that he then intended to say, as he now did say: that the act of levying war required "an assemblage in force," and not merely "a secret furtive assemblage without the appearance of force." The gathering "must be such as to prove that [war] is its object." If it was not "a military assemblage in a condition to make war, it was not a levying of war."1263

The indictment charged Burr with having levied war at a specific place and stated the exact manner in which the act had been done; this was necessary; otherwise the accused could not make adequate defense. So the indictment "must be proved as laid"; otherwise "the charge of an overt act would be a mischief instead of an advantage to the accused," and would lead him from the true cause and nature of the accusation instead of informing him respecting it.1264

The Government insisted that, although Burr "had never been with the party … on Blennerhassett's island, and was, at the time, at a great distance and in a different state… he was yet legally present, and therefore may properly be charged in the indictment as being present in fact." Thus, the question arose "whether in this case the doctrine of constructive presence can apply." In answering it, John Marshall ended the contention that so cruel a dogma can ever be applied in America. This achievement was one of his noblest services to the American people.1265

Again an imposing array of precedents was examined. "The man, who incites, aids, or procures a treasonable act," is not, merely on that account, "legally present when that act is committed."1266 Of course, other facts might require that a man should be considered to be present although really absent; for example, if he were on the way there for the purpose of taking part in the specific act charged, or if he were stationed near in order to coöperate with those who actually did the deed, he would be of them and associated with them in the perpetration of that particular act.1267 But otherwise he could not be said to be present.

If this were not so, then a man levying war in one part of the country might be construed to be present at and taking part in hostilities at the most distant point of the Republic – a participator in "every overt act performed anywhere"; and he would be liable to trial and conviction "in any state on the continent where any overt act has been committed" by anybody. "He may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts."1268

If Burr were guilty of treason in connection with the assemblage on Blennerhassett's island, it was only because Burr procured the men to meet for the purpose of levying war against the United States. But the fact that he did procure the treasonable assemblage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence – since the procuring of the assemblage takes the place of presence at it. "If in one case," declared Marshall, "the presence of the individual make the guilt of the assemblage his guilt, and in the other case the procurement by the individual make the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses."1269

Neither presence nor procurement could, therefore, be proved by collateral testimony: "No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the constitution and the law." And "if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured, or inferred, can satisfy the constitution and the law.

"The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses," as required by the Constitution. "Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the assembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses."1270

To the objection that this could "scarcely ever" be done, since "the advising or procurement of treason is a secret transaction," the answer was, said Marshall, "that the difficulty of proving a fact will not justify conviction without proof." And most "certainly it will not justify conviction without [one] direct and positive witness in a case where the constitution requires two." The true inference from "this circumstance" was "that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason … is not treason in itself."1271

The testimony which the Government now proposed to offer was to "prove – what? the overt act laid in the indictment? that the prisoner was one of those who assembled at Blennerhassett's island? No!" But, instead, "evidence [of] subsequent transactions at a different place and in a different state." But such "testimony was not relevant." If it could be introduced at all, it would be "only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury."1272