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

Before closing, Marshall answered the threats of Hay and Wirt that, if he decided in favor of Burr, he would be impeached: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true… No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."1273

Let the jury apply the law as announced to the facts as proved and "find a verdict of guilty or not guilty as their own consciences shall direct."

The next morning the petit jury retired, but quickly returned. Marshall's brother-in-law, Colonel Edward Carrington, foreman, rose and informed the court that the jury had agreed upon a verdict.

"Let it be read," gravely ordered Marshall.

And Colonel Carrington read the words of that peculiar verdict:

"We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty."1274

Instantly Burr, Martin, Wickham, and Botts were on their feet protesting. This was no verdict, according to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure.

Discussion followed. Hay insisted that the verdict be received and recorded as returned. "It was like the whole play," exclaimed Martin, "Much Ado About Nothing." Of course the verdict must be corrected. Did the jury mean to "censure … the court for suppressing irrelevant testimony?" Unthinkable! And if not, they ought to answer simply "Guilty" or "Not Guilty."1275

Colonel Carrington informed the court that, among themselves, the jury had said that "they would alter the verdict if it was informal – it was in fact a verdict of acquittal." Richard E. Parker, also of the jury, said he never would agree to change the form – they knew what they were about when they adopted it. Parker was "a violent Jeffersonian partisan," and Burr's friends had reproved him for accepting such a man as a member of the jury.1276

Soothingly Marshall directed that the verdict "stand on the bill" as the jury wished it; but, since it was "in effect a verdict of acquittal," let "an entry be made on the record of 'Not Guilty.'"

The Chief Justice "politely thanked the jury for their patient attention during the whole course of this long trial, and then discharged them."1277

A week before Marshall delivered his opinion, an attempt was made to induce Blennerhassett to betray Burr. On August 23 William Duane, editor of the Aurora, and an intimate friend, supporter, and agent of Jefferson, approached Blennerhassett for that purpose, and offered to go to Washington, "now or at any time hereafter," in his behalf. Duane assured him that the Administration would refuse him (Duane) "nothing he should ask." But Blennerhassett repulsed Duane's advances.1278

Hay, angry and discomfited, entered a nolle prosequi to the indictments of Dayton, Blennerhassett, and the others for the same crime; but, in obedience to Jefferson's orders, demanded that all of them, Burr included, be still held under the charge of treason, that they might be sent for trial to some place where an overt act might have been committed.1279 Marshall, after enduring another long argument, gently put the application aside because all the conspirators were now to be tried upon the charge of misdemeanor under the second indictment.1280

Marshall's motives were clearer than ever to Jefferson. "The event has been what was evidently intended from the beginning of the trial; … not only to clear Burr, but to prevent the evidence from ever going before the world. But this latter case must not take place." Hay must see to it that "not a single witness be paid or permitted to depart until his testimony has been committed to writing… These whole proceedings will be laid before Congress, that they may … provide the proper remedy."1281

Jefferson ordered Hay to press for trial on the indictment for misdemeanor, not with the expectation of convicting Burr, but in the hope that some sort of testimony would be brought out that would convict Marshall in the court of public opinion, and perhaps serve as a pretext for impeaching him. Thus, in the second trial of which we are now to be spectators, "the chief-justice was occupied in hearing testimony intended for use not against Burr, but against himself."1282 It was for this reason that Marshall, when the trial for misdemeanor began, threw open wide the doors to testimony.1283

Burr's counsel, made unwise by victory, insisted that he should not be required to give bail, and Marshall, although the point had been decided and was not open to dispute, permitted and actually encouraged exasperatingly extended argument upon it.1284 Burr had submitted to give bail at the beginning, said Botts, not because it was "demandable of right," but because he and his counsel "had reason to apprehend danger … from the violence and turbulence of the mob."1285

Marshall was careful to deliver another long and, except for the political effect, wholly unnecessary opinion; nor was it directly on the matter at issue. Counsel floundered through a tangle of questions, Marshall exhibiting apparent indecision by manifesting great concern, even on the simplest points.

John Marshall

From the portrait by Robert Matthew Sully, in the Corcoran Gallery of Art, Washington, D.C.

Finally, he ordered that Burr "be acquitted and discharged" as to the indictment for treason, but to be held in five thousand dollars bail under the indictment for misdemeanor. Jonathan Dayton and William Langbourne offered themselves and were accepted as sureties; and on September 3, after nearly nine weeks of imprisonment, Burr walked out of court unhindered, no longer to be under lock and bar and armed guard.1286

Merry were the scenes in the houses of Richmond society that night; hilarious the rejoicing about the flowing board of Luther Martin; and, confused and afflicted with a blurred anger, the patriotic multitude talked resentfully of Marshall's decision. On one side it was said that justice had prevailed and persecution had been defeated; on the other, that justice had been mocked and treason protected. Hay, Wirt, and MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and Burr, jubilant and aggressive.

Many conflicting stories sprang up concerning Marshall – his majestic bearing on the bench, his servility, his courage, his timidity. One of these has survived: "Why did you not tell Judge Marshall that the people of America demanded a conviction?" a disgusted Republican asked of Wirt. "Tell him that!" exclaimed Wirt. "I would as soon have gone to Herschel, and told him that the people of America insisted that the moon had horns as a reason why he should draw her with them."1287

The captain of the "conspiracy" had never lost heart, and, save when angered by Marshall's seeming inconsistency and indecision, had continued to be cheery and buoyant. Steadily he had assured his friends that, when acquitted, he would again take up and put through his plans. This thought now dominated him. Blennerhassett, upon visiting his chief, found Burr "as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption," with better prospects for success than ever.1288

Quick to press his advantage, Burr the next morning demanded the production of the letters called for in the subpœna duces tecum to Jefferson. These had not been forthcoming, and Burr asserted the President to be in contempt of court and subject to punishment therefor.1289 Once more altercation flared up in debate. Hay said he had one of the letters; that it had not "the most distant bearing on the subject," and that he might prefer "to be put in prison" rather than disclose its contents.1290

Jefferson had become very nervous about Marshall's order and plainly feared that the Chief Justice might attempt to enforce it. The thought frightened him; he had no stomach for a direct encounter. At last he wished to compose the differences between himself and the obstinate and fearless, if gentle-mannered, Marshall. So the President directed his district attorney to tell the United States Marshal to obey no order of the court and to intimate to the Chief Justice the wisdom of deferring the vexed question until the next session of Congress.

He wrote, said Jefferson, "in a spirit of conciliation and with the desire to avoid conflicts of authority between the high branches of the government which would discredit equally at home and abroad." Naturally Burr and his counsel would like "to convert this trial into a contest between the judiciary & Exve Authorities"; but he had not "expected … that the Ch. Justice would lend himself to it." Surely Marshall's "prudence and good sense" would not "permit him to press it."

But if Marshall was determined to attack Jefferson and "issue any process which [would] involve any act of force to be committed on the persons of the Exve or heads of departs," Hay was to give Jefferson "instant notice, and by express if you find that can be done quicker than by post; and … moreover … advise the marshal on his conduct as he will be critically placed between us."

The "safest way" for that officer to pursue "will be to take no part in the exercise of any act of force ordered in this case. The powers given the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-eminence, & every individual also from judiciary vengeance, and the marshal may be assured of it's effective exercise to cover him."

Such was Jefferson's threat to use force against the execution of the process of the National courts. But the President went on: "I hope however that the discretion of the C. J. will suffer this question to lie over for the present, and at the ensuing session of the legislature [Congress] he may have means provided for giving individuals the benefit of the testimony of the Exve functionaries in proper cases, without breaking up the government. Will not the associate judge [Cyrus Griffin] assume to divide his court and procure a truce at least in so critical a conjuncture?"1291

When Hay acknowledged that he had one of the letters from Wilkinson to Jefferson, a subpœna duces tecum was served on the District Attorney, notwithstanding his gallant declaration that he would not produce it even if he were sent to jail for not doing so. Hay then returned a copy of such parts of the letter as he thought "material for the purposes of justice," declining to give those passages which Jefferson deemed "confidential."1292 Burr insisted on the production of the entire letter.

Botts moved that the trial be postponed "till the letter shall be produced." Another of that unending series of arguments followed,1293 and still another of Marshall's cautious but convincing opinions came forth. Jefferson, he said, had not forbidden the production of the letter – the President, in response to the subpœna upon him, had sent the document to Hay, leaving to the discretion of the District Attorney the question as to what should be done with it. Of course if, for public reasons, Jefferson had declined to produce the letter, his "motives may [have been] such as to restrain the court" from compelling him to do so.1294 At least Burr might see the letter now; consideration of the other features of the controversy would be deferred.1295

The distracted Hay, his sour temper made more acid by a "greatly aggravated influenza," wrote Jefferson of the Government's predicament; Marshall's remarks from the bench had not been explicit, he said, and "it is impossible to foresee what his opinion will be unless I could foresee what will be the state of his nerves. Wirt, who has hitherto advocated the integrity of the Chief Justice, now abandons him."

The District Attorney dolefully tells the President that he is "very decidedly of the opinion, that these prosecutions will terminate in nothing." He thinks the Government will be defeated on the trials for misdemeanor, and believes the indictments for that offense should be dismissed and motion made for the commitment of Burr, Blennerhassett, and Smith to be transferred to some spot where their crime might be proved. "Instruct me," he begs Jefferson, "specially on this point."1296

Jefferson, now on his vacation at Monticello, directed Hay to press at Richmond the trial of Burr for misdemeanor. "If defeated it will heap coals of fire on the head of the judge; if convicted, it will give them time to see whether a prosecution for treason can be instituted against him in any, and what court." A second subpœna duces tecum seems to have been issued against Jefferson,1297 and he defiantly refused to "sanction a proceeding so preposterous," by "any notice" of it.1298 And there this heated and dangerous controversy appears to have ended.1299

Finally, the hearing of evidence began on the indictment against Burr for misdemeanor – for having conducted an attack upon Mexico. For seven weeks the struggle went on. The Government's attorneys showed the effects of the long and losing fight. Many witnesses were sent home unexamined or merely leaving their affidavits. Hay acted like the sick man he really was. The dour MacRae appeared "utterly chop-fallen; an object of disgust to his friends, and pity to his enemies."1300 Only Wirt, with his fine gallantry of spirit, bore himself manfully. Motions, arguments, opinions continued. One of Marshall's rulings on the admissibility of evidence moved Blennerhassett to ecstasies.1301

More than fifty witnesses were examined, the heavy preponderance of the evidence clearly showing that Burr's purpose and expectations had been to settle the Washita lands and, in case the United States went to war with Spain, and only in that event, to lead a force against the Spaniards. No testimony whatever was given tending to disclose any hostile plans against the United States, or even for an attack upon Mexico without war between America and Spain, except that of Wilkinson, Eaton, Taylor, Allbright, and the Morgans, as already set out. One witness also told of a wild and fanciful talk by the eccentric and imaginative Blennerhassett.1302

The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a despicable light,1303 and Eaton appeared more fantastic than ever; but both these heroes put on looks of lofty defiance. The warrior-diplomat of Algerian fame had now fallen so low in the public esteem that one disgusted Virginian had threatened to kick him out of a room.1304

On September 15, 1807, the District Attorney, by attempting to enter a nolle prosequi on the indictment of Burr for misdemeanor, tried to prevent the jury from rendering a verdict.1305 One member of the jury wanted that body to return a special finding; but his associates would have none of it, and in half an hour they reported a straight verdict of "Not Guilty."1306

Hay dismissed further proceedings against Smith and Blennerhassett on the indictments for misdemeanor, and then moved to commit Burr and his associates upon the charge of treason by "levying war" within the jurisdiction of the United States Court for the District of Ohio.1307 On this motion, Marshall, as an examining magistrate, gave the Government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. Blennerhassett thought that Marshall was conciliating "public prejudice."1308 Burr told his counsel that the Chief Justice "did not for two days together understand either the questions or himself … and should in future be put right by strong language." So angered was he with Marshall's "wavering," that at times "Burr … would not trust himself to rise up to sum up and condense the forces displayed by his counsel, into compact columns, after the engagement, toward the close of the day, as is generally his practice."1309

Just at this time appeared a pamphlet1310 by Marshall's brother-in-law, Joseph Hamilton Daveiss. Jefferson had removed him from the office of United States Attorney for the District of Kentucky because of Daveiss's failure in his attacks on Burr, and the revengeful Federalist lawyer and politician retaliated by abusing the President, Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's sudden admission of evidence, some saw a direct connection; the previous knowledge Marshall must have had of his brother-in-law's intended assault, inferred because of "the well-known spirit of clanship and co-operation with which the Marshalls and all their connections are so uniformly animated," showed, it was alleged, that the Chief Justice was working with his kinsman to bring down in indiscriminate ruin, Jefferson, Burr, and Wilkinson together.

The last volume of Marshall's "Life of Washington," that "five volumed libel," as Jefferson branded the biography, had recently appeared. Blennerhassett, who, in expressing his own opinions, usually reflected those of his associates, had "no doubt" that the President's perusal of Marshall's last volume and Daveiss's pamphlet "inspired Jefferson with a more deadly hatred of the Marshall faction than he has ever conceived of all the Burrites he ever heard of."1311

The President's partisans in Virginia were prompt to stoke the furnace of his wrath. William Thompson of Petersburgh1312 wrote a brief "view" of the Burr trial and sent "the first 72. pages" to Jefferson, who read them "with great satisfaction" and clamored for more.1313 Marshall's conduct should indeed fill everybody "with alarm," wrote Jefferson in reply. "We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery have a more difficult task than has been now accomplished to warp the text of the law to the will of him who is to construe it. Our case too is the more desperate as to attempt to make the law plainer by amendment is only throwing out new materials for sophistry."1314

The Federalists in Washington, fast dwindling in power and number, experienced as much relief as their chronic melancholia permitted them to enjoy. "Had the late vice president and two senators been convicted and executed for treason, it would in the opinion of Europe, have reflected disgrace upon our country," notes Senator Plumer in his diary.1315

Hay, on the other hand, thought that "a correct and perspicuous legal history of this trial would be a valuable document in the hands of intelligent legislators," but that "among others it might perhaps do mischief. It might produce a sentiment toward all judicial system and law itself, the operation of which might perhaps be fatal to the tranquillity and good order of Society."1316

On October 20, Marshall delivered his last opinion in the Burr trials. It was upon the Government's motion to commit Burr and his associates for treason and misdemeanor committed on the dismal island at the mouth of the Cumberland, where Burr had first greeted his little band of settlers and potential adventurers. He must grant the motion, Marshall said, "unless it was perfectly clear that the act was innocent." If there was any doubt, the accused must be held. The Chief Justice then carefully analyzed all the evidence.1317 He concluded that Burr's purposes were to settle the Washita lands and to invade Mexico if opportunity offered, perhaps, however, only in the event of war with Spain. But whether this was so ought to be left to the jury; Marshall would "make no comment upon it which might, the one way or the other, influence their judgment."1318 He therefore would commit Burr and Blennerhassett "for preparing and providing the means for a military expedition" against Spain.

"After all, this is a sort of drawn battle," Burr informed Theodosia. "This opinion was a matter of regret and surprise to the friends of the chief justice and of ridicule to his enemies – all believing that it was a sacrifice of principle to conciliate Jack Cade. Mr. Hay immediately said that he should advise the government to desist from further prosecution."1319

If Marshall disappointed Burr, he infuriated Jefferson. In the closing words of his opinion the Chief Justice flung at the President this challenge: "If those whose province and duty it is to prosecute offenders against the laws of the United States shall be of the opinion that a crime of a deeper dye has been committed, it is at their choice to act in conformity with that opinion" – in short, let Jefferson now do his worst.

Marshall's final opinion and his commitment of Burr, under bail, to be tried in Ohio for possible misdemeanor at the mouth of the Cumberland should a grand jury indict him for that offense, disgusted Burr. Indeed he was so "exasperated" that "he was rude and insulting to the Judge."1320 Nor did Marshall's friends in Richmond feel differently. They "are as much dissatisfied," records Blennerhassett, "with his opinion yesterday as Government has been with all his former decisions. He is a good man, and an able lawyer, but timid and yielding under the fear of the multitude, led … by the vindictive spirit of the party in power."1321

Burr gave the bond of five thousand dollars required by Marshall, but in Ohio the Government declined to pursue the prosecution.1322 Burr put the whole matter out of his mind as a closed incident, left Richmond, and started anew upon the execution of his one great plan as though the interruption of it had never happened.

Marshall hurried away to the Blue Ridge. "The day after the commitment of Colo. Burr for a misdemeanor I galloped to the mountains," he tells Judge Peters. During the trial Peters had sent Marshall a volume of his admiralty decisions; and when he returned from his belated vacation, the Chief Justice acknowledged the courtesy: "I have as yet been able only to peep into the book… I received it while fatigued and occupied with the most unpleasant case which has ever been brought before a Judge in this or perhaps any other country, which affected to be governed by laws, since the decision of which I have been entirely from home… I only returned in time to perform my North Carolina Circuit which terminates just soon enough to enable me to be here to open the Court for the antient dominion. Thus you perceive I have sufficient bodily employment to prevent my mind from perplexing itself about the attentions paid me in Baltimore and elsewhere.1323

"I wish I could have had as fair an opportunity to let the business go off as a jest here as you seem to have had in Pennsylvania: but it was most deplorably serious & I could not give the subject a different aspect by treating it in any manner which was in my power. I might perhaps have made it less serious to my self by obeying the public will instead of the public law & throwing a little more of the sombre upon others."1324

While Marshall was resting in the mountains, Jefferson was writing his reply to the last challenge of the Chief Justice.1325 In his Message to Congress which he prepared immediately after the Burr trials, he urged the House to impeach Marshall. He felt it to be his duty, he said, to transmit a record of the Burr trial. "Truth & duty alone extort the observation that wherever the laws were appealed to in aid of the public safety, their operation was on behalf of those only against whom they were invoked." From the record "you will be enabled to judge whether the defect was in the testimony, or in the laws, or whether there is not a radical defect in the administration of the law? And wherever it shall be found the legislature alone can apply or originate the remedy.

"The framers of our constitution certainly supposed they had guarded, as well their government against destruction by treason, as their citizens against oppression under pretence of it: and if the pliability of the law as construed in the case of Fries,1326 and it's wonderful refractoriness as construed in that of Burr, shew that neither end has been attained, and induce an awful doubt whether we all live under the same law. The right of the jury too to decide law as well as fact seems nugatory without the evidence pertinent to their sense of the law. If these ends are not attained it becomes worthy of enquiry by what means more effectual they may be secured?"1327