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

993

Giles to Jefferson, April 6, 1807, Anderson, 110. The date is given in Jefferson to Giles, April 20, 1807, Works: Ford, x, 383.

994

Parton: Burr, 455.

995

"Altho' at first he proposed a separation of the Western country, … yet he very early saw that the fidelity of the Western country was not to be shaken and turned himself wholly towards Mexico and so popular is an enterprize on that country in this, that we had only to be still, & he could have had followers enough to have been in the city of Mexico in 6. weeks." (Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807, Works: Ford, x, 381-82.)

In this same letter Jefferson makes this amazing statement: "If we have kept our hands off her [Spain] till now, it has been purely out of respect for France… We expect therefore from the friendship of the emperor [Napoleon] that he will either compel Spain to do us justice, or abandon her to us. We ask but one month to be in … the city of Mexico."

996

McCaleb, 325.

997

See infra, 476-77; also vol. iv, chap. i, of this work.

998

See Nicholson to Monroe, April 12, 1807, Adams: Randolph, 216-18. Plumer notes "the rancor of his personal and political animosities." (Plumer, 356.)

999

Jefferson to James Bowdoin, U.S. Minister to Spain, April 2, 1807, Works: Ford, x, 382.

1000

This was flatly untrue. No process to obtain evidence or to aid the prosecution in any way was ever denied the Administration. This statement of the President was, however, a well-merited reflection on the tyrannical conduct of the National judges in the trials of men for offenses under the Sedition Law and even under the common law. (See supra, chap. i.) But, on the one hand, Marshall had not then been appointed to the bench and was himself against the Sedition Law (see vol. ii, chap. xi, of this work); and, on the other hand, Jefferson had now become as ruthless a prosecutor as Chase or Addison ever was.

1001

These were: "1. The enlistment of men in a regular way; 2. the regular mounting of guard round Blennerhassett's island; … 3. the rendezvous of Burr with his men at the mouth of the Cumberland; 4. his letter to the acting Governor of Mississippi, holding up the prospect of civil war; 5. his capitulation, regularly signed, with the aides of the Governor, as between two independent and hostile commanders."

1002

The affidavits in regard to what happened on Blennerhassett's island would necessarily be lodged in Richmond, since the island was in Virginia and the United States Court for the District of that State alone had jurisdiction to try anybody for a crime committed within its borders.

Even had there been any doubt as to where the trial would take place, the Attorney-General would have held the affidavits pending the settlement of that point; and when the place of trial was determined upon, promptly dispatched the documents to the proper district attorney.

1003

The reference is to the amendment to the Constitution urged by Jefferson, and offered by Randolph in the House, providing that a judge should be removed by the President on the address of both Houses of Congress. (See supra, chap. iv, 221.)

1004

Jefferson to Giles, April 20, 1807, Works: Ford, x, 383-88.

1005

See Parton: Burr, 456-57. "The real prosecutor of Aaron Burr, throughout this business, was Thomas Jefferson, President of the United States, who was made President of the United States by Aaron Burr's tact and vigilance, and who was able therefore to wield against Aaron Burr the power and resources of the United States." (Ib. 457.) And see McCaleb, 361.

1006

Jefferson to the Secretary of State, April 14, 1807, Works: Ford, x, 383.

1007

Jenkinson: Aaron Burr, 282-83.

1008

Jefferson to "Bollman," Jan. 25, 1807, Davis, ii, 388.

1009

Bollmann's narrative, Davis, ii, 389.

1010

McCaleb, 331.

1011

Jefferson to the United States District Attorney for Virginia, May 20, 1807, Works: Ford, x, 394-401.

Bollmann, in open court, scornfully declined to accept the pardon. (See infra, 452.)

1012

Wilkinson was then en route by sea to testify against Burr before the grand jury.

1013

Mordecai: Richmond in By-Gone Days, 68.

1014

According to a story, told more than a century after the incident occurred, Marshall did not know, when he accepted Wickham's invitation, that Burr was to be a guest, but heard of that fact before the dinner. His wife, thereupon, advised him not to go, but, out of regard for Wickham, he attended. (Thayer: John Marshall, 80-81.)

This tale is almost certainly a myth. Professor Thayer, to whom it was told by an unnamed descendant of Marshall, indicates plainly that he had little faith in it.

The facts that, at the time, even the Enquirer acquitted Marshall of any knowledge that Burr was to be present; that the prudence of the Chief Justice was admitted by his bitterest enemies; that so gross an indiscretion would have been obvious to the most reckless; that Marshall, of all men, would not have embarrassed himself in such fashion, particularly at a time when public suspicion was so keen and excitement so intense – render it most improbable that he knew that Burr was to be at the Wickham dinner.

1015

Enquirer, April 10 and 28, 1807.

1016

See vol. i, 201, of this work.

1017

Tobacco chewing and smoking in court-rooms continued in most American communities in the South and West down to a very recent period.

1018

Address of John Tyler on "Richmond and its Memories," Tyler, i, 219.

1019

Irving was twenty-four years old when he reported the Burr trial.

1020

Blennerhassett Papers: Safford, 465. Marshall made this avowal to Luther Martin, who personally told Blennerhassett of it.

1021

Judge Francis M. Finch, in Dillon, i, 402.

"The men who framed that instrument [Constitution] remembered the crimes that had been perpetrated under the pretence of justice; for the most part they had been traitors themselves, and having risked their necks under the law they feared despotism and arbitrary power more than they feared treason." (Adams: U.S. iii, 468.)

1022

A favorite order from the bench for the execution of the condemned was that the culprit should be drawn prostrate at the tails of horses through the jagged and filthy streets from the court-room to the place of execution; the legs, arms, nose, and ears there cut off; the intestines ripped out and burned "before the eyes" of the victim; and finally the head cut off. Details still more shocking were frequently added. See sentences upon William, Lord Russell, July 14, 1683 (State Trials Richard II to George I, vol. 3, 660); upon Algernon Sidney, November 26, 1683 (ib. 738); upon William, Viscount Stafford, December 7, 1680 (ib. 214); upon William Stayley, November 21, 1678 (ib. vol. 2, 656); and upon other men condemned for treason.

1023

Even in Philadelphia, after the British evacuation of that place during the Revolution, hundreds were tried for treason. Lewis alone, although then a very young lawyer, defended one hundred and fifty-two persons. (See Chase Trial, 21.)

1024

"In the English law … the rule … had been that enough heads must be cut off to glut the vengeance of the Crown." (Isaac N. Phillips, in Dillon, ii, 394.)

1025

Iredell's charge to the Georgia Grand Jury, April 26, 1792, Iredell: McRee, ii, 349; and see Iredell's charge to the Massachusetts Grand Jury, Oct. 12, 1792, ib. 365.

1026

See his concurrence with Judge Peters's charge in the Fries case, Wharton: State Trials, 587-91; and Peters's opinion, ib. 586; also see Chase's charge at the second trial of Fries, ib. 636.

1027

"The President's popularity is unbounded, and his will is that of the nation… Such is our present infatuation." (Nicholson to Randolph, April 12, 1807, Adams: Randolph, 216-17.)

1028

Hildreth, iv, 692.

1029

Parton: Burr, 458.

1030

Parton: Jackson, i, 333.

1031

Jackson to Anderson, June 16, 1807, ib. 334.

1032

Ib. 335.

1033

Ib. 334-36.

1034

Parton: Burr, 606-08; see also Parton: Jackson, ii, 258-59, 351-54; and Davis, ii, 433-36.

1035

Address of John Tyler, "Richmond and its Memories," Tyler, i, 219.

1036

Parton: Burr, 459.

1037

Memoirs of Lieut. – General Scott, i, 13.

1038

Memoirs of Lieut. – General Scott, i, 13, 16.

1039

See Great American Lawyers: Lewis, ii, 268-75.

Kennedy says that the stories of Wirt's habits of intoxication were often exaggerated (Kennedy, i, 68); but see his description of the bar of that period and his apologetic reference to Wirt's conviviality (ib. 66-67).

1040

Blennerhassett Papers: Safford, 426.

1041

Parton: Burr, 461.

1042

Burr Trials, i, 31-32.

1043

Ib. 37.

1044

Ib. 38.

1045

Meaning the partiality of the persons challenged, such as animosity toward the accused, conduct showing bias against him, and the like. See Bouvier's Law Dictionary: Rawle, 3d revision, ii, 1191.

1046

Burr Trials, i, 38-39.

1047

Ib. 41-42.

1048

Burr Trials, i, 41-42.

1049

Jefferson to Nicholas, Feb. 28, 1807, Works: Ford, x, 370-71.

1050

Burr Trials, i, 43.

1051

Ib. 44.

1052

In view of the hatred which Marshall knew Randolph felt toward Jefferson, it is hard to reconcile his appointment with the fairness which Marshall tried so hard to display throughout the trial. However, several of Jefferson's most earnest personal friends were on the grand jury, and some of them were very powerful men. Also fourteen of the grand jury were Republicans and only two were Federalists.

1053

Burr Trials, i, 45-46. This grand jury included some of the foremost citizens of Virginia. The sixteen men who composed this body were: John Randolph, Jr., Joseph Eggleston, Joseph C. Cabell, Littleton W. Tazewell, Robert Taylor, James Pleasants, John Brockenbrough, William Daniel, James M. Garnett, John Mercer, Edward Pegram, Munford Beverly, John Ambler, Thomas Harrison, Alexander Shephard, and James Barbour.

1054

Marshall's error in this opinion, or perhaps the misunderstanding of a certain passage of it (see supra, 350), caused him infinite perplexity during the trial; and he was put to his utmost ingenuity to extricate himself. The misconstruction by the grand jury of the true meaning of Marshall's charge was one determining cause of the grand jury's decision to indict Burr. (See infra, 466.)

1055

Burr Trials, i, 47-48.

1056

Hay to Jefferson, May 25, 1807, Jefferson MSS. Lib. Cong.

1057

Burr Trials, i, 48-51.

1058

Burr Trials, i, 53-54.

1059

Irving to Paulding, June 22, 1807, Life and Letters of Washington Irving: Irving, i, 145.

1060

Burr Trials, i, 57-58.

1061

Burr Trials, i, 58-76.

1062

"I … contented myself … with … declaring to the Audience (for two thirds of our speeches have been addressed to the people) that I was prepared to give the most direct contradiction to the injurious Statements." (Hay to Jefferson, June 14, 1807, giving the President an account of the trial, Jefferson MSS. Lib. Cong.)

1063

He was hanged in effigy soon after the trial. (See infra, 539.)

1064

It must be remembered that Marshall himself declared, in the very midst of the contest, that it would be dangerous for a jury to acquit Burr. (See supra, 401.)

1065

He had narrowly escaped impeachment (see supra, chap. iv), and during the trial he was openly threatened with that ordeal (see infra, 500).

1066

Burr Trials, i, 79-81.

1067

See supra, 390-91.

1068

Jefferson to Hay, May 26, 1807, Works: Ford, x, footnote to 394-95.

1069

Burr Trials, i, 81-82.

1070

Ib. 82.

1071

Ib. 84-85.

1072

Burr Trials, i, 91.

1073

Ib. 94.

1074

Ib. 95-96.

1075

Burr Trials, i, 492-97.

1076

Burr Trials, i, 509-14.

1077

Burr Trials, i, 97-101.

1078

Ib. 97.

1079

Md. Hist. Soc. Fund-Pub. No. 24, 22.

1080

Blennerhassett Papers: Safford, 468-69.

1081

Burr Trials, i, 101-04.

1082

Burr Trials, i, 105.

1083

The men who went on this second bail bond for Burr were: William Langburn, Thomas Taylor, John G. Gamble, and Luther Martin. (Ib. 106.)

1084

Blennerhassett Papers: Safford, 315-16.

1085

Eaton: Prentiss, 396-403; 4 Cranch, 463-66.

1086

Blennerhassett Papers: Safford, 425.

1087

Jefferson to Hay, May 28, 1807, Works: Ford, x, 395-96.

1088

Jefferson to Eppes, May 28, 1807, Works: Ford, x, 412-13.

1089

Hay to Jefferson, May 31, 1807, Jefferson MSS. Lib. Cong.

1090

Jefferson to Hay, June 2, 1807, Works: Ford, x, 396-97.

1091

Same to same, June 5, 1807, ib. 397-98; Hay to Jefferson, same date, Jefferson MSS. Lib. Cong.; and others cited, infra.

1092

Jefferson to Dayton, Aug. 17, 1807, Works: Ford, x, 478.

1093

Irving to Mrs. Hoffman, June 4, 1807, Irving, i, 142.

1094

Ib.

1095

Burr had seen the order in the Natchez Gazette. It was widely published.

1096

Burr Trials, i, 113-14.

1097

Burr Trials, i, 115-18.

1098

Hay to Jefferson, June 9, 1807, Jefferson MSS. Lib. Cong.

1099

Jefferson to Hay, June 12, 1807, Works: Ford, x, 398-99.

1100

Burr Trials, i, 124-25.

1101

Irving to Mrs. Hoffman, June 4, 1807, Irving, i, 143.

1102

Martin here refers to what he branded as "the farcical trials of Ogden and Smith." In June and July, 1806, William S. Smith and Samuel G. Ogden of New York were tried in the United States Court for that district upon indictments charging them with having aided Miranda in his attack on Caracas, Venezuela. They made affidavit that the testimony of James Madison, Secretary of State, Henry Dearborn, Secretary of War, Robert Smith, Secretary of the Navy, and three clerks of the State Department, was necessary to their defense. Accordingly these officials were summoned to appear in court. They refused, but on July 8, 1806, wrote to the Judges – William Paterson of the Supreme Court and Matthias B. Talmadge, District Judge – that the President "has specially signified to us that our official duties cannot … be at this juncture dispensed with." (Trials of Smith and Ogden: Lloyd, stenographer, 6-7.)

The motion for an attachment to bring the secretaries and their clerks into court was argued for three days. The court disagreed, and no action therefore was taken. (Ib. 7-90.) One judge (undoubtedly Paterson) was "of opinion, that the absent witnesses should be laid under a rule to show cause, why an attachment should not be issued against them"; the other (Talmadge) held "that neither an attachment in the first instance, nor a rule to show cause ought to be granted." (Ib. 89.)

Talmadge was a Republican, appointed by Jefferson, and charged heavily against the defendants (ib. 236-42, 287); but they were acquitted.

The case was regarded as a political prosecution, and the refusal of Cabinet officers and department clerks to obey the summons of the court, together with Judge Talmadge's disagreement with Justice Paterson – who in disgust immediately left the bench under plea of ill-health (ib. 90) – and the subsequent conduct of the trial judge, were commented upon unfavorably. These facts led to Martin's reference during the Burr trial.

1103

Burr Trials, i, 127-28.

1104

Burr Trials, i, 130-33.

1105

Ib. 134-35.

1106

Burr Trials, i, 137-45.

1107

Burr Trials, i, 147-48.

1108

Ib. 148-52.

1109

Burr Trials, i, 153-64.

1110

Burr Trials, i, 164-67.

1111

Ib. 173-76.

1112

Burr Trials, i, 177.

1113

See infra, 455-56.

1114

Burr Trials, i, 181-83.

1115

United States vs. Smith and Ogden. (See supra, 436, foot-note.)

1116

Burr Trials, i, 187-88.

1117

Burr Trials, i, 189.

1118

Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.

1119

Ambler: Thomas Ritchie – A Study in Virginia Politics, 40-41.

1120

Jefferson to Hay, June 17, 1807, Works: Ford, x, 400-01.

1121

Jefferson to Hay, June 19, 1807, Works: Ford, x, 402-03.

1122

Burr Trials, i, 190.

1123

Burr Trials, i, 191-93.

1124

Burr Trials, i, 193-96.

1125

Jefferson to Hay, June 20, 1807, Works: Ford, x, 403-05.

1126

Hay to Jefferson, June 11, 1807, Jefferson MSS. Lib. Cong. This letter announced Wilkinson's landing at Hampton Roads.

Wilkinson reached Richmond by stage on Saturday, June 13. He was accompanied by John Graham and Captain Gaines, the ordinary witnesses having been sent ahead on a pilot boat. (Graham to Madison, May 11, 1807, "Letters in Relation," MSS. Lib. Cong.) Graham incorrectly dated his letter May 11 instead of June 11. He had left New Orleans in May, and in the excitement of landing had evidently forgotten that a new month had come.

Wilkinson was "too much fatigued" to come into court. (Burr Trials, i, 196.) By Monday, however, he was sufficiently restored to present himself before Marshall.

1127

Irving to Paulding, June 22, 1807, Irving, i, 145.

1128

Wilkinson to Jefferson, June 17, 1807, "Letters in Relation," MSS. Lib. Cong.

The court reporter impartially states that Wilkinson was "calm, dignified, and commanding," and that Burr glanced at him with "haughty contempt." (Burr Trials, i, footnote to 197.)

1129

"Gen: Jackson of Tennessee has been here ever since the 22ḍ [of May] denouncing Wilkinson in the coarsest terms in every company." (Hay to Jefferson, June 14, 1807, Jefferson MSS. Lib. Cong.)

Hay had not the courage to tell the President that Jackson had been as savagely unsparing in his attacks on Jefferson as in his thoroughly justified condemnation of Wilkinson.

1130

Truxtun left the Navy in 1802, and, at the time of the Burr trial, was living on a farm in New Jersey. No officer in any navy ever made a better record for gallantry, seamanship, and whole-hearted devotion to his country. The list of his successful engagements is amazing. He was as high-spirited as he was fearless and honorable.

In 1802, when in command of the squadron that was being equipped for our war with Tripoli, Truxtun most properly asked that a captain be appointed to command the flagship. The Navy was in great disfavor with Jefferson and the whole Republican Party, and naval affairs were sadly mismanaged or neglected. Truxtun's reasonable request was refused by the Administration, and he wrote a letter of indignant protest to the Secretary of the Navy. To the surprise and dismay of the experienced and competent officer, Jefferson and his Cabinet construed his spirited letter as a resignation from the service, and, against Truxtun's wishes, accepted it as such. Thus the American Navy lost one of its ablest officers at the very height of his powers. Truxtun at the time was fifty-two years old. No single act of Jefferson's Administration is more discreditable than this untimely ending of a great career.

1131

This man was the elder Decatur, father of the more famous officer of the same name. He had had a career in the American Navy as honorable but not so distinguished as that of Truxtun; and his service had been ended by an unhappy circumstance, but one less humiliating than that which severed Truxtun's connection with the Navy.

The unworthiest act of the expiring Federalist Congress of 1801, and one which all Republicans eagerly supported, was that authorizing most of the ships of the Navy to be sold or laid up and most of the naval officers discharged. (Act of March 3, 1801, Annals, 6th Cong. 1st and 2d Sess. 1557-59.) Among the men whose life profession was thus cut off, and whose notable services to their country were thus rewarded, was Commodore Stephen Decatur, who thereafter engaged in business in Philadelphia.

1132

It was under Stoddert's administration of the Navy Department that the American Navy was really created. Both Truxtun and Decatur won their greatest sea battles in our naval war with France, while Stoddert was Secretary. The three men were close friends and all of them warmly resented the demolition of the Navy and highly disapproved of Jefferson, both as an individual and as a statesman. They belonged to the old school of Federalists. Three more upright men did not live.