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

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.

1133

See supra, 304-05.

1134

A popular designation of Eaton after his picturesque and heroic Moroccan exploit.

1135

Truxtun at the time of his conversations with Burr was in the thick of that despair over his cruel and unjustifiable separation from the Navy, which clouded his whole after life. The longing to be once more on the quarter-deck of an American warship never left his heart.

1136

Burr Trials, i, 486-91. This abstract is from the testimony given by Commodore Truxtun before the trial jury, which was substantially the same as that before the grand jury.

1137

Annals, 10th Cong. 1st Sess. 452-63. See note 1, next page.

1138

Wilkinson's testimony on the trial for misdemeanor (Annals, 10th Cong. 1st Sess, 520-22) was the same as before the grand jury.

"Wilkinson is now before the grand jury, and has such a mighty mass of words to deliver himself of, that he claims at least two days more to discharge the wondrous cargo." (Irving to Paulding, June 22, 1807, Irving, i, 145.)

1139

See McCaleb, 335. Politics alone saved Wilkinson. The trial was universally considered a party matter, Jefferson's prestige, especially, being at stake. Yet seven out of the sixteen members of the grand jury voted to indict Wilkinson. Fourteen of the jury were Republicans, and two were Federalists.

1140

Randolph to Nicholson, June 25, 1807, Adams: Randolph, 221-22. Speaking of political conditions at that time, Randolph observed: "Politics have usurped the place of law, and the scenes of 1798 [referring to the Alien and Sedition laws] are again revived."

1141

Testimony of Joseph C. Cabell, one of the grand jury. (Annals, 10th Cong. 1st Sess. 677.)

1142

"Mr. Swartwout … discovered the utmost frankness and candor in his evidence… The very frank and candid manner in which he gave his testimony, I must confess, raised him very high in my estimation, and induced me to form a very different opinion of him from that which I had before entertained." (Testimony of Littleton W. Tazewell, one of the grand jury, Annals, 10th Cong. 1st Sess. 633.)

"The manner of Mr. Swartwout was certainly that of conscious innocence." (Testimony of Joseph C. Cabell, one of the grand jury, ib. 677.)

1143

See supra, 426-27.

1144

Forty-eight witnesses were examined by the grand jury. The names are given in Brady: Trial of Aaron Burr, 69-70.

1145

Burr Trials, i, 305-06; also "Bills of Indictment," MSS. Archives of the United States Court, Richmond, Va.

The following day former Senator Jonathan Dayton of New Jersey, Senator John Smith of Ohio, Comfort Tyler and Israel Smith of New York, and Davis Floyd of the Territory of Indiana, were presented for treason. How Bollmann, Swartwout, Adair, Brown, and others escaped indictment is only less comprehensible than the presentment of Tyler, Floyd, and the two Smiths for treason.

1146

Blennerhassett Papers: Safford, 314. "Two of the most respectable and influential of that body, since it has been discharged, have declared they mistook the meaning of Chief Justice Marshall's opinion as to what sort of acts amounted to treason in this country, in the case of Swartwout and Ogden [Bollmann]; that it was under the influence of this mistake they concurred in finding such a bill against A. Burr, which otherwise would have probably been ignored."

1147

Burr Trials, i, 327-28.

1148

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

1149

Burr Trials, i, 197-357.

1150

This was one of Luther Martin's characteristic outbursts. Every word of it, however, was true.

1151

Burr Trials, i, 197-357.

1152

Blennerhassett Papers: Safford, 298.

Blennerhassett wrote this comment when the trial was nearly over. He said that two hundred men acted as a bodyguard to Burr on his way to court each day.

1153

Parton: Burr, 481.

1154

April 1, 1807, "Register," Plumer MSS. Lib. Cong.

1155

Swartwout was then twenty-four years old.

1156

Parton: Jackson, i, 335.

1157

Swartwout challenged Wilkinson after the trial was over.

1158

See brief account of this incident, including Swartwout's open letter to Wilkinson, in Blennerhassett Papers: Safford, footnote to 459-60.

1159

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

1160

Jefferson to Wilkinson, June 21, 1807, Wilkinson: Memoirs, ii, Appendix xxx. Jefferson's letter also contains the following: "You have, indeed, had a fiery trial at New Orleans, but it was soon apparent that the clamorous were only the criminal, endeavouring to turn the public attention from themselves, and their leader, upon any other object… Your enemies have filled the public ear with slanders, and your mind with trouble, on that account. The establishment of their guilt, will … place you on higher ground in the public estimate, and public confidence."

1161

Burr Trials, i, 227-53.

1162

Ib. 257-67. Wilkinson was then giving his testimony before the grand jury.

1163

Ib. 268-72.

1164

Ib. 276-77.

1165

Ib. 277-305.

1166

See supra, 455-56.

1167

Burr Trials, i, 306.

1168

Ib. 308.

1169

Irving to Miss Fairlie, July 7, 1807, Irving, i, 152.

1170

Burr Trials, i, 312.

1171

Ib. 313-50.

1172

Burr Trials, i, 350-54.

1173

Ib. 354-57.

1174

See Adams: U.S. ii, chap. i; Channing: Jeff. System, 189-94; Hildreth, iii, 402; and see vol. iv, chap. i, of this work.

1175

Jefferson's Proclamation, July 2, 1807, Works: Ford, x, 434.

1176

Randolph to Nicholson, June 25, 1807, Adams: John Randolph, 222.

1177

Wilkinson to Jefferson, June 29, 1807, "Letters in Relation," MSS. Lib. Cong.

1178

Jefferson to Congress, Annals, 10th Cong. 1st Sess. 9.

1179

At this time Jefferson wrote curious letters, apparently to explain, by inference, to his friends in France his want of energy in the Chesapeake affair and the vigor he displayed in the prosecution of Burr. "Burr's conspiracy has been one of the most flagitious of which history will ever furnish an example… Yet altho' there is not a man in the U S who is not satisfied of the depth of his guilt, such are the jealous provisions of our laws in favor of the accused, … that I question if he can be convicted." (Jefferson to Du Pont de Nemours, July 14, 1807, Works: Ford, x, 461; also see same to Lafayette, same date, ib. 463.) It will be observed that in these letters Jefferson condemns the laxity of American laws instead of blaming Marshall.

1180

Burr Trials, i, 357-59.

1181

Irving to Miss Fairlie, July 7, 1807, Irving, i, 153. "The only reason given for immuring him in this abode of thieves, cut-throats, and incendiaries," says Irving, "was that it would save the United States a couple of hundred dollars (the charge of guarding him at his lodgings), and it would insure the security of his person."

1182

"Burr lives in great style, and sees much company within his gratings, where it is as difficult to get an audience as if he really were an Emperor." (Blennerhassett Papers: Safford, 324.) At first, however, his treatment was very severe. (See Irving to Miss Fairlie, July 7, 1807, Irving, i, 153.)

1183

Burr to his daughter, July 3, 1807, Davis, ii, 409.

1184

Burr to his daughter, July 6, 1807, Davis, ii, 410.

1185

Same to same, July 24, 1807, ib. 410.

1186

At a Fourth of July celebration in Cecil County, Maryland, toasts were proposed wishing for the grand jury "a crown of immortal glory" for "their zeal and patriotism in the cause of liberty"; hoping that Martin would receive "an honorable coat of tar, and a plumage of feathers" as a reward for "his exertions to preserve the Catiline of America"; and praying that Burr's treachery to his country might "exalt him to the scaffold, and hemp be his escort to the republic of dust and ashes." (Parton: Burr, 478.)

1187

See vol. iv, chap. i, of this work. Also supra, chap. iii.

1188

Marshall to the Associate Justices of the Supreme Court, June 29, 1807, as quoted by Horace Gray, Associate Justice of the Supreme Court, in Dillon, i, 72.

1189

Parton: Burr, 483.

1190

Burr Trials, i, 369-70.

1191

Ib. 370-85.

1192

Ib. 385-414.

1193

Burr Trials, i, 414-20.

1194

Hay to Jefferson, Aug. 11, 1807, Jefferson MSS. Lib. Cong.

1195

Burr Trials, i, 433-51.

1196

Hay had announced that Eaton's testimony would be to the same effect as his deposition.

1197

Burr Trials, i, 452-69.

1198

Burr Trials, i, 469-72.

1199

Blennerhassett Papers: Safford, 343.

1200

It was this farrago, published in every newspaper, that had influenced the country only less than Jefferson's Special Message to Congress.

1201

Commodore Decatur's testimony was almost identical with that of Truxtun. More convincing still, General Adair, writing before the trial began, told substantially the same story. (Adair's statement, March, 1807, as quoted in Parton: Burr, footnote to 493.)

1202

For the full Morgan testimony, see Burr Trials, i, 497-506.

1203

Burr Trials, i, 514-18.

1204

Ib. 518-26.

1205

Burr Trials, i, 527-28.

1206

Belknap was undoubtedly one of those whom Poole saw cross the stream. Woodbridge and Dana were the others.

1207

Burr Trials, i, 529.

1208

These young men were thinking of joining the expedition.

1209

The physician who accompanied the party.

1210

Burr Trials, i, 528-29.

1211

Ib. 529.

1212

Burr Trials, i, 533-34.

1213

Ib. 555-56.

1214

Burr Trials, i, 557.

1215

Ib. ii, 3-12.

1216

Ib. 25.

1217

Ib. 26-27.

1218

Blennerhassett Papers: Safford, 354-55.

1219

Alston's description in ib. 360.

1220

Burr Trials, ii, 42.

1221

Blennerhassett Papers: Safford, 360.

1222

The temperature was very high throughout the trial. One night Blennerhassett was overcome by it. (Ib. 319.)

1223

Burr Trials, ii, 57.

1224

Ib. 57-59.

1225

Burr Trials, ii, 61-65.

1226

Ib. 92.

1227

See Burr Trials, ii, 96-98.

For this famous passage of Wirt's speech, see Appendix E.

Burr was vastly amused by it and it became "a standing joke with him for the rest of his life." (See Parton: Burr, 506.) But it was no "joke" – standing or otherwise – to the people. They believed Wirt's imagery to be a statement of the facts.

1228

"Wirt raised his reputation yesterday, as high as MacRae sunk his the day before." (Blennerhassett Papers: Safford, 366.)