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

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.)

1229

Burr Trials, ii, 123-24.

1230

See Hay's complaint that Botts talked so fast that he could not make notes on his points. (Ib. 194.)

1231

Burr Trials, ii, 128-35.

1232

Ib. 168. Another story "propagated through the crowd" was that Burr had, by his "emissaries," attempted to poison with laudanum one of the Government's witnesses – this although the particular witness had been brought to Richmond to testify only that Wilkinson was not in the pay of Spain. (Blennerhassett Papers: Safford, 367.)

1233

Burr Trials, ii, 164-73.

1234

Botts here refers to the public outcry against Jefferson, while Governor during the Revolution, that nearly resulted in his impeachment. (See vol. i, 143-44, of this work.)

1235

Burr Trials, ii, 135-92.

1236

Ib. 224.

1237

Ib. 192-236.

1238

Ib. 193-94.

1239

Ib. 200-19, 235.

1240

See vol. ii, 201, 428, of this work.

1241

Burr Trials, ii, 237-80.

1242

Blennerhassett, in his diary, makes frequent mention of Martin's drinking: "Martin was both yesterday and to-day more in his cups than usual, and though he spared neither his prudence nor his feelings, he was happy in all his hits." (Blennerhassett Papers: Safford, 438.)

"I … recommended our brandy … placing a pint tumbler before him. No ceremonies retarded the libation." (Ib. 377.)

"Luther Martin has just made his final immersion into the daily bath of his faculties." (Ib. 463.)

1243

Burr Trials, ii, 260.

1244

Burr Trials, ii, 262.

1245

Ib. 275-79; see also 339-42, 344-48.

1246

Burr Trials, ii, 334.

1247

Ib. 377.

1248

One of those who told Martin this was Marshall himself. See supra, 401.

1249

Burr Trials, ii, 377-78.

1250

Randolph made another speech, but it was of no moment.

1251

See supra, footnote to 499.

1252

Blennerhassett Papers: Safford, 367.

1253

Burr Trials, ii, 401; also in 4 Cranch, 470.

1254

25th, of Edward III.

1255

Burr Trials, ii, 402-03; 4 Cranch, 470.

1256

Burr Trials, ii, 403; 4 Cranch, 471.

1257

Burr Trials, ii, 404-05; 4 Cranch, 472.

1258

The doctrine that accessories are as guilty as principals.

1259

Burr Trials, ii, 406-08; 4 Cranch, 476. This reference is to Jefferson's explanation of Marshall's opinion in Bollmann and Swartwout, which Giles and other Republican leaders were proclaiming throughout Virginia. It had been adopted by the grand jury; and it was this construction of Marshall's language under which they returned the bills of indictment for treason. Had the grand jury understood the law to be as Marshall was now expounding it, Burr would not have been indicted for treason.

1260

Burr Trials, ii, 409; 4 Cranch, 476.

1261

Burr Trials, ii, 409-13; 4 Cranch, 477-80.

1262

Burr Trials, ii, 415; 4 Cranch, 481.

1263

Burr Trials, ii, 415-23; 4 Cranch, 482-88.

1264

Burr Trials, ii, 425; 4 Cranch, 490.

1265

This part of Marshall's opinion (Burr Trials, ii, 425-34; 4 Cranch, 490-504) is reproduced in full in Appendix F.

1266

Burr Trials, ii, 426; 4 Cranch, 492.

1267

Burr Trials, ii, 429; 4 Cranch, 494.

1268

Burr Trials, ii, 430; 4 Cranch, 495.

1269

Burr Trials, ii, 436; 4 Cranch, 500.

1270

Burr Trials, ii, 436-37; 4 Cranch, 500. These paragraphs furnish a perfect example of Marshall's method of statement and logic – the exact antithesis plainly put, the repetition of precise words with only the resistless monosyllables, "if" and "then," between them.

1271

Burr Trials, ii, 437; 4 Cranch, 501.

1272

Burr Trials, ii, 443; 4 Cranch, 506.

1273

Burr Trials, ii, 444-45; 4 Cranch, 507.

1274

Burr Trials, ii, 446.

1275

Burr Trials, ii, 446-47. Martin was right; the verdict should have been either "guilty" or "not guilty."

1276

Blennerhassett Papers: Safford, 339.

1277

Burr Trials, ii, 447.

1278

Blennerhassett Papers: Safford, 356-58; and see Adams: U.S. iii, 448, 464-65. Duane was known to have unbounded influence with Jefferson, who ascribed his election to the powerful support given him by the Aurora.

Government agents also tried to seduce Colonel de Pestre, another of Burr's friends, by insinuating "how handsomely the Col. might be provided for in the army, if his principles … were not adverse to the administration." De Pestre's brother-in-law "had been turned out of his place as Clerk in the War Office, because he could not accuse the Col. of Burr-ism." (Blennerhassett Papers: Safford, 328-29.)

1279

Burr Trials, ii, 448-49.

1280

Ib. 455.

1281

Jefferson to Hay, Sept. 4, 1807, as quoted in Adams, U.S. iii, 470; and see Jefferson: Randolph, iv, 102.

1282

Adams: U.S. iii, 470.

1283

See infra, 524.

1284

Burr Trials, ii, 473-80.

1285

Ib. 480. This statement of Botts is of first importance. The whole proceeding on the part of the Government was conspicuously marked by a reliance upon public sentiment to influence court and jury through unceasing efforts to keep burning the fires of popular fear and hatred of Burr, first lighted by Jefferson's Proclamation and Message. Much repetition of this fact is essential, since the nature and meaning of the Burr trial rests upon it.

1286

Burr Trials, ii, 481-503.

1287

Van Santvoord: Sketches of the Lives and Judicial Services of the Chief-Justices of the United States, 379. Yet popular sentiment was the burden of many of the speeches of Government counsel throughout the trial.

1288

Blennerhassett Papers: Safford, 402.

1289

Burr Trials, ii, 504.

1290

Ib. 511.

1291

Jefferson to Hay, no date; but Paul Leicester Ford fixes it between August 7 and 20, 1807. It is, says Ford, "the mere draft of a letter … which may never have been sent, but which is of the utmost importance." (Works: Ford, x, 406-07.) It would seem that Jefferson wrote either to Marshall or Judge Griffin personally, for the first words of his astounding letter to Hay were: "The enclosed letter is written in a spirit of conciliation," etc., etc. Whether or not the President actually posted the letter to Hay, the draft quoted in the text shows the impression which Marshall's order made on Jefferson. (Italics the author's.)

1292

Burr Trials, ii, 513-14.

1293

Ib. 514-33.

1294

This remark of Marshall would seem to indicate that Hay had tried to patch up "a truce" between the President and the Chief Justice, as Jefferson desired him to do. If so, it soon expired.

1295

Burr Trials, ii, 533-37.

1296

Hay to Jefferson, Sept. 5, 1807, Jefferson MSS. Lib. Cong.

1297

The printed record does not show this, but Jefferson, in his letter to Hay, September 7, says: "I received, late last night, your favor of the day before, and now re-enclose you the subpœna."

1298

Jefferson to Hay, Sept. 7, 1807, Works: Ford, x, 408.

1299

For some reason the matter was not again pressed. Perhaps the favorable progress of the case relieved Burr's anxiety. It is possible that the "truce" so earnestly desired by Jefferson was arranged.

1300

Blennerhassett Papers: Safford, 394.

1301

"Today, the Chief Justice has delivered an able, full, and luminous opinion as ever did honor to a judge, which has put an end to the present prosecution." (Blennerhassett Papers: Safford, 403.)

1302

Annals, 10th Cong. 1st Sess. 416-19.

1303

This appears from the record itself. (See Wilkinson's testimony, ib. 512-44; also testimony of Major James Bruff, ib. 589-90.) Blennerhassett, who usually reported faithfully the general impression, notes in his diary: "The General exhibited the manner of a sergeant under a courtmartial, rather than the demeanor of an accusing officer confronted with his culprit." (Blennerhassett Papers: Safford, 422.)

1304

Ib. 418.

1305

Record, MSS. Archives U.S. Circuit Court, Richmond, Va.

1306

Blennerhassett Papers: Safford, 404.

1307

Ib. 409-10.

1308

Ib. 416.

1309

Ib. 412-13.

1310

Daveiss: "A View of the President's Conduct Concerning the Conspiracy of 1806."

Blennerhassett Papers: Safford, 465-66.

1311

Ib. 502.

1312

The brother of John Thompson, author of "The Letters of Curtius" which attacked Marshall in 1798. (See vol. ii, 395-96, of this work.)

1313

Thompson's "view" was published as a series of letters to Marshall immediately after the trial closed. (See infra, 533-35.)