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

1314

Jefferson to Thompson, September 26, 1807, Works: Ford, x, 501-02.

1315

Plumer, Aug. 15, 1807, "Diary," Plumer MSS. Lib. Cong.

1316

Hay to Jefferson, Oct. 15, 1807, Jefferson MSS. Lib. Cong.

1317

This statement is lucid, conspicuously fair, and, in the public mind, would have cleared Burr of any taint of treason, had not Jefferson already crystallized public sentiment into an irrevocable conviction that he was a traitor. (See Annals, 10th Cong. 1st Sess. 766-78.)

1318

Ib.

1319

Burr to his daughter, Oct. 23, 1807, Davis, ii, 411-12.

1320

Hay to Jefferson, Oct. 21, 1807, Jefferson MSS. Lib. Cong.

1321

Blennerhassett Papers: Safford, 301. If this were only the personal opinion of Burr's gifted but untrustworthy associate, it would not be weighty. But Blennerhassett's views while at Richmond, as recorded in his diary, were those of all of Burr's counsel and of the Richmond Federalists.

1322

No wonder the Government abandoned the case. Nearly all the depositions procured by Hay under Jefferson's orders demonstrated that Burr had not the faintest intention of separating the Western States from the Union, or even of attacking Mexico unless war broke out between Spain and the United States. See particularly deposition of Benjamin Stoddert of Maryland, October 9, 1807 (Quarterly Pub. Hist. and Phil. Soc. Ohio, ix, nos. 1 and 2, 7-9); of General Edward Tupper of Ohio, September 7, 1807 (ib. 13-27); and of Paul H. M. Prevost of New Jersey, September 28, 1807 (ib. 28-30).

1323

See infra, 536.

1324

Marshall to Peters, Nov. 23, 1807, Peters MSS. Pa. Hist. Soc.

1325

Hay, for the moment mollified by Marshall's award of two thousand dollars as his fee, had made no further complaint for several days.

1326

See supra, chap. i, 35-36; also vol. ii, 429-30, of this work.

1327

Jefferson's Seventh Annual Message, first draft, Works: Ford, x, 523-24.

1328

See notes of Gallatin and Rodney, Works: Ford, x, footnotes to 503-10.

1329

Jefferson's Seventh Annual Message, second draft, Works: Ford, x, 517. Blennerhassett, and probably Burr, would not have grieved had Marshall been impeached. It would be "penance for that timidity of conduct, which was probably as instrumental in keeping him from imbruing his hands in our blood as it was operative in inducing him to continue my vexations [the commitment of the conspirators to be tried in Ohio], to pacify the menaces and clamorous yells of the cerberus of Democracy with a sop which he would moisten, at least, with the tears of my family." (Blennerhassett Papers: Safford, 465.)

1330

See vol. ii, 464-71, of this work.

1331

"Portrait of the Chief Justice," in the Richmond Enquirer, Nov. 6, 1807. This article fills more than two closely printed columns. It discusses, and not without ability, the supposed errors in Marshall's opinions.

1332

Enquirer, Nov. 24, 1807.

1333

Marshall's Life of Washington.

1334

See vol. ii, 395-96, of this work.

1335

"Letters to John Marshall, Chief Justice of the United States," in the Aurora, reprinted in the Enquirer, Dec. 1, 1807.

1336

Enquirer, Dec. 4, 1807.

1337

Ib. Dec. 8, 1807.

1338

See supra, 525-26.

1339

Enquirer, Dec. 12, 1807.

1340

Blennerhassett Papers: Safford, 475.

1341

Blennerhassett Papers: Safford, 477.

1342

Gathering a few dollars from personal friends, Burr sailed for England, hoping to get from the British Government support for his plans to revolutionize Mexico. At first all went well. Men like Jeremy Bentham and Sir Walter Scott became his friends and admirers. But the hand of Jefferson followed him; and on representations of the American Minister, the British Government ordered him to leave the United Kingdom immediately.

Next he sought the ear of Napoleon; but again he was flouted and insulted by the American diplomatic and consular representatives – he was, they said, "a fugitive from justice." His last sou gone, ragged and often hungry, he managed at last, by the aid of one John Reeves, to secure passage for Boston, where he landed May 4, 1812. Then he journeyed to New York, where he arrived June 30 in abject poverty and utterly ruined. But still his spirit did not give way.

Soon, however, fate struck him the only blow that, until now, ever had brought this iron man to his knees. His passionately beloved little grandson, Aaron Burr Alston, died in June. In December, another and heavier stroke fell. His daughter sailed from Charleston, South Carolina, to join and comfort her father and be comforted by him. Her ship was lost in a storm, and Theodosia the beautiful, the accomplished, the adored, was drowned. Then, at last, the heart of Aaron Burr was broken.

Of the many ridiculous stories told of Burr and his daughter, one was that her ship was captured by pirates and she, ordered to walk the plank, did so with her child in her arms "without hesitation or visible tremor." This absurdity was given credit and currency by Harriet Martineau. (See Martineau: Western Travels, ii, 291-92.) Theodosia's child had died six months before she sailed from Charleston to go to her father, and she embarked in a pilot boat, about which no pirate would have troubled himself.

The remainder of Burr's long life was given to the practice of his profession. His industry, legal learning, and ability, once more secured for him a good business. In 1824, Marshall ruled on an application to restore an attorney named Burr to the bar of the Circuit Court of the District of Columbia from which he had been suspended for unprofessional conduct. (Ex parte Burr, 9 Wheaton, 529-31.) It has often been erroneously supposed that this applicant was Aaron Burr: he was, however, one Levi Burr, a local practitioner, and not related to Aaron Burr.

It is characteristic of Burr that he remembered the great lawyer who voluntarily had hastened to defend him at Richmond, and Luther Martin – aged, infirm, and almost deranged – was taken to the home of Aaron Burr and tenderly cared for until he died. Burr's marriage, at the age of seventy-eight, to Madame Jumel was, on his part, inexplicable; it was the only regrettable but not unworthy incident of the latter years of his life. (See Shelton: Jumel Mansion, 170-74.)

Burr's New York friends were loyal to him to his very last day. His political genius never grew dim. He early suggested and helped to bring about the nomination of Andrew Jackson for the Presidency. Thus did he pay the debt of gratitude for the loyalty with which the rugged Tennesseean had championed his cause against public opinion and Administration alike.

During the summer of 1836 his last illness came upon him. When his physician said that he could live but a few hours longer, a friend at his bedside asked the supposedly expiring man "whether in the expedition to the Southwest he had designed a separation of the Union." Believing himself to be dying, Burr replied: "No! I would as soon have thought of taking possession of the moon and informing my friends that I intended to divide it among them." To a man, his most intimate friends believed this statement to be true.

Finally, on September 14, 1836, Aaron Burr died and was buried near his father at Princeton, New Jersey, where the parent had presided over, and the son had attended, that Alma Mater of so many patriots, soldiers, and statesmen.

For two years his burial place was unmarked. Then, at night-time, unknown friends erected over his grave a plain marble shaft, bearing this inscription:

AARON BURRBorn Feb. 6, 1756Died Sept. 14, 1836Colonel in the Army of the RevolutionVice-President of the United States from 1801 to 1805(Gulf States Historical Magazine, ii, 379.)

Parton's Life of Burr is still the best story of this strange life. But Parton must be read with great care, for he sometimes makes statements which are difficult of verification.

A brief, engaging, and trustworthy account of the Burr episode is Aaron Burr, by Isaac Jenkinson. Until the appearance of Professor McCaleb's book, The Aaron Burr Conspiracy, Mr. Jenkinson's little volume was the best on that subject. Professor McCaleb's thorough and scholarly study is, however, the only exhaustive and reliable narrative of that ambitious plan and the disastrous outcome of the attempted execution of it.

1343

Blennerhassett Papers: Safford, 480-82; also see Baltimore American, Nov. 4, 5, 6, 1807.

1344

Annals, 10th Cong. 1st Sess. 108-27.

1345

The bill passed the Senate, but foreign affairs, and exciting legislation resulting from these, forced it from the mind of the House. (See vol. iv, chap. i, of this work.)

1346

John Quincy Adams of Massachusetts, Samuel Maclay of Pennsylvania, Jesse Franklin of North Carolina, Samuel Smith of Maryland, John Pope of Kentucky, Buckner Thruston of Kentucky, and Joseph Anderson of Tennessee. (Annals, 10th Cong. 1st Sess. 42.)

1347

Smith had been indicted for treason and misdemeanor, but Hay had entered a nolle prosequi on the bills of indictment after the failure of the Burr prosecution. (Memoirs, J. Q. A.: Adams, i, 481.)

1348

Adams had been indulging in political maneuvers that indicated a courtship of the Administration and a purpose to join the Republican Party. His course had angered and disgusted most of his former Federalist friends and supporters, who felt that he had deserted his declining party in order to advance his political fortunes. If this were true, his performance in writing the Committee report on the resolution to expel Smith was well calculated to endear him to Jefferson. Adams expressed his own views thus: "On most of the great national questions now under discussion, my sense of duty leads me to support the administration, and I find myself of course in opposition to the federalists in general… My political prospects are declining." (Memoirs, J. Q. A.: Adams, i, 497-98.)

The Federalist Legislature of Massachusetts grossly insulted Adams by electing his successor before Adams's term in the Senate had expired. Adams resigned, and in March, 1809, President Madison appointed him Minister to Russia, and later Minister to Great Britain. President Monroe made the former Federalist his Secretary of State. No Republican was more highly honored by these two Republican Presidents than was John Quincy Adams.

1349

Adams did not, of course, mention Marshall by name. His castigation of the Chief Justice, however, was the more severe because of the unmistakable designation of him. (See Writings, J. Q. A.: Ford, iii, 173-84; also Annals, 10th Cong. 1st Sess. 56-63.)

It must be remembered, too, that this attack upon Marshall comes from the son of the man who, on January 20, 1801, appointed Marshall Chief Justice. (See vol. ii, 552-53, of this work.) But John Quincy Adams soon came to be one of the stanchest supporters and most ardent admirers that Marshall ever had. It was peculiarly characteristic of Marshall that he did not resent the attack of Adams and, for the only time in his judicial career, actually interested himself in politics in behalf of Adams. (See vol. iv, chap. ix, of this work.)

1350

Adams's colleague Senator Pickering was, of course, disgusted (see his letter to King, Jan. 2, 1808, King, v, 44), and in a pamphlet entitled "A Review of the Correspondence Between the Hon. John Adams and the late William Cunningham, Esq." which he published in 1824, Pickering wrote that the resolution "outraged … every distinguished lawyer in America" (see p. 41 of pamphlet). King thought Adams "indiscreet" (see his letter to Pickering, Jan. 7, 1808, King, v, 50). Plumer declared that the report "had given mortal offence" in New Hampshire (see Mass. Historical Society Proceedings, xlv, 357). John Lowell asserted that "justice … was to be dragged from her seat … and the eager minister of presidential vengeance seemed to sigh after the mild mercies of the star chamber, and the rapid movements of the revolutionary tribunal" (see his "Remarks" as quoted in Writings, J. Q. A.: Ford, iii, footnote to 184).

1351

Jan. 28, 1808, Memoirs, J. Q. A.: Adams, i, 508; see also Writings, J. Q. A.: Ford, iii, footnote to 184.

1352

"He poured himself forth in his two speeches to-day… It was all a phillipic upon me." (Jan. 7, 1808, Memoirs, J. Q. A.: Adams, i, 501.)

1353

Ib.

1354

Annals, 10th Cong. 1st Sess. 324.

1355

"Mr. Giles, in one of the most animated and eloquent speeches I ever heard him make, declared himself … against the resolution for expulsion. He argued the case of Mr. Smith with all his eloquence, and returned to the charge with increasing warmth until the last moment." (April 9, 1808, Memoirs, J. Q. A.: Adams, i, 528.)

1356

Annals, 10th Cong. 1st Sess. 321-24.

1357

See infra, 550.

1358

Affidavit of Clem Lanier, Am. State Papers, Public Lands, i, 145.

1359

Affidavit of Peter L. Van Allen, ib.

1360

Ib. It would appear that one hundred and fifty thousand acres were allotted to the thrifty Scotch legislator. He sold them for $7500.

1361

Affidavit of John Thomas, Jr., Am. State Papers, Public Lands, i, 148.

1362

Affidavit of Philip Clayton, ib. 146.

1363

Affidavit of John Shepperd, ib.

1364

About sixty affidavits were made to show the venality of members of the Legislature. Of these, twenty-one are printed in ib. 144-49.

1365

Harris: Georgia from the Invasion of De Soto to Recent Times, 127-28; White: Statistics of the State of Georgia, 50; Chappell: Miscellanies of Georgia, 93-95.

These writers leave the unjust inference that Wilson was one of those who were corrupting the Legislature. This is almost certainly untrue. For a quarter of a century Wilson had been a heavy speculator in Indian lands, and it appears reasonable that he took this money to Augusta for the purpose of investment. When the deal was consummated, the Justice held shares to the amount of at least three quarters of a million of acres. (Chappell, 94.)

1366

Ib. 95.

1367

Gunn's reëlection was the first step in the conspiracy. Not until that was accomplished was a word said about the sale of the lands. Immediately after the Legislature had chosen Gunn for a second term in the National Senate, however, the bill was introduced and the campaign of intimidation and bribery launched, to force its passage. (Ib. 82-83.)

1368

See Mathews's reasons, as quoted in the Rescinding Act of 1796, Am. State Papers, Public Lands, i, 156.

1369

Chappell, 86.

1370

The claims of Spain to the territory had been a serious cloud on the title. In October, 1795, the treaty with the Spanish Government, which removed this defect, was published. Senator James Gunn had knowledge that the treaty would be negotiated long before it was made known to the world or even concluded. This fact was one of the reasons for the mad haste with which the corrupt sale act was rushed through the Georgia Legislature. (See Chappell, 72-73.)

1371

Gunn was a perfect example of the corrupt, yet able, bold, and demagogical politician. He was a master of the arts alike of cajolery and intimidation. For a vivid account of this man see Chappell, 99-105.

1372

Haskins: Yazoo Land Companies, 24.

1373

Am. State Papers, Public Lands, i, 151-52.

1374

Chappell, 87.

1375

"A small smoky cabin with a dirt floor was the home of most of them." (Smith: Story of Georgia and the Georgia People, 181.) For a good description of pioneer houses and manner of living, see Ramsey: Annals of Tennessee to the End of the Eighteenth Century, 715-16.

1376

Smith, 170-71.

1377

Morse's American Gazetteer, as quoted in Bishop: Georgia Speculation Unveiled, 3-4.

1378

Adams: U.S. i, 303.

1379

The South Carolina Yazoo Company, 10,000,000 acres for $66,964; The Virginia Yazoo Company, 11,400,000 acres for $93,741; The Tennessee Company, 4,000,000 acres for $46,875. (Haskins, 8.)

1380

Works: Ford, vi, 55-57.

1381

Moultrie vs. Georgia, 1796, dismissed in 1798, Am. State Papers, Public Lands, i, 167; and see vol. ii, 83-84, of this work.

1382

Chappell, 92-93.

1383

Ib. 67-68; Haskins, 13-15.

1384

"No men stood higher in Georgia than the men who composed these several companies and the members of the Legislature who made the sale." (Smith, 173.)

1385

See Haskins, 25, and sources there cited.

1386

The effect of Whitney's invention is shown in striking fashion by the increase of cotton exports. In 1791 only 189,500 pounds were exported from the entire United States. Ten years later Georgia alone exported 3,444,420 pounds. (Jones and Dutcher: Memorial History of Augusta, Georgia, 165.)

1387

Priest: Travels in the United States, 132; and see Haskins, 3.

Otis speaks of the "land jobbing prospectors," and says that "money is the object here [Boston] with all ranks and degrees." (Otis to Harper, April 10, 1807, Morison: Otis, i, 283.)

The national character "is degenerated into a system of stock-jobbing, extortion and usury… By the God of Heaven, if we go on in this way, our nation will sink into disgrace and slavery." (Tyler to Madison, Jan. 15, 1810, Tyler, i, 235.)

1388

See vol. i, 428, of this work.

1389

It was, however, among the last items proposed to the Convention, which had been at work more than three months before the "contract clause" was suggested. Even then the proposal was only as to new States. The motion was made by Rufus King of New York on August 28. Gouverneur Morris objected. "This would be going too far," he said. George Mason of Virginia said the same thing. Madison thought "a negative on the State laws could alone secure the effect." James Wilson of Pennsylvania warmly supported King's motion. John Rutledge of South Carolina moved, as a substitute for King's proposition, that States should not pass "bills of attainder nor retrospective laws." (Records, Fed. Conv.: Farrand, ii, 440.) This carried, and nothing more appears as to the contract clause until it was included by the Committee on Style in its report of September 12. (Ib. 596-97.) Elbridge Gerry of Massachusetts strongly favored it and even wanted Congress "to be laid under the like prohibitions." (Ib. 619.) The Convention refused to insert the word "previous" before "obligation." (Ib. 636.)

In this manner the provision that "no state shall pass any law impairing the obligation of contracts" was inserted in the Constitution. The framers of that instrument apparently had in mind, however, the danger of the violation of contracts through depreciated paper money rather than the invalidation of agreements by the direct action of State Legislatures. (See speech of William R. Davie in the North Carolina Convention, July 29, 1788, ib. iii, 349-50; speech of James McHenry before the Maryland House of Delegates, Nov. 29, 1787, ib. 150; and speech of Luther Martin before same, same date, ib. 214; also see Madison to Ingersoll, Feb. 2, 1831, ib. 495.)

Madison best stated the reason for the adoption of the contract clause: "A violations [sic] of Contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Instalment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, relatively Creditor, as well as Citizens Creditors within the State." (Ib. 548.) Roger Sherman and Oliver Ellsworth explained briefly that the clause "was thought necessary as a security to commerce." (Letter to the Governor of Connecticut, Sept. 26, 1787, ib. 100.)

1390

Chappell, 67.

1391

Harris, 130.

1392

Harris, 131.

1393

Feb. 27, 1795, Annals, 3d Cong. 1st and 2d Sess. 838-39.

1394

Ib. 844-45. The silence of Jackson at this time is all the more impressive because the report of the Attorney-General would surely be used by the land companies to encourage investors to buy. Both Jackson and Gunn were present when King offered his resolution. (Annals, 3d Cong. 1st and 2d Sess. 846.) Jackson declined to vote on the passage of a House bill "making provision for the purposes of treaty" with the Indians occupying the Yazoo lands. (Ib. 849-50.)

1395

Smith, 174.

1396

Robert Watkins.

1397

See Report of the Commissioners, Am. State Papers, Public Lands, i, 132-35.

1398

The "Yazoo men" carried two counties.

1399

Chappell, 126.

1400

The outgoing Governor, George Mathews, in his last message to the Legislature, stoutly defended his approval of the sale act. He attributed the attacks upon him to "base and malicious reports," inspired by "the blackest and the most persevering malice aided by disappointed avarice." The storm against the law was, he said, due to "popular clamour." (Message of Governor Mathews, Jan. 28, 1796, Harper: Case of the Georgia Sales on the Mississippi Considered, 92-93.)

1401

Am. State Papers, Public Lands, i, 157.

1402

Ib. 158.

1403

Am. State Papers, Public Lands, i, 158.

1404

The punctilious Legislature failed to explain that one hundred thousand dollars of the purchase money had already been appropriated and expended by the State. This sum they did not propose to restore.

1405

"Or his deputy."

1406

Report of the joint committee, as quoted in Stevens: History of Georgia from its First Discovery by Europeans to the Adoption of the Present Constitution in 1798, ii, 491-92.

1407

Stevens, 492-93. Stevens says that there is no positive proof of this incident; but all other writers declare that it occurred. See Knight: Georgia's Landmarks, Memorials and Legends, i, 152-53; also Harris, 135.