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

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.)

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.)