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4: The Trial Of Aaron Burr

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When, on March 30, 1807, Colonel Aaron Burr, late Vice-President of the United States, was brought before Chief Justice Marshall in the Eagle Tavern at Richmond on the charge of treason, there began the greatest criminal trial in American history and one of the notable trials in the annals of the law.

"The Burr Conspiracy" still remains after a hundred years an unsolved enigma. Yet whether Burr actually planned treason against the United States in the year of grace 1806 is after all a question of somewhat restricted importance. The essential truth is that he was by nature an adventurer who, in the words of Hamilton, "believed all things possible to daring and energy," and that in 1806 he was a bankrupt and asocial outcast to boot. Whether, therefore, his grandiose project of an empire on the ruins of Spanish dominion in Mexico involved also an effort to separate some part of the West from the Union is a question which, if it was ever definitely determined in Burr's own mind, was determined, we may be sure, quite independently of any moral or patriotic considerations.

Burr's activities after his term of public office ended in March, 1805, were devious, complicated, and purposely veiled, involving many men and spread over a large territory.1 Near Marietta on an island in the Ohio River, Burr came upon Harman Blennerhassett, a genial Irishman living in a luxurious and hospitable mansion which was making a heavy drain upon his already diminished resources. Here Burr, by his charm of manner and engaging conversation, soon won from the simple Irishman his heart and his remaining funds. He also made the island both a convenient rendezvous for his adherents in his ambitious schemes and a starting point for his own extended expeditions, which took him during the latter part of this year to Natchez, Nashville, St. Louis, Vincennes, Cincinnati, and Philadelphia, and back to Washington.

In the summer of 1806 Burr turned westward a second time and with the assistance of Blennerhassett he began military preparations on the latter's island for a mysterious expedition. On the 29th of July, Burr had dispatched a letter in cipher to Wilkinson, his most important confederate. The precise terms of this document we shall never know, but apparently it contained the most amazing claims of the successful maturing of Burr's scheme: "funds had been obtained," "English naval protection had been secured," "from five hundred to a thousand men" would be on the move down the Mississippi by the middle of November. Unfortunately for Burr, however, Wilkinson was far too expert in the usages of iniquity to be taken in by such audacious lying as this. He guessed that the enterprise was on the verge of collapse and forthwith made up his mind to abandon it.

Meanwhile exaggerated accounts of the size of Burr's following were filtering to Washington, together with circumstantial rumors of the disloyalty of his designs. Yet for weeks Jefferson did nothing, until late in November his alarm was aroused by a letter from Wilkinson, dated the 21st of October. On the 27th of November the President issued a proclamation calling upon all good citizens to seize "sundry persons" who were charged with setting on foot a military expedition against Spain. Already Burr, realizing that the West was not so hot for disunion as perhaps he had supposed it to be, began to represent his project as a peaceful emigration to the Washita, a precaution which, however, came too late to allay the rising excitement of the people. Fearing the seizure of their equipment, thirty or forty of Burr's followers under the leadership of Blennerhassett left the island in four or five flatboats for New Orleans, on the night of the 10th of December, and a few days later were joined by Burr himself at the mouth of the Cumberland. When the little expedition paused near Natchez, on the 10th of January, Burr was confronted with a newspaper containing a transcription of his fatal letter to Wilkinson. A week later, learning that his former ally, Wilkinson, had now established a reign of terror at New Orleans directed against his followers; and feeling no desire to test the tender mercies of a court-martial presided over by his former associate, Burr surrendered himself into the custody of the acting Governor of Mississippi Territory. But the refusal of the territorial grand jury to indict him suggested the hope that he might still escape from the reach of the law. He therefore plunged into the wilderness, headed for the Spanish border, and had all but reached his destination when he was recognized and recaptured at Wakefield, Alabama.

Owing to the peculiar and complicated circumstances which led up to it, Burr's case was from the outset imbued with factional and partisan politics of the most extreme kind. While the conspiracy was at its height, Jefferson, though emphatically warned, had refused to lend it any credence whatever; but when the danger was well over he had thrown the whole country into a panic, and had even asked Congress to suspend the writ of habeas corpus. The Federalists and the President's enemies within his own party, headed by the redoubtable Randolph, were instantly alert to the opportunity which Jefferson's inexplicable conduct afforded them. "The mountain had labored and brought forth a mouse," quoted the supercilious; the executive dragnet had descended to envelop the monster which was ready to split the Union or at least to embroil its relations with a friendly power, and had brought up—a few peaceful agriculturists! Nor was this the worst of the matter, contended these critics of the Administration, for the real source of the peril had been the President's own action in assigning the command at New Orleans to Wilkinson, a pensioner of Spain, a villain "from the bark to the very core." Yet so far was the President from admitting this error that he now attributed the salvation of the country to "the soldier's honor" and "the citizen's fidelity" of this same Wilkinson. Surely, then, the real defendants before the bar of opinion were Thomas Jefferson and his precious ally James Wilkinson, not their harried and unfortunate victim, Aaron Burr!

The proceedings against Burr occupied altogether some seven months, during which the sleepy little town of Richmond became the cynosure of all eyes. So famous was the case that it brought thither of necessity or out of curiosity men of every rank and grade of life, of every species of renown. The prosecution was in charge of the United States District Attorney, George Hay—serious, humorless, faithful to Jefferson's interests, and absolutely devoid of the personal authority demanded by so grave a cause. He was assisted by William Wirt, already a brilliant lawyer and possessed of a dazzling elocution, but sadly lacking in the majesty of years. At the head and forefront of the defense stood Burr himself, an unerring legal tactician, deciding every move of the great game, the stake of which for him was life itself. About him were gathered the ablest members of the Richmond bar: John Wickham, witty and ingenious, Edmund Randolph, ponderous and pontifical, Benjamin Botts, learned and sarcastic, while from Baltimore came Luther Martin to aid his "highly respected friend," to keep the political pot boiling, and eventually to fall desperately in love with Burr's daughter, the beautiful Theodosia. Among the 140 witnesses there were also some notable figures: William Eaton, the hero of Derne, whom Burr's codefendant, Blennerhassett, describes for us as "strutting about the streets under a tremendous hat, with a Turkish sash over colored clothes," and offering up, with his frequent libations in the taverns, "the copious effusions of his sorrows"; Commodore Truxton, the gallant commander of the Constellation; General Andrew Jackson, future President of the United States, but now a vehement declaimer of Burr's innocence—out of abundant caution for his own reputation, it may be surmised; Erick Bollmann, once a participant in the effort to release Lafayette from Olmutz and himself just now released from durance vile on a writ of habeas corpus from the Supreme Court; Samuel Swartwout, another tool of Burr's, reserved by the same beneficent writ for a career of political roguery which was to culminate in his swindling the Government out of a million and a quarter dollars; and finally the bibulous and traitorous Wilkinson, "whose head" as he himself owned, "might err," but "whose heart could not deceive." Traveling by packet from New Orleans, this essential witness was heralded by the impatient prosecution, till at last he burst upon the stage with all the eclat of the hero in a melodrama—only to retire bated and perplexed, his villainy guessed by his own partisans.

By the Constitution treason against the United States consists "only in levying war against them, or in adhering to their enemies, giving them aid and comfort," and no person may be convicted of it "unless on the testimony of two witnesses to the same overt act, or on confession in open court." The motion to commit Burr for treason thus raised at the outset the question whether in this case an "overt act" existed. Marshall, who held that no evidence had been shown to this effect, denied the motion, but consented to commit the prisoner on the lesser charge that he had attempted a military expedition against Spain. As this was a bailable offense, however, Burr was soon at liberty once more.

Nor was this the only respect in which the preliminary proceedings sounded a note of antagonism between the Chief Justice and the Administration which was to recur again and yet again in the months following. Only a few weeks earlier at Washington, Marshall had, though with some apparent reluctance, ordered the release of Bollmann and Swartwout, two of Burr's tools, from the custody of the Federal authorities. Alluding in his present opinion to his reason for his earlier action, he wrote: "More than five weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the fact, if it exists. Why is it not proved? To the executive government is entrusted the important power of prosecuting those whose crimes may disturb the public repose or endanger its safety. It would be easy, in much less time than has intervened since Colonel Burr has been alleged to have assembled his troops, to procure affidavits establishing the fact."

This sharp criticism brought an equally sharp retort from Jefferson, to which was added a threat. In a private letter of the 20th of April, the President said: "In what terms of decency can we speak of this? As if an express could go to Natchez or the mouth of the Cumberland and return in five weeks, to do which has never taken less than twelve! ...But all the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overturn this odious republic! ...All this, however, will work well. The nation will judge both the offender and judges for themselves.... They will see then and amend the error in our Constitution which makes any branch independent of the nation.... If their [the judges] protection of Burr produces this amendment, it will do more good than his condemnation would have done." Already the case had taken on the color of a fresh contest between the President and the Chief Justice.

On the 22d of May the United States Court for the Fifth Circuit and the Virginia District formally convened, with Marshall presiding and Judge Grin at his side. On the same day the grand jury was sworn, with John Randolph as foreman, and presently began taking testimony. Unluckily for the prosecution, the proceedings now awaited the arrival of Wilkinson and the delay was turned to skillful use by the defense to embroil further the relations between the Chief Justice and the President. With this end in view, Burr moved on the 9th of June that a subpoena duces tecum issue to Jefferson requiring him to produce certain papers, including the famous cipher letter to Wilkinson. The main question involved, of course, was that of the right of the Court under any circumstances to issue a subpoena to the President, but the abstract issue soon became involved with a much more irritating personal one. "This," said Luther Martin, who now found himself in his element, "this is a peculiar case, sir. The President has undertaken to prejudge my client by declaring that 'of his guilt there is no doubt.' He has assumed to himself the knowledge of the Supreme Being himself and pretended to search the heart of my highly respected friend. He has proclaimed him a traitor in the face of the country which has rewarded him. He has let slip the dogs of war, the hellhounds of persecution, to hunt down my friend. And would this President of the United States, who has raised all this absurd clamor, pretend to keep back the papers which are wanted for this trial, where life itself is at stake?"

Wirt's answer to Martin was also a rebuke to the Court. "Do they [the defense] flatter themselves," he asked, "that this court feel political prejudices which will supply the place of argument and innocence on the part of the prisoner? Their conduct amounts to an insinuation of the sort. But I do not believe it.... Sir, no man, foreigner or citizen, who hears this language addressed to the court, and received with all the complacency at least which silence can imply, can make any inference from it very honorable to the court." These words touched Marshall's conscience, as well they might. At the close of the day he asked counsel henceforth to "confine themselves to the point really before the court"—a request which, however, was by no means invariably observed through the following days.

A day or two later Marshall ruled that the subpoena should issue, holding that neither the personal nor the official character of the President exempted him from the operation of that constitutional clause which guarantees accused persons "compulsory process for obtaining witnesses" in their behalf. The demand made upon the President, said the Chief Justice, by his official duties is not an unremitting one, and, "if it should exist at the time when his attendance on a court is required, it would be sworn on the return of the subpoena and would rather constitute a reason for not obeying the process of the court than a reason against its being issued." Jefferson, however, neither obeyed the writ nor swore anything on its return, though he forwarded some of the papers required to Hay, the district attorney, to be used as the latter might deem best. The President's argument was grounded on the mutual independence of the three departments of Government; and he asked whether the independence of the Executive could long survive "if the smaller courts could bandy him from pillar to post, keep him constantly trudging from North to South and East to West, and withdraw him entirely from his executive duties?" The President had the best of the encounter on all scores. Not only had Marshall forgotten for the nonce the doctrine he himself had stated in Marbury vs. Madison regarding the constitutional discretion of the Executive, but what was worse still, he had forgotten his own discretion on that occasion. He had fully earned his rebuff, but that fact did not appreciably sweeten it.

On the 24th of June the grand jury reported two indictments against Burr, one for treason and the other for misdemeanor. The former charged that Burr, moved thereto "by the instigation of the devil," had on the 10th of December previous levied war against the United States at Blennerhassett's island, in the county of Wood, of the District of Virginia, and had on the day following, at the same place, set in motion a warlike array against the city of New Orleans. The latter charged that a further purpose of this same warlike array was an invasion of Mexico. Treason not being a bailable offense, Burr had now to go to jail, but, as the city jail was alleged to be unhealthful, the Court allowed him to be removed to quarters which had been proffered by the Governor of the State in the penitentiary just outside the city. Burr's situation here, writes his biographer, "was extremely agreeable. He had a suite of rooms in the third story, extending one hundred feet, where he was allowed to see his friends without the presence of a witness. His rooms were so thronged with visitors at times as to present the appearance of a levee. Servants were continually arriving with messages, notes, and inquiries, bringing oranges, lemons, pineapples, raspberries, apricots, cream, butter, ice, and other articles—presents from the ladies of the city. In expectation of his daughter's arrival, some of his friends in town provided a house for her accommodation. The jailer, too, was all civility."2 Little wonder that such goings-on are said to have "filled the measure of Jefferson's disgust."

The trial itself opened on Monday, the 3d of August. The first business in hand was to get a jury which would answer to the constitutional requirement of impartiality—a task which it was soon discovered was likely to prove a difficult one. The original panel of forty-eight men contained only four who had not expressed opinions unfavorable to the prisoner, and of these four all but one admitted some degree of prejudice against him. These four were nevertheless accepted as jurors. A second panel was then summoned which was even more unpromising in its make-up, and Burr's counsel began hinting that the trial would have to be quashed, when Burr himself arose and offered to select eight out of the whole venire to add to the four previously chosen. The offer was accepted, and notwithstanding that several of the jurors thus obtained had publicly declared opinions hostile to the accused, the jury was sworn in on the 17th of August.

At first glance Burr's concession in the selecting of a jury seems extraordinary. But then, why should one so confident of being able to demonstrate his innocence fear prejudice which rested on no firmer basis than ignorance of the facts? This reflection, however, probably played small part in Burr's calculations, for already he knew that if the contemplated strategy of his counsel prevailed the case would never come before the jury.

The first witness called by the prosecution was Eaton, who was prepared to recount the substance of numerous conversations he had held with Burr in Washington in the winter of 1805-6, in which Burr had gradually unveiled to him the treasonable character of his project. No sooner, however, was Eaton sworn than the defense entered the objection that his testimony was not yet relevant, contending that in a prosecution for treason the great material fact on which the merits of the entire controversy pivots was the overt act, which must be "an open act of war"; just as in a murder trial the fact of the killing, the corpus delicti, must be proved before any other testimony was relevant, so in the pending prosecution, said they, no testimony was admissible until the overt act had been shown in the manner required by the Constitution.

The task of answering this argument fell to Wirt, who argued, and apparently with justice, that the prosecution was free to introduce its evidence in any order it saw fit, provided only that the evidence was relevant to the issue raised by the indictment, and that if an overt act was proved "in the course of the whole evidence," that would be sufficient. The day following the Court read an opinion which is a model of ambiguous and equivocal statement, but the purport was fairly clear: for the moment the Court would not interfere, and the prosecution was free to proceed as it thought best, with the warning that the Damocles sword of "irrelevancy" was suspended over its head by the barest thread and might fall at any moment.

For the next two days the legal battle was kept in abeyance while the taking of testimony went forward. Eaton was followed on the stand by Commodore Truxton, who stated that in conversation with him Burr had seemed to be aiming only at an expedition against Mexico. Then came General Morgan and his two sons who asserted their belief in the treasonable character of Burr's designs. Finally a series of witnesses, the majority of them servants of Blennerhassett, testified that on the evening of December 10, 1806, Burr's forces had assembled on the island.

This line of testimony concluded, the prosecution next indicated its intention of introducing evidence to show Burr's connection with the assemblage on the island, when the defense sprang the coup it had been maturing from the outset. Pointing out the notorious fact that on the night of the 10th of December Burr had not been present at the island but had been two hundred miles away in Kentucky, they contended that, under the Constitution, the assemblage on Blennerhassett's island could not be regarded as his act, even granting that he had advised it, for, said they, advising war is one thing but levying it is quite another. If this interpretation was correct, then no overt act of levying war, either within the jurisdiction of the Court or stated in the indictment, had been, or could be, shown against Burr. Hence the taking of evidence—if not the cause itself, indeed—should be discontinued.

The legal question raised by this argument was the comparatively simple one whether the constitutional provision regarding treason was to be interpreted in the light of the Common Law doctrine that "in treason all are principals." For if it were to be so interpreted and if Burr's connection with the general conspiracy culminating in the assemblage was demonstrable by any sort of legal evidence, then the assemblage was his act, his overt act, proved moreover by thrice the two witnesses constitutionally required! Again it fell to Wirt to represent the prosecution, and he discharged his task most brilliantly. He showed beyond peradventure that the Common Law doctrine was grounded upon unshakable authority; that, considering the fact that the entire phraseology of the constitutional clause regarding treason comes from an English statute of Edward III's time, it was reasonable, if not indispensable, to construe it in the light of the Common Law; and that, certainly as to a procurer of treason, such as Burr was charged with being, the Common Law doctrine was the only just doctrine, being merely a reaffirmation of the even more ancient principle that "what one does through another, he does himself."

In elaboration of this last point Wirt launched forth upon that famous passage in which he contrasted Burr and the pathetic victim of his conspiracy:

"Who [he asked] is Blennerhassett? A native of Ireland, a man of letters, who fled from the storms of his own country to find quiet in ours.... Possessing himself of a beautiful island in the Ohio he rears upon it a palace and decorates it with every romantic embellishment of fancy. [Then] in the midst of all this peace, this innocent simplicity, this pure banquet of the heart, the destroyer change this paradise into a hell .... By degrees he infuses [into the heart of Blennerhassett] the poison of his own ambition .... In a short time the whole man is changed, and every object of his former delight is relinquished .... His books are abandoned .... His enchanted island is destined soon to relapse into a wilderness; and in a few months we find the beautiful and tender partner of his bosom, whom he lately 'permitted not the winds of summer to visit too roughly,' we find her shivering at midnight on the winter banks of the Ohio and mingling her tears with the torrents that froze as they fell. Yet this unfortunate man, thus ruined, and undone and made to play a subordinate part in this grand drama of guilt and treason, this man is to be called the principal offender, while he by whom he was thus plunged in misery is comparatively innocent, a mere accessory! Is this reason? Is it law? Is it humanity? Sir, neither the human heart nor the human understanding will bear a perversion so monstrous and absurd!"

But there was one human heart, one human understanding—and that, in ordinary circumstances, a very good one—which was quite willing to shoulder just such a monstrous perversion, or at least its equivalent, and that heart was John Marshall's. The discussion of the motion to arrest the evidence continued ten days, most of the time being occupied by Burr's attorneys.3 Finally, on the last day of the month, the Chief Justice handed down an opinion accepting practically the whole contention of Burr's attorneys, but offering a totally new set of reasons for it. On the main question at issue, namely, whether under the Constitution all involved in a treasonable enterprise are principals, Marshall pretended not to pass; but in fact he rejected the essential feature of the Common Law doctrine, namely, the necessary legal presence at the scene of action of all parties to the conspiracy. The crux of his argument he embodied in the following statement: "If in one case the presence of the individual make the guilt of the [treasonable] assemblage his guilt, and in the other case, the procurement by the individual make the guilt of the [treasonable] assemblage, his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses." Unfortunately for this argument, the Constitution does not require that the "component parts" of the overt act be proved by two witnesses, but only that the overt act—the corpus delicti— be so proved; and for the simple reason that, when by further evidence any particular individual is connected with the treasonable combination which brought about the overt act, that act, assuming the Common Law doctrine, becomes his act, and he is accordingly responsible for it at the place where it occurred. Burr's attorneys admitted this contention unreservedly. Indeed, that was precisely the reason why they had opposed the Common Law doctrine.

Marshall's effort to steer between this doctrine and its obvious consequences for the case before him placed him, therefore, in the curious position of demanding that two overt acts be proved each by two witnesses. But if two, why not twenty? For it must often happen that the traitor's connection with the overt act is demonstrable not by a single act but a series of acts. Furthermore, in the case of procurers of treason, this connection will ordinarily not appear in overt acts at all but, as in Burr's own case, will be covert. Can it be, then, that the Constitution is chargeable with the absurdity of regarding the procurers of treason as traitors and yet of making their conviction impossible? The fact of the matter was that six months earlier, before his attitude toward Burr's doings had begun to take color from his hatred and distrust of Jefferson, Marshall had entertained no doubt that the Common Law doctrine underlay the constitutional definition of treason. Speaking for the Supreme Court in the case of Bollmann and Swartwout, he had said: "It is not the intention of the Court to say that no individual can be guilty of this crime who has not appeared in arms against his country; on the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered traitors." Marshall's effort to square this previous opinion with his later position was as unconvincing as it was labored.4

Burr's attorneys were more prudent: they dismissed Marshall's earlier words outright as obiter dicta—and erroneous at that! Nevertheless when, thirty years later, Story, Marshall's friend and pupil, was in search of the best judicial definition of treason within the meaning of the Constitution, he selected this sentence from the case of Bollmann and Swartwout and passed by the elaborate opinion in Burr's case in significant silence. But reputation is a great magician in transmuting heresy into accepted teaching. Posthumously Marshall's opinion has attained a rank and authority with the legal profession that it never enjoyed in his own time. Regarding it, therefore, as today established doctrine, we may say that it has quite reversed the relative importance of conspiracy and overt act where the treason is by levying war. At the Common Law, and in the view of the framers of the Constitution, the importance of the overt act of war was to make the conspiracy visible, to put its existence beyond surmise. By Marshall's view each traitor is chargeable only with his own overt acts, and the conspiracy is of importance merely as showing the intention of such acts. And from this it results logically, as Marshall saw, though he did not venture to say so explicitly, that the procurer of treason is not a traitor unless he has also participated personally in an overt act of war. As Wirt very justifiably contended, such a result is "monstrous," and, what is more, it has not been possible to adhere to it in practice. In recent legislation necessitated by the Great War, Congress has restored the old Common Law view of treason but has avoided the constitutional difficulty by labeling the offense "Espionage." Indeed, the Espionage Act of June 15, 1917, scraps Marshall's opinion pretty completely.5

On the day following the reading of Marshall's opinion, the prosecution, unable to produce two witnesses who had actually seen Burr procure the assemblage on the island, abandoned the case to the jury. Shortly thereafter the following verdict was returned: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty." At the order of the Chief Justice this Scotch verdict was entered on the records of the court as a simple Not Guilty.

Marshall's conduct of Burr's trial for treason is the one serious blemish in his judicial record, but for all that it was not without a measure of extenuation. The President, too, had behaved deplorably and, feeling himself on the defensive, had pressed matters with most unseemly zeal, so that the charge of political persecution raised by Burr's attorneys was, to say the least, not groundless. Furthermore, in opposing the President in this matter, Marshall had shown his usual political sagacity. Had Burr been convicted, the advantage must all have gone to the Administration. The only possible credit the Chief Justice could extract from the case would be from assuming that lofty tone of calm, unmoved impartiality of which Marshall was such a master—and never more than on this occasion—and from setting himself sternly against popular hysteria. The words with which his opinion closes have been often quoted:

"Much has been said in the course of the argument on points on which the Court feels no inclination to comment particularly, but which may, perhaps not improperly receive some notice.

"That this Court dare not usurp power is most true.

"That this Court dare not shrink from its duty is not less true.

"No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the popular subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."

One could not require a better illustration of that faculty of "apparently deep self-conviction" which Wirt had noted in the Chief Justice.

Finally, it must be owned that Burr's case offered Marshall a tempting opportunity to try out the devotion of Republicans to that ideal of judicial deportment which had led them so vehemently to criticize Justice Chase and to charge him with being "oppressive," with refusing to give counsel for defense an opportunity to be heard, with transgressing the state law of procedure, with showing too great liking for Common Law ideas of sedition, with setting up the President as a sort of monarch beyond the reach of judicial process. Marshall's conduct of Burr's trial now exactly reversed every one of these grounds of complaint. Whether he intended it or not, it was a neat turning of the tables.

But Jefferson, who was at once both the most theoretical and the least logical of men, was of course hardly prepared to see matters in that light. As soon as the news reached him of Burr's acquittal, he ordered Hay to press the indictment for misdemeanor—not for the purpose of convicting Burr, but of getting the evidence down in a form in which it should be available for impeachment proceedings against Marshall. For some weeks longer, therefore, the Chief Justice sat listening to evidence which was to be used against himself. But the impeachment never came, for a chain is only as strong as its weakest link, and the weakest link in the combination against the Chief Justice was a very fragile one indeed—the iniquitous Wilkinson. Even the faithful and melancholy Hay finally abandoned him. "The declaration. which I made in court in his favor some time ago," he wrote the President, "was precipitate.... My confidence in him is destroyed.... I am sorry for it, on his account, on the public account, and because you have expressed opinions in his favor." It was obviously impossible to impeach the Chief Justice for having prevented the hanging of Aaron Burr on the testimony of such a miscreant.

Though the years immediately following the Burr trial were not a time of conspicuous activity for Marshall, they paved the way in more than one direction for his later achievement. Jefferson's retirement from the Presidency at last relieved the Chief Justice from the warping influence of a hateful personal contest and from anxiety for his official security. Jefferson's successors were men more willing to identify the cause of the Federal Judiciary with that of national unity. Better still, the War of 1812 brought about the demise of the Federalist party and thus cleared the Court of every suspicion of partisan bias. Henceforth the great political issue was the general one of the nature of the Union and the Constitution, a field in which Marshall's talent for debate made him master. In the meantime the Court was acquiring that personnel which it was to retain almost intact for nearly twenty years; and, although the new recruits came from the ranks of his former party foes, Marshall had little trouble in bringing their views into general conformity with his own constitutional creed. Nor was his triumph an exclusively personal one. He was aided in very large measure by the fact that the war had brought particularism temporarily into discredit in all sections of the country. Of Marshall's associates in 1812, Justice Washington alone had come to the bench earlier, yet he was content to speak through the mouth of his illustrious colleague, save on the notable occasion when he led the only revolt of a majority of the Court from the Chief Justice's leadership in the field of Constitutional Law.6 Johnson of South Carolina, a man of no little personal vanity, affected a greater independence, for which he was on one occasion warmly congratulated by Jefferson; yet even his separate opinions, though they sometimes challenge Marshall's more sweeping premises and bolder method of reasoning, are after all mostly concurring ones. Marshall's really invaluable aid among his associates was Joseph Story, who in 1811, at the age of thirty-two, was appointed by Madison in succession to Cushing. Still immature, enthusiastically willing to learn, warmly affectionate, and with his views on constitutional issues as yet unformed, Story fell at once under the spell of Marshall's equally gentle but vastly more resolute personality; and the result was one of the most fruitful friendships of our history. Marshall's "original bias," to quote Story's own words, "as well as the choice of his mind, was to general principles and comprehensive views, rather than to technical or recondite learning." Story's own bias, which was supported by his prodigious industry, was just the reverse. The two men thus supplemented each other admirably. A tradition of some venerability represents Story as having said that Marshall was wont to remark: "Now Story, that is the law; you find the precedents for it." Whether true or not, the tale at least illustrates the truth. Marshall owed to counsel a somewhat similar debt in the way of leading up to his decisions, for, as Story points out, "he was solicitous to hear arguments and not to decide cases without them, nor did any judge ever profit more by them." But in the field of Constitutional Law, at least, Marshall used counsel's argument not so much to indicate what his own judicial goal ought to be as to discover the best route thereto—often, indeed, through the welcome stimulus which a clash of views gave to his reasoning powers.

Though the wealth of available legal talent at this period was impressively illustrated in connection both with Chase's impeachment and with Burr's trial, yet on neither of these occasions appeared William Pinkney of Maryland, the attorney to whom Marshall acknowledged his greatest indebtedness, and who was universally acknowledged to be the leader of the American Bar from 1810 until his death twelve years later. Besides being a great lawyer, Pinkney was also a notable personality, as George Ticknor's sketch of him as he appeared before the Supreme Court in 1815 goes to prove:

"You must imagine, if you can, a man formed on nature's most liberal scale, who at the age of 50 is possessed with the ambition of being a pretty fellow, wears corsets to diminish his bulk, uses cosmetics, as he told Mrs. Gore, to smooth and soften a skin growing somewhat wrinkled and rigid with age, dresses in a style which would be thought foppish in a much younger man. You must imagine such a man standing before the gravest tribunal in the land, and engaged in causes of the deepest moment; but still apparently thinking how he can declaim like a practised rhetorician in the London Cockpit, which he used to frequent. Yet you must, at the same time, imagine his declamation to be chaste and precise in its language and cogent, logical and learned in its argument, free from the artifice and affectation of his manner, and in short, opposite to what you might fairly have expected from his first appearance and tones. And when you have compounded these inconsistencies in your imagination, and united qualities which on common occasions nature seems to hold asunder, you will, perhaps, begin to form some idea of what Mr. Pinkney is."

Such was the man whom Marshall, Story, and Taney all considered the greatest lawyer who had ever appeared before the Supreme Court.

At the close of the War of 1812, Marshall, though he had decided many important questions of International Law,7 nevertheless found himself only at the threshold of his real fame. Yet even thus early he had indicated his point of view. Thus in the case of the United States vs. Peters,8 which was decided in 1809, the question before the Court was whether a mandamus should issue to the United States District Judge of Pennsylvania ordering him to enforce, in the face of the opposition of the state Government, a decision handed down in a prize case more than thirty years before by the old Committee of Appeals of the Continental Congress. Marshall answered the question affirmatively, saying: "If the legislatures of the several states may, at will, annul the judgments of the courts of the United States and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."

Marshall's decision evoked a warm protest from the Pennsylvania Legislature and led to a proposal of amendment to the Constitution providing "an impartial tribunal" between the General Government and the States; and these expressions of dissent in turn brought the Virginia Assembly to the defense of the Supreme Court.

"The commission to whom was referred the communication of the governor of Pennsylvania [reads the Virginia document]...are of the opinion that a tribunal is already provided by the Constitution of the United States, to wit; the Supreme Court, more eminently qualified from their habits and duties, from the mode of their selection, and from the tenure of their offices, to decide the disputes aforesaid in an enlightened and impartial manner than any other tribunal which could be created.

"The members of the Supreme Court are selected from those in the United States who are most celebrated for virtue and legal Learning.... The duties they have to perform lead them necessarily to the most enlarged and accurate acquaintance with the jurisdiction of the federal and several State courts together, and with the admirable symmetry of our government. The tenure of their offices enables them to pronounce the sound and correct opinions they have formed, without fear, favor or partiality."

Was it coincidence or something more that during Marshall's incumbency Virginia paid her one and only tribute to the impartiality of the Supreme Court while Burr's acquittal was still vivid in the minds of all? Or was it due to the fact that "the Great Lama of the Little Mountain"—to use Marshall's disrespectful appellation for Jefferson—had not yet converted the Virginia Court of Appeals into the angry oracle of his own unrelenting hatred of the Chief Justice? Whatever the reason, within five years Virginia's attitude had again shifted, and she had become once more what she had been in 1798-99, the rallying point of the forces of Confederation and State Rights.


1 An account of the Burr conspiracy will be found in Jefferson and his Colleagues, by Allen Johnson (in The Chronicles of America).

2 Parton's Life and Times of Aaron Burr (13th Edition, N.Y., 1880), p. 479.

3 A recurrent feature of their arguments was a denunciation of "constructive treason." But this was mere declamation. Nobody was charging Burr with any sort of treason except that which is specifically defined by the Constitution itself, namely, the levying of war against the United States. The only question at issue was as to the method of proof by which this crime may be validly established in the case of one accused of procuring treason. There was also much talk about the danger and injustice of dragging a man from one end of the country to stand trial for an act committed at the other end of it. The answer was that, if the man himself procured the act or joined others in bringing it about, he ought to stand trial where the act occurred. This same "injustice" may happen today in the case of murder!

4The way in which Marshall proceeded to do this was to treat the phrase "perform a part" as demanding "a levying of war" on the part of the performer. (Robertson, Reports, vol. II, p. 438.) But this explanation will not hold water. For what then becomes of the phrase "scene of action" in the passage just quoted? What is the difference between the part to be performed "however minute," and the "action" from which the performer maybe "however remote"? It is perfectly evident that the "action" referred to is the assemblage which is regarded as the overt act of war, and that the "part however minute" is something very different.

5 See especially Title I, Section 4, of the Act. For evidence of the modern standing of Marshall's opinion, see the chorus of approval sounded by the legal fraternity in Dillon's three volumes. In support of the Common Law doctrine, see the authorities cited in 27 Yale Law Journal, p. 342 and footnotes; the chapter on Treason in Simon Greenleaf's well-known Treatise on the Law of Evidence; United States w. Mitchell, 2 Dallas, 348; and Druecker vs. Salomon, 21 Wis., 621.

6This was in the case of Ogden vs. Saunders, 12 Wheaton, 213 (1827).

7Two famous decisions of Marshall's in this field are those in the Schooner Exchange vs. McFaddon et al, 7 Cranch, 116, and the case of the Nereide, 9 ib., 388.

85 Cranch, 136.

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