The Life of John Marshall Volume 3 of 4

imony of two Witnesses to the same overt Act, or on Confes

aws in favor of the accused that I quest

e transacted will hereafter be deemed fables, unl

ost true. That this court dares not shrink

y.[1153] Dinners were given in his honor, and Burr returned these courtesies, sometimes entertaining at his board a score of men and women of the leading families of the city.[1154] Fashionable Richmond

es to aid him than this man."[1155] But this availed Burr nothing as against the opinion of the multitude, which Jefferson manipulated as he chose. Indeed, save in Richmond, this very fidelity of Burr's f

ulky, epauletted Wilkinson on the sidewalk. Flying into "a paroxysm of disgust and rage," Burr's youthful follower[1156] shouldered the burly general "into the middle of the street." Wilkinson swallowed the insult. On

traitors or conspirators," he loftily observed;[1158] whereupon the young "conspirator and traitor" denounced, in the public press, the commander of the American armies as guilty of treachery

ror: "I had anticipated that a deluge of Testimony would have been poured forth from all quarters, to overwhelm Him [Burr] with guilt & dishonour-... To my Astonishment I found the Traitor vindicated & myself condemne

ess: "No one is more sensible than myself of the injustice which has been aimed a

tachment should issue against Jefferson's hero for "contempt in obstructing the administration of justice" by rifling the mails, imprisoning witnesses, and extorting testimony by torture.[1162] The following day was consumed in argument

f brutality inflicted upon him because he could not readily answer the printed questions sent out by Jefferson's Attorney-General.[1164] By other witnesses it appeared that letters had bee

tach Wilkinson, that the grand jury returned the bil

scretion in his favor and to accept bail instead of imprisoning him.[1168] Marshall asked Martin whether he had "any precedent, where a court has bailed for treason, after the finding of a grand jury," when "the testimony ..

ttacked and counter-attacked.[1172] On June 26, Burr's attorneys made oath that confinement in the city jail was endangering his health; also that they could not, under such conditions, properly consult with him about the conduct of his case. Accordingly, Marshall ordered Burr removed to the

e judge who ordered Knox imprisoned or to have violated the laws intentionally. The Chief Justice ordered the marshal to summon, in addition to the general panel, forty-

efense enabled to prepare for trial, an event occurred which proved, as nothing else could have done, how in

ers and to take them if found. Barron refused. Thereupon the Leopard, having drawn alongside the American vessel, without warning poured broadsides into her until her masts were shot away, her rigging destroyed, three sailors killed and eighteen woun

ckly the popular clamor returned to the "traitor" awaiting trial at Richmond. Nor did this "enormity," as Jefferson called the attack on the Chesapeake,[117

General, "has produced ... a degree of Emotion bordering on rage-I revere the Honourable impulse but fear its Effects-... The present is no moment for precipitancy or a stretch of power-on the contrary the British being prepared for War & we not, a sudden appeal to hostilities will give them a great advantage-... The efforts made here

here in the case of Burr-to me they are incomprehensible as I am no Jurist-The Grand Jury actually made an attempt to present me for Misprision of Treaso

n four months after the occurrence of the crisis it was summoned to consider.[1179] But in the meantime Jefferson had sent a messenge

windows barred and door locked; and he obtained from the Executive Council of Virginia a tender to the court of "apartments on the third floor" of the State Penitentiary for the incarceration of the pr

oms were given him in the third story; the jailer was considerate and kind; his friends called on him every day;[1183] and servants constantly "arrived

should often be gêné with visitors." If Theodosia should come on for the trial, he playfully admonishes her t

e credibility, and will hereafter be deemed fables, unless attested by very high authority.... I should never invite any one, much less those so dear to me, to witness my disgrace. I may be immured in dungeons, chained, mur

or of South Carolina, accompanied her; and she brought her little son, who

ort of the proceedings, down to the time when Burr was indicted for treason, was published in a thick pamphlet and sold all over Virginia and neighboring States. Th

already spoken and written sentiments as disloyal, essentially, as those now attributed to Burr; and, at that very time, when the outcry against Burr was loudest, they were beginning to revive their project of seceding from the Union.[

th which a judge will commit himself by an opinion on a case not before him, and on which he has heard no argument. Could this case be readily carried before the Supreme Court, I would not ask an opinion in its present stage. But these questions must be decided by the judges separately on their respective circuits, and I am sure that th

eet the Chief Justice, it would appear to be certain that they wrote him their views of the American law of treason; and that, in the crucial opinion w

n-in-law, Governor Alston.[1190] Not until a week later was counsel for the Government ready to proceed. When at last the men summoned to serve on the petit jury were examined as to their qual

es and editorial opinions that had filled the press, and had accepted the deliberate judgment of Jefferson and the editors; also, they had been impressed by

nt debates of the entire trial sprang up, as to the nature and extent of

His statement of the law was the ablest opinion he had yet delivered during the proceedings, and is an admirable example of his best logical method. It appears, however, to have been u

re twelve men secured, and most of these avowed that they had formed opinions that

which will enable [him] to aid Burr throughout the trial, without appearing to be conscious of doing wrong. He [Marshall] seems to think that his reputation is irretrievably gone, and that he has now nothing to lose by doing as he pleases

so, with an expression of sympathy & sorrow as strong, as the human countenance can exhibit without palpable emotion. If Mr. Burr has any feeling left, yesterd

e. It is already hinted, but not by himself [that] the decision of the Supreme Court will no[t be] deemed binding. If t

t's island was, he said, the overt act; Burr, it was true, was not there at the time, but his presence was not necessary. Had not Marshall, in the Bollmann and Swartwout case, said that "if war be actual

had been a great deal of war in the newspapers," said Wickham, but everybody knew "that there had been no war in fact." Wirt insisted on "unfolding events as they occurred"; that was "the lucid order of nature and reason." Martin pointed out that Eaton's testimony did not "relate to any acts committed any where, but to mere declarations out of the district."[1197] Let the evidence be pertinent. The indictme

when, that night, Marshall began to write his opinion on whether the overt act must be proved

to commit Burr. But it came up now under different circumstances-an indictment had been found "specifying a charge which is to be proved," and thus "an issue m

vert act must be shown before any testimony, explanatory or confirmatory of that fact, can be received. To prove first the fact charged was certainly "the most useful ... and

ches guilt to intentions." When testimony had prepared the mind to look upon the prisoner's designs as criminal, a jury would consider a fact in a different light than if it had been p

with which the overt act itself was committed; not a general evil disposition, or an intention to commit a distinct [different] fact." Testimony as to such

" and the "design to seize on New-Orleans, or to separate by force, the western from the Atlantic states"; but "so far as it respect[ed] other plans to be executed in the city of Washing

ld not exclude any testimony except that which appeared to be ir

andly suggested that the witness stick to Burr's revelations to him. Then, said Eaton, "concerning any overt act, which goes to pro

rd the Government"; he then related at length his services in Africa, the lack of appreciation of his ability and heroism, the preferment of unworthy men to the neglect of himself. Finally, Eaton, who "strutted more in buskin than usual," to the amusement of "the whole court,"[1200] delivered his tes

[1202] Peter Taylor and Jacob Allbright once more told their strange tales; and the three Morgans again narr

s employer's island, some of whom went "out a gunning." He saw no other arms except those belonging to his master, nor did he "see any guns presented," as Allbright had described. B

nversation with Woodbridge about the enterprise, from which he inferred that "the object was Mexico"; of his settlement with Blennerhassett of their partnership accounts; of Blennerhassett's financial reso

lennerhassett's island; of their quiet, orderly conduct; of Comfort Tyler's declaration "that he would not resist the constituted authorities, but that he would not be stopped by a mob"; of Mrs. Blennerhassett

e could not be sure from where he watched, but they "looked like sentinels." However, Poole "could not say whether the persons ... were not merely loitering around the fire." There were some boats, he said, both big and little. Also, when anybody wanted to cross from the Ohio side, the acute Poole thought that "a watchword" was given. The night

hen the gathering and flight took place.[1207] He saw perhaps twenty men in the house; "two or three ... near the door,

bullets." Dana was shown to another room where he met "colonel Tyler, Blennerhassett, Mr. Smith of New-York ... and three or four other gentlemen." He had met Tyler the day before, and was now "introduced

dmitted that Burr was in K

on December 13, 1806, levied war against the United States. Such was the entire proof of that overt act as laid in t

f that historic occasion. For nearly two days this superb lawyer spoke. Burr's counsel would, he said, have preferred to go on, for they could "adduce ... conclusive testimony" as to Burr's innocence. But

Wic

e. It was the unhealthy season, and it was most probable that one or more jurors would become ill. If so, said Wickham, "the cause must lie over and our client, innocent, may be subjected to a prolongation of that confinement w

only way it could be proved. This could not be modified by the common law, since the United States, as a Nation, had not adopted it; and the purpose of the Constitution was to destroy, as far as America was concerned, the British theory of treason. The Constitution "explains itself," said Wickham; under it treason is a newly created offense against a newly created government.

said Wickham, but that had been in a mere case of commitment; the present point did not then come before the c

d-the doctrine that "in treason all are principals," and that, by "construction of law," he was present, although in reality he

s offense can only be punished by a special indictment charging the facts as they existed." The prosecution "should a

difficulties of the trial, I congratulate Your Honour on having the opportunity of fixing the law, relative to this peculiar crime, on grounds which wil

ely granted Hay's request.[1218] "Did you not do an unprecedented thing," a friend asked Marshall, "in suspending a criminal prosecution and granting two days, in the midst of the argument on a point then under discussion, for c

hat he became almost incoherent.[1220] Burr not a principal! "Let all who are in any manner concerned in treason be principals," and tr

g hall.[1223] But the spectators soon forgot their discomfort. The youthful, handsome William Wirt enraptured them with an eloquence which has lived for a century. It is impossible to give a faithful condensation of this charming

arously violating towards him every principle of decorum and humanity?[1224] This motion [to arrest the testimony] is a bold and original stroke in the noble science of defence," made to pr

f the 16th century, complaining most dolefully of my lord Coke's bowels." It was to get as far as possible away from Marshall's decision in the case of Bollmann and Swartwout. If Marshall's

nerhassett's island?" In reply Wirt condensed the theory of the prosecution: "I mean to say, that the count is general in modern cases; that we are endeavoring to make the accused a traitor by connection, by stating the act which was done, and which act, from his conduct i

... while those whom he has deluded are to suffer the death of traitors." How infamous! Burr only the accessory and Blennerhassett the principal! "Will any man believe that Burr who is a soldier bold,

Jefferson's Proclamation, Messages, and letters, in fixing, perhaps irremovably, public opinion as to Aaron Burr and Harman Blennerhassett.[1228] But his speech was

. Botts availed himself of one such display to make Wirt's argument seem absurd and trivial: "Instead of the introduction of a sleeping Venus with all the luxury of voluptuous and wanton nakedness to charm the reason through the refined medium of sensuality, and to convince us that the law of treason is with the prosecution by leading our imaginations to the fascin

nfessedly no war; and it happened although it was prevented!" As to arms: "No arms were necessary ... they might make war with their fingers." Yes, yes, "a most bloody war indeed-and ten or twelve boats." Referring to the flight from Blennerhassett's island, the sarcastic

e but published in all the newspapers throughout the United States, that if Aaron Burr should be acquitted it will be the severest satire on the government; and t

change of countenance.... Yet the next day they announced in the newspapers," declared Botts, "that he was in a state of indescribable consternation and

f justice! If so, where was the boasted beneficence of democracies? Where the righteousness and wisdom of the people? What did history tell us of the justice or mercy of the people? It was the people who forced Socrates to drink hemlock, banished Aristides, compelled the execution of Admiral B

Wirt's great speech. His principal point, which he repeated interminably, was that the jury must decide both law and fact. In making this contention he declared that Marshall was now asked by Burr's counsel to d

argument, Lee called Marshall's attention to Hay's threat of impeachment. The exhausted District Attorney finally denied that he meant such a thing, and Marshall mildly obse

ughout the proceedings;[1243] but never was he in more perfect command of all his wonderful p

d up to the public and to this jury as conclusive proof of our guilt." Such, declared the great lawyer, were the methods used to convict Burr.[1244] He had been in favor, he avowed, of waiving "obvious and undeniable rights," and of going on with the trial becaus

ecutors ... what dear delight will my heart enjoy!"[1245] Martin thanked Heaven, too, for the boon of being permitted to oppose the "destructive" doctrine of treason advanced by the Government. For hours he analyzed the British decisions which he "thanked God ... are not binding authority in this country." He described

lad of Chevy Chase."[1247] Deftly he impressed upon Marshall, Hay's threat of impeachment if the Chief Justice should presume to decide in Burr's favor.[1248] Lamenting the popular hostility toward Burr, Martin defied it: "I have with pain

to secure all our rights) arrived at a period when a trial in a court of justice, where life is at stake, shall be but ... a mere i

lty of murder in foro c?li whatever their guilt may be in foro legis.... May that God who now looks down upon us, and who has in his infinite wisdom called you into existence and placed you in that seat to dispense justice to your fellow c

he fate of Aaron Burr and of American liberty, as affected by

ad enchained the attention of all America, had now reached their climax. Burr's friends were fearful, and hoped that the laudanum calumny[1252] would "strengthen" Marshall to do

e. Indeed, a greater number of decisions, treatises, and histories are referred to than in all the rest of Marshall's foremost Constitutional opinions

estimony be received "to charge one man with the overt acts of others until those overt acts as laid in the indictment be proved to the satisfaction of the court"? He made clear the

tted of some latitude of construction." Even so it was obvious that the term "levying war" literally meant raising or creating and making war. "It would

not "levy war" as much as any other officer, although he may never have seen the army? The same was true of "a recruiting

It is a technical term," borrowed from an ancient English statute[1255] and used in the Constitu

ds of every student," and upon which "legal opinions are formed" that are "carried to the bar, th

l rule [of constructive treason] which attaches the guilt of the principal to an accessory." Nor were the British decisions more satisfactory: "If in adjudged cases this question [has] been ... directly de

ng principal and accessory"-the traitor must "truly and in fact lev

tanding by the grand jury of his language in that opinion that Burr had been indicted for treason, and because the Government relied

] But certainly such is not the fact. Those only who perform a part, and who are leagued in the conspiracy, are declared to be traitors. To complete t

s construed as meaning that "any assemblage whatever for a treasonable purpose, whether in force or not in force, whether in a condition to use violence or not in that condition, i

levied without the employment and exhibition of force.... Intention to go to war may

f a large number of British writers and judges, and of all American judges who had passed upon the question. In none of these, he asserted, had

addition, reversed the natural interpretation of the Constitution which reaso

plain and explicit terms." A mere implication was not enough. Yet this was all there was to justify the erroneous construction of his opinion in the case

id say: that the act of levying war required "an assemblage in force," and not merely "a secret furtive assemblage without the appearance of force." The gath

erwise the accused could not make adequate defense. So the indictment "must be proved as laid"; otherwise "the charge of an overt act would be a mischief

egally present, and therefore may properly be charged in the indictment as being present in fact." Thus, the question arose "whether in this case the doctrine of constructive presence can ap

r facts might require that a man should be considered to be present although really absent; for example, if he were on the way there for the purpose of taking part in the specific act charged, or if he were stati

articipator in "every overt act performed anywhere"; and he would be liable to trial and conviction "in any state on the continent where any overt act has been committed" by anybody.

lage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence-since the procuring of the assemblage takes the place of presence at it. "If in one case," declared Marshall, "the presence of the individual mak

be conjectured or inferred will satisfy the constitution and the law." And "if procurement take the place of presence and become part of the over

ved by two witnesses," as required by the Constitution. "Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclu

act will not justify conviction without proof." And most "certainly it will not justify conviction without [one] direct and positive witness in a case where the constitution requires two." The tru

!" But, instead, "evidence [of] subsequent transactions at a different place and in a different state." But such "testimony was not relevant." If it could be introduced at all, it would be "only

ot less true.... No man is desirous of becoming the peculiar 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 th

acts as proved and "find a verdict of guilty or

arshall's brother-in-law, Colonel Edward Carrington, foreman, ro

d," gravely or

n read the words of t

be guilty under this indictment by any evidence sub

ording to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back

aimed Martin, "Much Ado About Nothing." Of course the verdict must be corrected. Did the jury mean to "censure ... the cour

a verdict of acquittal." Richard E. Parker, also of the jury, said he never would agree to change the form-they knew what they were about when they

as the jury wished it; but, since it was "in effect a verdict of

their patient attention during the whole course o

an intimate friend, supporter, and agent of Jefferson, approached Blennerhassett for that purpose, and offered to go to Washington, "now or at any time hereafter

hat all of them, Burr included, be still held under the charge of treason, that they might be sent for trial to some place where an overt act might have been committed.[1280] Marshall,

to prevent the evidence from ever going before the world. But this latter case must not take place." Hay must see to it that "not a single witness be paid or permitted

nvict Marshall in the court of public opinion, and perhaps serve as a pretext for impeaching him. Thus, in the second trial of which we are now to be spectators, "the chief-justice was occupied in he

n to dispute, permitted and actually encouraged exasperatingly extended argument upon it.[1285] Burr had submitted to give bail at the beginning, said Botts, n

opinion; nor was it directly on the matter at issue. Counsel floundered through a tangle of question

Mar

tthew Sully, in the Corcoran G

nder the indictment for misdemeanor. Jonathan Dayton and William Langbourne offered themselves and were accepted as sureties; and on Septemb

red anger, the patriotic multitude talked resentfully of Marshall's decision. On one side it was said that justice had prevailed and persecution had been defeated; on the ot

hy did you not tell Judge Marshall that the people of America demanded a conviction?" a disgusted Republican asked of Wirt. "Tell him that!" exclaimed Wirt. "I w

d assured his friends that, when acquitted, he would again take up and put through his plans. This thought now dominated him. Blennerhassett, upon visiting his chief, found Burr "as g

coming, and Burr asserted the President to be in contempt of court and subject to punishment therefor.[1290] Once more altercation flared up in debate. Hay said he had

rect encounter. At last he wished to compose the differences between himself and the obstinate and fearless, if gentle-mannered, Marshall. So the President directed his district atto

ld discredit equally at home and abroad." Naturally Burr and his counsel would like "to convert this trial into a contest between the judiciary & Exve Authoriti

on the persons of the Exve or heads of departs," Hay was to give Jefferson "instant notice, and by express if you find that can

. The powers given the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-emine

question to lie over for the present, and at the ensuing session of the legislature [Congress] he may have means provided for giving individuals the benefit of the testimony of the Exve functiona

ant declaration that he would not produce it even if he were sent to jail for not doing so. Hay then returned a copy of such parts of the letter as he thought "mater

the production of the letter-the President, in response to the subp?na upon him, had sent the document to Hay, leaving to the discretion of the District Attorney the question as to what should be done with it. Of course if, for public reasons, Jeffers

Marshall's remarks from the bench had not been explicit, he said, and "it is impossible to foresee what his opinion will be unless I co

overnment will be defeated on the trials for misdemeanor, and believes the indictments for that offense should be dismissed and motion made for the commitment of

cted, it will give them time to see whether a prosecution for treason can be instituted against him in any, and what court." A second subp?na duces tecum seems to have been issued against J

losing fight. Many witnesses were sent home unexamined or merely leaving their affidavits. Hay acted like the sick man he really was. The dour MacRae appeared "utterly chop-fallen; an object of disgust to his friends, and pity t

h Spain, and only in that event, to lead a force against the Spaniards. No testimony whatever was given tending to disclose any hostile plans against the United States, or even for an attack upon Mexico without war be

e fantastic than ever; but both these heroes put on looks of lofty defiance. The warrior-diplomat of Algerian fame h

nor, tried to prevent the jury from rendering a verdict.[1306] One member of the jury wanted that body to return a special f

trate, gave the Government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. Blennerhassett thought that Marshall was conciliating "public prejudice."[1309] Burr told his counsel that the Chief Justice "did not for two days together understand either the questions or himself ... a

nd politician retaliated by abusing the President, Wilkinson, and Burr equally. Between Daveiss's pamphlet and Marshall's sudden admission of evidence, some saw a direct connection; the previous knowledge Marshall must have had of his brother-in-law's intended assault, inferred because

o, in expressing his own opinions, usually reflected those of his associates, had "no doubt" that the President's perusal of Marshall's last volume and Dave

[1315] Marshall's conduct should indeed fill everybody "with alarm," wrote Jefferson in reply. "We had supposed we possessed fixed laws to guard us equally against treason & oppression. But it now appears we have no law but the will of the judge. Never will chicanery h

holia permitted them to enjoy. "Had the late vice president and two senators been convicted and executed for treason,

ands of intelligent legislators," but that "among others it might perhaps do mischief. It might produce a sentiment toward all ju

he motion, Marshall said, "unless it was perfectly clear that the act was innocent." If there was any doubt, the accused must be held. The Chief Justice then carefully analyzed all the evidence.[1319] He concluded that Burr's purposes were to settle the Washita lands and to invade Mexico if opportunity offered, perhaps, however,

the friends of the chief justice and of ridicule to his enemies-all believing that it was a sacrifice of principle to con

lenge: "If those whose province and duty it is to prosecute offenders against the laws of the United States shall be of the opinion that a cri

e was so "exasperated" that "he was rude and insulting to the Judge."[1322] Nor did Marshall's friends in Richmond feel differently. They "are as much dissatisfied," records Blennerhassett, "with his opinion yester

sue the prosecution.[1324] Burr put the whole matter out of his mind as a closed incident, left Richmond, an

urtesy: "I have as yet been able only to peep into the book.... I received it while fatigued and occupied with the most unpleasant case which has ever been brought before a Judge in this or perhaps any other country, which affected to be governed by laws, since the decision of which I have been entirely from home.... I

st deplorably serious & I could not give the subject a different aspect by treating it in any manner which was in my power. I might perhaps have

o be his duty, he said, to transmit a record of the Burr trial. "Truth & duty alone extort the observation that wherever the laws were appealed to in aid of the public safety, their operation was on behalf of those only against whom they were invoked." From t

strued in the case of Fries,[1328] and it's wonderful refractoriness as construed in that of Burr, shew that neither end has been attained, and induce an awful doubt whether we all live under the same law. The right of the ju

ose by which Jefferson had directed the impeachment of Pickering-in plainer words, indeed, than those privately written to Nicholson ordering the attack upon Chase. Jefferson's assault on Marshall was also inserted in a Me

m Burr to Great Britain-been heeded at the National Capital, there can be little doubt that John Marshall would have been impeached

ress, particularly the Aurora and the Enquirer, the two leading Republican papers, went to the limits of invective. "Let the judge be impeached," said the Enquirer; the Wickham dinne

the court had decided." His conduct had been inspired by "power illicitly obtained." And think of his encouragement to Burr's counsel to indulge in "unbounded ... slander and vilification" of the President! Callender's libel on Adams was insip

ld not be relied on to cleanse the bench of a judge no matter how "noxious," "ridiculous," "contemptible," or "immoral" he might be. But "shall an imposter be suffered to preside on the bench of justice?... Are we to be eternally pestered with

William Thompson under the nom de guerre of "Lucius"; he undoubtedly was also the author of the earlier attacks on the Chief Justice

g the manouvres of a political party," his "crafty cunning" as a diplomat, had been perpetuated by the "genius" of John Thompson, whose "literary glory ... will shine when even the splendour of your talents and your crimes shall have faded forever. When your volumes of apology for British insolence and cruelty[1335] shall be buried in oblivion, the 'Lette

e Chief Justice had "exhibited a culpable partiality towards the accused, and a shameless solicitude ... to implicate the government ... as negligent of their duty"-something that "a less malicious magistrate" never would have dared to display.[1338] A third letter continued the castigat

crimes, I would still trace you ... for screening a criminal and degrading a judge" by the "juggle of a judicial farce." Marshall and Burr were alike "morally guilty," alike "traitors in heart and in fact.... Such a criminal and such a judge, few

ce resolved publicly to execute Marshall in effigy, along with Burr, Blennerhassett, and Martin, On the mor

FUL

k, to be marshaled for execution by the hangman, on Gallows Hill, in consequence of the se

r which they suffer are t

ricks, which are said to be much aggravated by his feloni

with the trifling fault of wishing to divi

mist, convicted of conspiracy to de

tle, for a false, scandalous, malicious Prophecy, that,

accomplices is postpone

assett was staying. Burr and the faithful Swartwout, who had accompanied his friend and leader, were escorted by a guard to the stage of

ing and would, ... if disappointed or opposed, tear Martin [and Blennerhassett] to pieces." The manager of the hotel begged Blennerh

Justice Marshall and the other popularly condemned men "habited for execution.... Two troops of cavalry patrolled the streets, not to disperse the mob, but to follow and beh

of John Marshall, Chief Justice of the United States, was hanged by the neck until the executioner pronounced the stuffed figure to be dead. About him dangled from the gibbet the forms of th

done"; and he supported it in an argument of notable ability. He powerfully attacked Marshall, analyzed his opinions in the Burr case, contrasted them with those of other National

o two judges have yet delivered the same opinion upon some of the most essential features of treason. Take for example the British doctrine that, in treason, accessories are principal

ingle witness in his own behalf beforehand, a special Senate Committee[1348] presented a report concluding with a resolution to expel Smith because of "his participation in the conspiracy of Aaron Burr agains

st interests of this nation" required that nobody connected with it should be a member of Congress. After an unctuous recitation of accepted generalities and a review of the exp

"decisions, forming the basis of the issue upon the trials of Burr ... were the sole inducements upon which the counsel for the United States abandoned the prosecution against him" (Smith). An American grand jury had charged Senator Smith with being "an accompli

excluded from the mind by the curtain of artificial rules, the simplest understanding cannot but see what the subtlest unde

committee have not a scruple of doubt ... that, but for the vigilance and energy of the government, and of faithful citizens under its directions ... in

ning Post sharply criticized him.[1353] When the report came up in the Senate, James A. Bayard of Delaware, and James Hillhouse of Connecticut, attacked it and its author with "unusual virulence." Baya

st one short of the necessary two thirds. The Virginia Republican Senator attacked the resolution with all his fiery eloquence, and compelled the admirati

tive body" in our Government, and the one least affected by popular storms, was so worked upon, one can perceive the conditions that surrounded the Chief Justice in overcrowded Richmo

that the machinery of impeachment was, during these fateful months, locked because the President, Congress, and

swallowed up in the louder and ever-increasing reverberations that heralded approaching war with Great Britain. Before the clash of arms arrived, however, his level common sense and intelligent courage were again called up

TNO

hassett Papers

s nearly over. He said that two hundred men acted a

arton: B

07, "Register," Pl

was then twenty

ton: Jacks

lenged Wilkinson afte

ding Swartwout's open letter to Wilkinson, in Bl

n, June 17, 1807, "Letters i

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 t

r Trials,

n was then giving his testi

Ib. 2

Ib. 2

Ib. 2

ee supra

rr Trials

] Ib.

s Fairlie, July 7, 1

rr Trials

Ib. 3

r Trials,

Ib. 3

ng: Jeff. System, 189-94; Hildreth, iii, 4

clamation, July 2, 180

olson, June 25, 1807, A

n, June 29, 1807, "Letters i

Congress, Annals, 10

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 c

r Trials,

de of thieves, cut-throats, and incendiaries," says Irving, "was that it would save the United States a couple o

t to get an audience as if he really were an Emperor." (Blennerhassett Papers: Safford, 324.) At firs

daughter, July 3, 1

daughter, July 6, 1

same, July 24

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

hap. i, of this work.

me Court, June 29, 1807, as quoted by Horace Gray, Ass

arton: B

r Trials,

Ib. 3

Ib. 3

r Trials,

on, Aug. 11, 1807, Je

r Trials,

aton's testimony would be to th

r Trials,

r Trials,

hassett Papers

ewspaper, that had influenced the country only l

nvincing still, General Adair, writing before the trial began, told substantially the s

rgan testimony, see Bu

r Trials,

Ib. 5

r Trials,

those whom Poole saw cross the strea

rr Trials

n were thinking of jo

ician who accom

r Trials,

] Ib.

r Trials,

Ib. 5

rr Trials

Ib. i

7] I

] Ib.

assett Papers:

's descriptio

rr Trials

hassett Papers

hroughout the trial. One night Blenner

rr Trials

] Ib.

r Trials,

7] I

Burr Trials

sage of Wirt's spee

st of his life." (See Parton: Burr, 506.) But it was no "joke"-standing or othe

ay, as high as MacRae sunk his the day bef

r Trials,

ts talked so fast that he could not

r Trials,

to poison with laudanum one of the Government's witnesses-this although the particular witness had been brought

r Trials,

rson, while Governor during the Revolution, that nearly res

r Trials,

] Ib.

Ib. 1

Ib. 1

Ib. 200

. ii, 201, 428

r Trials,

s both yesterday and to-day more in his cups than usual, and though he spared neither his pr

ng a pint tumbler before him. No ceremo

final immersion into the daily

rr Trials

rr Trials

-79; see also

rr Trials

] Ib.

ld Martin this was Marshal

r Trials,

another speech, but

supra, foot

hassett Papers

s, ii, 401; also

th, of Ed

als, ii, 402-03

ials, ii, 403;

als, ii, 404-05

hat accessories are a

ublican 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 retu

ials, ii, 409;

ls, ii, 409-13;

ials, ii, 415;

ls, ii, 415-23;

ials, ii, 425;

Burr Trials, ii, 425-34; 4 Cranch, 490-5

ials, ii, 426;

ials, ii, 429;

ials, ii, 430;

ials, ii, 436;

of Marshall's method of statement and logic-the exact antithesis plainly put, the repetiti

ials, ii, 437;

ials, ii, 443;

als, ii, 444-45

rr Trials

n was right; the verdict should have

hassett Papers

rr Trials

48, 464-65. Duane was known to have unbounded influence with Jefferson, w

provided for in the army, if his principles ... were not adverse to the administration." De Pestre's brother-in-law "had been turned o

r Trials,

] Ib.

7, as quoted in Adams, U.S. iii, 470;

ams: U.S.

See inf

r Trials,

nce upon public sentiment to influence court and jury through unceasing efforts to keep burning the fires of popular fear and hatred of Burr, first li

r Trials,

Chief-Justices of the United States, 379. Yet popular sentiment was the b

hassett Papers

rr Trials

] Ib.

ance." (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 sp

r Trials,

Ib. 5

d tried to patch up "a truce" between the President and the Chief

r Trials,

on, Sept. 5, 1807, Je

s letter to Hay, September 7, says: "I received, late last night,

Hay, Sept. 7, 1807,

favorable progress of the case relieved Burr's anxiety. It is possi

hassett Papers

uminous opinion as ever did honor to a judge, which has put an end

10th Cong. 1s

nnerhassett, who usually reported faithfully the general impression, notes in his diary: "The General exhibited the manner of a sergeant

] Ib.

Archives U.S. Circui

hassett Papers

Ib. 4

] Ib.

Ib. 4

he President's Conduct Conce

assett Papers:

] Ib.

"The Letters of Curtius" which attacked Marshal

series of letters to Marshall immediately

pson, September 26, 1807

15, 1807, "Diary," P

on, Oct. 15, 1807, Je

red Burr of any taint of treason, had not Jefferson already crystallized public sentiment in

20]

aughter, Oct. 23, 18

on, Oct. 21, 1807, Je

d but untrustworthy associate, it would not be weighty. But Blennerhassett's views while at Richmo

rn 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 (Quarte

See inf

ers, Nov. 23, 1807, Pe

ll's award of two thousand dollars as his fee,

i, 35-36; also vol. ii

Annual Message, first dra

tin and Rodney, Works: Fo

y 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 b

l. ii, 464-71

1807. This article fills more than two closely printed columns. It discu

uirer, Nov

all's Life o

l. ii, 395-96

stice of the United States," in the Aurora

uirer, Dec

b. Dec.

ee supra

uirer, Dec

hassett Papers

hassett Papers

o revolutionize Mexico. At first all went well. Men like Jeremy Bentham and Sir Walter Scott became his friends and admirers. But the hand of Je

gitive 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 h

ton, 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 comfort

her arms "without hesitation or visible tremor." This absurdity was given credit and currency by Harriet Martineau. (See Martineau: Western Travels, ii, 291-92.) Theodos

led 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 part

d 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 w

and helped to bring about the nomination of Andrew Jackson for the Presidency. Thus did he pay the debt of gratitude for

iring 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 thou

er at Princeton, New Jersey, where the parent had presided over, and the son

at night-time, unknown friends erected over his g

ON

Feb.

ept. 1

he Army of t

the United State

istorical Maga

ge life. But Parton must be read with great care, for he so

book, The Aaron Burr Conspiracy, Mr. Jenkinson's little volume was the best on that subject. Professor McCaleb's thorough and scholarly stud

afford, 480-82; also see Baltim

10th Cong. 1s

exciting legislation resulting from these, forced it from

lin of North Carolina, Samuel Smith of Maryland, John Pope of Kentucky, Buckner Thrus

had entered a nolle prosequi on the bills of indictment after the

erted 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

s resigned, and in March, 1809, President Madison appointed him Minister to Russia, and later Minister to Great Britain. President Monroe made t

f Justice, however, was the more severe because of the unmistakable designation of him

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

on "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 Low

A.: Adams, i, 508; see also Writings,

hes to-day.... It was all a phillipic upon me."

55]

, 10th Cong.

.. against the resolution for expulsion. He argued the case of Mr. Smith with all his eloquence, and returned

10th Cong. 1s