The Life of John Marshall Volume III Part 46

In the same letter Jefferson also sent to Hay the affidavit of one Jacob Dunbaugh, containing a ma.s.s of bizarre falsehoods, as was made plain during the trial. Dunbaugh was a sergeant who had been arrested for desertion and had been pardoned by Wilkinson on condition that he would give suitable testimony against Burr. "If," continues Jefferson, "General Wilkinson gets on in time,[1013] I expect he will bring Dunbaugh with him. At any rate it [Dunbaugh's affidavit] may be a ground for an arrest & committment for treason."

Vividly alive to the forces at work to doom him, Burr nevertheless was not dismayed. As a part of his preparation for defense he exercised on all whom he met the full power of his wonderful charm; and if ever a human being needed friends, Aaron Burr needed them in the Virginia Capital. As usual, most of those who conversed with him and looked into his deep, calm eyes became his partisans. Gradually, a circle of men and women of the leading families of Richmond gathered about him, supporting and comforting him throughout his desperate ordeal.

Burr's attorneys were no longer merely his counsel performing their professional duty; even before the preliminary hearing was over, they had become his personal friends and ardent champions. They were ready and eager to go into court and fight for their client with that aggressiveness and enthusiasm which comes only from affection for a man and a faith in his cause. Every one of them not only had developed a great fondness for Burr, but earnestly believed that his enterprise was praise-worthy rather than treasonable.

One of them, John Wickham, was a commanding figure in the society of Richmond, as well as the leader of the Virginia bar at that time.[1014]

He was a close friend of Marshall and lived in an imposing house near him. It was to Wickham that Marshall had left the conduct of his cases in court when he went to France on the X. Y. Z. mission.

Dinners were then the princ.i.p.al form of social intercourse in Richmond, and were constantly given. The more prominent lawyers were particularly devoted to this pleasing method of cheer and relaxation. This custom kept the brilliant bar of Richmond sweet and wholesome, and nourished among its members a mutual regard, while discouraging resentments and animosities. Much of that courtesy and deference shown to one another by the lawyers of that city, even in the most spirited encounters in court, was due to that esteem and fellows.h.i.+p which their practice of dining together created.

Of the dispensers of such hospitality, Marshall and Wickham were the most notable and popular. The "lawyer dinners" given by Marshall were famous; and the tradition of them still casts a warm and exhilarating glow. The dinners, too, of John Wickham were quite as alluring. The food was as plentiful and as well prepared, the wines as varied, select, and of as ancient vintage, the brandy as old and "sound," the juleps as fragrant and seductive; and the wit was as sparkling, the table talk as informing, the good humor as heartening. n.o.body ever thought of declining an invitation to the house of John Wickham.

All these circ.u.mstances combined to create a situation for which Marshall was promptly denounced with that thoughtlessness and pa.s.sion so characteristic of partisans.h.i.+p--a situation that has furnished a handle for malignant criticism of him to this day. During the interval between the preliminary hearing and the convening of court in May, Wickham gave one of his frequent and much-desired dinners. As a matter of course, Wickham's intimate friend and next-door neighbor was present--no dinner in Richmond ever was complete without the gentle-mannered, laughter-loving John Marshall, with his gift for making everybody happy and at ease. But Aaron Burr was also a guest.

Aaron Burr, "the traitor," held to make answer to charges for his infamous crimes, and John Marshall, the judge before whom the miscreant was to be tried, dining together! And at the house of Burr's chief counsel! Here was an event more valuable to the prosecution than any evidence or argument, in the effect it would have, if rightly employed, on public opinion, before which Burr had been and was arraigned far more than before the court of justice.

Full use was made of the incident. The Republican organ, the Richmond _Enquirer_, promptly exposed and denounced it. This was done by means of two letters signed "A Stranger from the Country," who "never had any, the least confidence in the political principles of the chief justice"--none in "that n.o.ble candor" and "those splendid ... even G.o.d-like talents which many of all parties ascribe to him." Base as in reality he was, Marshall might have "spared his country" the "wanton insult" of having "feasted at the same convivial board with Aaron Burr."

What excuse was there for "conduct so grossly indecent"? To what motive should Marshall's action be ascribed? "Is this charity, hypocracy, or federalism?" Doubtless he "was not actuated by any corrupt motive," and "was unapprised of the invitation of B."[1015] However, the fact is, that the judge, the accused, and his attorney, were fellow guests at this "treason rejoicing dinner."[1016]

Thus the great opinions of John Marshall, delivered during the trial of Aaron Burr, were condemned before they were rendered or even formed.

With that lack of consideration which even democracies sometimes display, the facts were not taken into account. That Marshall never knew, until he was among them, who his fellow guests were to be; that Wickham's dinner, except in the presence of Burr, differed in no respect from those constantly given in Richmond; that Marshall, having arrived, could do nothing except to leave and thus make the situation worse;--none of these simple and obvious facts seemed to have occurred to the eager critics of the Chief Justice.

That Marshall was keenly aware of his predicament there can be no doubt.

He was too good a politician and understood too well public whimsies and the devices by which they are manipulated, not to see the consequences of the innocent but unfortunate evening at Wickham's house. But he did not explain; he uttered not a syllable of apology. With good-natured contempt for the maneuvers of the politicians and the rage of the public, yet carefully and coolly weighing every element of the situation, John Marshall, when the appointed day of May came around, was ready to take his seat upon the bench and to conduct the historic trial of Aaron Burr with that kindly forbearance which never deserted him, that canny understanding of men and motives which served him better than learning, and that placid fort.i.tude that could not be shaken.

FOOTNOTES:

[917] Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong. Senator Plumer adds: "The government are apprehensive that the arts & address of _Bollman_, who effected the liberation of the Marquis de Lafayette from the strong prison of Magdeburge, may now find means to liberate himself."

[918] Clay to Prentiss, Feb. 15, 1807, _Priv. Corres._: Colton, 15; also _Works_: Colton, IV, 14.

[919] Plumer, Feb. 20, 1807, "Register," Plumer MSS. Lib. Cong.

[920] Plumer to Mason, Jan. 30, 1807, Plumer MSS. Lib. Cong.

Plumer's account of the proceedings is trustworthy. He was an eminent lawyer himself, was deeply interested in the case, and was writing to Jeremiah Mason, then the leader of the New England bar.

[921] _Eaton_: Prentiss, 396.

[922] See _supra_, 303-05.

Three days before he made oath to the truth of this story, Eaton's claim against the Government was referred to a committee of the House (see _Annals_, 9th Cong. 2d Sess. 383), and within a month from the time the historic affidavit was made, a bill was pa.s.sed, without debate, "authorizing the settlement of the accounts between the United States and William Eaton."

John Randolph was suspicious: "He believed the bill had pa.s.sed by surprise. It was not so much a bill to settle the accounts of William Eaton, as to rip up the settled forms of the Treasury, and to transfer the accountable duties of the Treasury to the Department of State. It would be a stain upon the Statute Book." (_Ib._ 622.)

The very next week after the pa.s.sage of this measure, Eaton received ten thousand dollars from the Government. (See testimony of William Eaton, _Trials of Colonel Aaron Burr_: Robertson, stenographer, I, 483.)

[923] "Eaton's story ... has now been served up in all the newspapers.... The amount of his narrative is, that he advised the President to send Burr upon an important emba.s.sy, BECAUSE!!! he had discovered the said Burr to be a _Traitor to his country_." (J. Q. Adams to L. C. Adams, Dec. 8, 1806, _Writings, J. Q. A._: Ford, III, footnote to 157.)

[924] Plumer, Jan. 30, 1807, "Diary," Plumer MSS. Lib. Cong.

[925] J. Q. Adams to his father, Jan. 30, 1807, _Writings, J. Q. A._: Ford, III, 159.

[926] Feb. 28, 1801, _Journal Exec. Proc. Senate_, I, 387. Cranch was so excellent a judge that, Federalist though he was, Jefferson reappointed him February 21, 1806. (_Ib._ II, 21.)

[927] Jefferson appointed Nicholas Fitzhugh of Virginia, November 22, 1803 (_ib._ I, 458), and Allen Bowie Duckett of Maryland, February 28, 1806 (_ib._ II, 25).

[928] J. Q. Adams to his father, Jan. 27, 1807, _Writings, J. Q. A._: Ford, III, 158.

[929] _Annals_, 9th Cong. 2d Sess. 44.

[930] On Friday afternoon the House adjourned till Monday morning.

[931] _Annals_, 9th Cong. 2d Sess. 402.

[932] _Annals_, 9th Cong. 2d Sess. 404-05.

[933] _Ib._ 410. Eppes was Jefferson's son-in-law.

[934] _Ib._ 412.

[935] _Ib._ 414-15.

[936] 4 Cranch, 76.

[937] 4 Cranch, 107. Justice Chase, who was absent because of illness, concurred with Johnson. (Clay to Prentiss, Feb. 15, 1807, _Priv.

Corres._: Colton, 15; also _Works_: Colton, IV, 15.)

Caesar A. Rodney, Jefferson's Attorney-General, declined to argue the question of jurisdiction.

[938] 4 Cranch, 125-37.

[939] 4 Cranch, 125-26.

[940] 4 Cranch, 127.

[941] See _supra_, 303-05.

[942] 4 Cranch, 128-29.

[943] See Appendix D.

In his translation Wilkinson carefully omitted the first sentence of Burr's dispatch: "Yours, post-marked 13th of May, is received." (Parton: _Burr_, 427.) This was not disclosed until the fact was extorted from Wilkinson at the Burr trial. (See _infra_, chap. VIII.)

[944] 4 Cranch, 131-32.

[945] 4 Cranch, 132-33.