John Marshall and the Constitution Part 2

"[If, then,] an act of the legislature, repugnant to the Const.i.tution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it const.i.tute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Const.i.tution; if both the law and the Const.i.tution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Const.i.tution, or conformably to the Const.i.tution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"[However, there are those who maintain] that courts must close their eyes on the Const.i.tution, and see only the law.... This doctrine would subvert the very foundation of all written const.i.tutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual.

"[Moreover,] the peculiar expressions of the Const.i.tution of the United States furnish additional arguments in favor of its rejection. The judicial power of the United States is extended to all cases arising under the Const.i.tution. Could it be the intention of those who gave this power, to say that in using it the Const.i.tution should not be looked into? That a case arising under the Const.i.tution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.

"In some cases, then, the Const.i.tution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the Const.i.tution which serve to ill.u.s.trate this subject.... 'No person,' says the Const.i.tution, 'shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.' Here the language of the Const.i.tution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. If the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the const.i.tutional principle yield to the legislative act?...

"It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of the land, the Const.i.tution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the Const.i.tution, have that rank.

"Thus, the particular phraseology of the Const.i.tution of the United States confirms and strengthens the principle, supposed to be essential to all written const.i.tutions, that a law repugnant to the Const.i.tution is void; and that courts, as well as other departments are bound by that instrument."

There is not a false step in Marshall's argument. It is, for instance, not contended that the language of the Const.i.tution establishes judicial review but only that it "confirms and strengthens the principle." Granting the finality of judicial decisions and that they may not be validly disturbed by legislative enactment, the argument is logically conclusive, whatever practical difficulties it may ignore.

Turning back to the case itself, we ought finally to note how Marshall utilized this opportunity to make manifest the newly found solidarity of the Court. For the first time in its history the Court was one voice, speaking through its Chief Justice the ineluctable decrees of the law. Ordinarily even Marshall would not have found this achievement an easy task, for there were difficult personalities among his a.s.sociates. He had in Adams's Cabinet demonstrated his faculty "of putting his ideas into the minds of others, unconsciously to them," and of this power he now made use, as well as of the advantage to be obtained from the impending common danger.

The case of Marbury vs. Madison was decided on February 24, 1803, and therefore fell between two other events which were immediately of almost as great importance in the struggle now waxing over the judiciary. The first of these was the impeachment of Judge Pickering of the New Hamps.h.i.+re District Court, which was suggested by the President on the 3d of February and voted by the House on the 18th of February; the other was an address which Justice Chase delivered on the 2d of May to a Baltimore grand jury, a.s.sailing the repeal of the Judiciary Act and universal suffrage and predicting the deterioration of "our republican Const.i.tution... into a mobocracy, the worst of all possible governments." * Considering the fact that the President was still smarting from the Chief Justice's lash and also that Chase himself was more heartily detested by the Republicans than any other member of the Supreme Bench, nothing could have been more untimely than this fresh judicial excursion into the field of "manners and morals," and partisan malice was naturally alert to interpret it as something even more offensive. The report soon came from Baltimore that Chase had deliberately a.s.sailed the Administration as "weak, pusillanimous, relaxed," and governed by the sole desire of continuing "in unfairly acquired power." But even before this intelligence arrived, Jefferson had decided that the opportunity afforded by Chase's outburst was too good a one to be neglected. Writing on the 13th of May to Nicholson of Maryland, who already had Pickering's impeachment in charge, the President inquired: "Ought this seditious and official attack on the principles of our Const.i.tution and the proceedings of a State go unpunished?" But he straightway added: "The question is for your consideration; for myself it is better I should not interfere."

* The account here given of Chase's trial is based on Charles Evans's shorthand "Report" (Baltimore, 1805), supplemented by J.Q.

Adams's "Memoirs".

Pickering's trial began on March 2, 1804, and had a bearing on Chase's fate which at once became clear. The evidence against the New Hamps.h.i.+re judge showed intoxication and profanity on the bench and entire unfitness for office, but further evidence introduced in his behalf proved the defendant's insanity; and so the question at once arose whether an insane man can be guilty of "high crimes and misdemeanors?" Greatly troubled by this new aspect of the case, the Senate none the less voted Pickering guilty "as charged," by the required two-thirds majority, though eight members refused to vote at all. But the exponents of "judge-breaking" saw only the action of the Senate and were blind to its hesitation. On the same day on which the Senate gave its verdict on d.i.c.kering, the House by a strictly partisan vote decreed Chase's impeachment.

The charges against Chase were finally elaborated in eight articles. The substance of the first six was that he had been guilty of "oppressive conduct" at the trials of John Fries and James Thompson Callender. The seventh charged him with having attempted at some time in 1800 to dragoon a grand jury at Newcastle, Delaware, into bringing forward an accusation of sedition against a local paper. These seven articles related therefore to transactions already four or five years old. The eighth article alone was based on the address at Baltimore, which it characterized as "an intemperate and inflammatory political harangue," delivered "with intent to excite the fears and resentment... of the good people of Maryland against their State Government and Const.i.tution,... and against the Government of the United States."

But the charges framed against Chase revealed only imperfectly the animus which was now coming more and more to control the impeachers. Fortunately, however, there was one man among the President's advisers who was ready to carry the whole antijudicial program as far as possible. This uncompromising opponent was William Branch Giles, Senator from Virginia, whose views on the subject of impeachment were taken down by John Quincy Adams just as Chase's trial was about to open. Giles, according to this record, "treated with the utmost contempt the idea of an INDEPENDENT JUDICIARY-said there was not a word about their independence in the Const.i.tution.... The power of impeachment was given without limitation to the House of Representatives; the power of trying impeachment was given equally without limitation to the Senate; and if the Judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconst.i.tutional, or to send a mandamus to the Secretary of State, as they had done, it was the unreserved right of the House of Representatives to impeach them, and that of the Senate to remove them, for giving such opinions, however, honest or sincere they may have been in entertaining them." For "impeachment was not a criminal prosecution, it was no prosecution at all." It only signified that the impeached officer held dangerous opinions and that his office ought to be in better hands. "I perceive," adds Adams, on his own account, "that the impeachment system is to be pursued, and the whole bench of the Supreme Court to be swept away, because THEIR OFFICES are wanted. And in the present state of things I am convinced it is as easy for Mr. John Randolph and Mr. Giles to do this as to say it."

The trial formally opened on January 2, 1805, though the taking of testimony did not begin until the 9th of February. A contemporary description of the Senate chamber shows that the apostles of Republican simplicity, with the pomp of the Warren Hastings trial still fresh in mind, were not at all averse to making the scene as impressive as possible by the use of several different colors of cloth: "On the right and left of the President of the Senate, and in a right line with his chair, there are two rows of benches with desks in front, and the whole front and seats covered with crimson cloth.... A temporary semi-circular gallery, which consists of three ranges of benches, is elevated on pillars and the whole front and seats thereof covered with green cloth.... In this gallery ladies are accommodated.... On the right and left hand of the President ... are two boxes of two rows of seats... that facing the President's right is occupied by the managers... that on the other side of the bar for the accused and his counsel... these boxes are covered with blue cloth." To preside over this scene of somewhat dubious splendor came Aaron Burr, Vice-President of the United States, straight from the dueling ground at Weehawken.

The occasion brought forward one of the most extraordinary men of the day, Luther Martin, Chase's friend and the leader of his counsel. Born at New Brunswick, New Jersey, in 1744, Martin graduated from Princeton in 1766, the first of a cla.s.s of thirty-five, among whom was Oliver Ellsworth. Five years later he began to practice law on the Eastern Sh.o.r.e of Maryland and in the adjoining counties of Virginia, where he won an immediate success, especially in criminal cases. At a single term of court, out of thirty defendants he procured the acquittal of twenty-nine, while the thirtieth, indicted for murder, was convicted of manslaughter. In 1805 Martin was the acknowledged head of the American Bar, but at the same time he was undoubtedly a drunkard and a spendthrift. With an income of $10,000 a year, he was always in need. His mediocre stature, thinning locks, and undistinguished features created an impression which was confirmed by his slovenly attire and ungrammatical speech, which seemed "shackled by a preternatural secretion of saliva." Here, indeed, for ugliness and caustic tongue was "the Thersites of the law." Yet once he was roused to action, his great resources made themselves apparent: a memory amounting to genius, a boyish delight in the rough-and-tumble of combat, a wealth of pa.s.sion, kept in perfect curb till the enemy was already in rout before solid argument and then let loose with destroying effect. This child of nature was governed in his practice of the law less by retainers than by his personal loves and hatreds. Samuel Chase he loved and Thomas Jefferson he hated, and though his acquaintance with criminals had furnished him with a vituperative vocabulary of some amplitude, he considered no other d.a.m.nation quite so scathing as to call a man "as great a scoundrel as Tom Jefferson."

The impeachers had no one whom they could pit against this "unprincipled and impudent Federalist bulldog," as Jefferson called him; and in other ways, too, from the first their lot was not easy. For one thing, they could not agree among themselves as to the proper scope of impeachment under the Const.i.tution. Randolph, the leader of the House managers, and Campbell adhered in essence to Giles's theory. But Rodney and Nicholson, both much abler lawyers, openly disavowed such lat.i.tudinarian doctrine. In a general way, their view of the matter may be stated thus: Because judges of the United States are guaranteed continuance in office only during "good behavior," and because impeachment is the only method of removal recognized by the Const.i.tution, the "high crimes and misdemeanors" for which impeachment is the const.i.tutional resource must include all cases of willful misconduct in office, whether indictable or not. This seems sound theory and appears today to be established theory. But sound or not, the managers of the Republicans were not a unit in urging it, while their opponents put forward with confidence and unanimity the theory that "high crimes and misdemeanors" were always indictable offenses.

More calamitous still for the accusers of Chase was the way in which, when the evidence began to come in, the case against him started crumpling at the corners. Lewis, who had been Fries's attorney and whose testimony they had chiefly relied upon to prove the judge's unfairness on that occasion, had not only acknowledged that his memory was "not very tenacious" after so great a lapse of time but had further admitted that he had really dropped the case because he thought it "more likely that the President would pardon him [Fries] after having been convicted without having counsel than if he had." Similarly Hay, whose repeated efforts to bring the question of the const.i.tutionality of the Sedition Act before the jury had caused the rupture between court and counsel in Callender's case, owned that he had entertained "but little hopes of doing Callender any good" but had "wished to address the public on the const.i.tutionality of the law." Sensations multiplied on every side. A man named Heath testified that Chase had told the marshal to strike all Democrats from the panel which was to try Callender; whereupon a second witness called to confirm this testimony stated facts which showed the whole story to be a deliberate fabrication. The story that Chase had attacked the Administration at Baltimore was also substantially disproved by the managers' own witnesses. But the climax of absurdity was reached in the fifth and sixth articles of impeachment, which were based on the a.s.sumption that an act of Congress had required the procedure in Callender's case to be in accordance with the law of Virginia. In reply to this argument Chase's attorneys quickly pointed out that the statute relied upon applied only to actions between citizens of different States!

The final arguments began on the 20th of February. The first speech in behalf of Chase was delivered by Joseph Hopkinson, a young Philadelphia attorney, whose effort stirred the admiration of Federalists and Republicans alike. He dwelt upon "the infinite importance" of the implications of this case for the future of the Republic, contrasted the frivolity of the charges brought against Chase with the magnitude of the crimes of which Warren Hastings had been accused, and pointed out that, whereas in England only two judges had been impeached in half a century, in America, "boasting of its superior purity and virtue," seven judges had been prosecuted within two years. More loosely wrought, but not less effective was Martin's address, the superb climax of a remarkable forensic career! The accusation against Chase he reduced to a charge of indecorum, and he was ready to admit that the manner of his friend "bore a stronger resemblance to that of Lord Thurlow than of Lord Chesterfield," but, said he, our judges ought not to be "like the G.o.ds of Epicurus lolling upon their beds of down, equally careless whether the laws of their country are obeyed or violated, instead of ACTIVELY discharging their duties."

The closing argument, which fell to the managers, was a.s.signed to Randolph. It was an unmitigated disaster for the cause in behalf of which it was p.r.o.nounced. "I feel perfectly inadequate to the task of closing this important debate on account of a severe indisposition which I labor under," were Randolph's opening words, but even this prefatory apology gave little warning of the distressing exhibition of incompetence which was to follow. "On the reopening of the court," records John Quincy Adams in his "Memoirs," "he [Randolph] began a speech of about two hours and a half, with as little relation to the subject-matter as possible... without order, connection, or argument; consisting altogether of the most hackneyed commonplaces of popular declamation, mingled up with panegyrics and invectives upon persons, with a few well-expressed ideas, a few striking figures, much distortion of face and contortion of body, tears, groans and sobs, with occasional pauses for recollection, and continual complaints of having lost his notes." So ended the ambition of John Randolph of Roanoke to prove himself another Burke!

But while their frontal a.s.sault on the reason of the court was thus breaking down, the impeachers, led by the President, were attempting a flank movement on its virtue. They especially distrusted the "steadiness" of certain New England and New York Senators and hoped to reach the hearts of these gentlemen through Aaron Burr, the Vice-President. Burr had heretofore found himself vested with the role of Lucifer in the Republican Paradise. Now he found himself suddenly basking in a perpetual sunburst of smiles both from the great central luminary, Jefferson, and his paler satellites, Madison and Gallatin. Invitations to the President's dinners were soon followed by more substantial bribes. Burr's step-son became judge of the Superior Court at New Orleans; his brother-in-law, secretary to the Louisiana Territory; his intimate friend Wilkinson, its military commandant. Then Giles, whose view of impeachment left him utterly shameless in the matter, drew up and circulated in the Senate itself a pet.i.tion to the Governor of New Jersey asking him to quash the indictment for murder which the Bergen County grand jury had found against Burr as a result of the duel with Hamilton. At the same time, an act was pa.s.sed giving the retiring Vice-President the franking privilege for life. In the debate Senator Wright of Maryland declared that dueling was justified by the example of David and Goliath and that the bill was opposed "only because our David had slain the Goliath of Federalism."

Whether Burr made any attempt to render the expected quid pro quo for these favors does not appear, but at least if he did, his efforts were fruitless. The vote on the impeachment of Chase was taken on the 1st of March, and the impeachers were crus.h.i.+ngly defeated. On the first article they could muster only sixteen votes out of thirty-four; on the second, only ten; on the fifth, none; on the sixth, four. Even on the last article, where they made their best showing, they were still four votes short of the required const.i.tutional majority. When the result of the last ballot was announced, Randolph rushed from the Senate chamber to the House to introduce a resolution proposing an amendment to the Const.i.tution, requiring that judges of the United States "shall be removed by the President on joint address of both Houses of Congress." At the same time Nicholson moved an amendment providing legislative recall for Senators. Thus exasperation was vented and no harm done.

Meanwhile word had come from Philadelphia that the impeachment of the State Supreme Court judges had also failed. Here, even more impressively than in the case of Chase, had been ill.u.s.trated that solidarity of Bench and Bar which has ever since been such an influential factor in American government. The Pennsylvania judge-breakers, failing to induce a single reputable member of the Philadelphia bar to aid them, had been obliged to go to Delaware, whence they procured Caesar A. Rodney, one of the House managers against Chase. The two impeachments were thus closely connected and their results were similar. In the first place, it was determined that impeachment was likely to be, in the petulant language of Jefferson, "a farce" not soon to be used again for partisan purposes. In the second place, it was probable that henceforth, in the Commonwealths as well as in the National Government, political power would be exercised subject to const.i.tutional restraints applied judicially. In the third place, however, the judges would henceforth have to be content with the possession of this magnificent prerogative and dispense with all judicial homilies on "manners and morals." It was a fair compromise and has on the whole proved a beneficial one.

CHAPTER IV. The Trial Of Aaron Burr

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. * Near Marietta on an island in the Ohio River, Burr came upon Harman Blennerha.s.sett, 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 Was.h.i.+ngton.

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

In the summer of 1806 Burr turned westward a second time and with the a.s.sistance of Blennerha.s.sett 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 doc.u.ment 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 Was.h.i.+ngton, together with circ.u.mstantial 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 Was.h.i.+ta, 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 leaders.h.i.+p of Blennerha.s.sett 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 c.u.mberland. 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 a.s.sociate, 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 circ.u.mstances 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 a.s.signing 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 a.s.sisted 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, Blennerha.s.sett, 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 partic.i.p.ant 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 Const.i.tution 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 Was.h.i.+ngton, 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 a.s.sembled his troops, to procure affidavits establis.h.i.+ng 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 c.u.mberland 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 Const.i.tution 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 tec.u.m 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 circ.u.mstances 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 a.s.sumed 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 h.e.l.lhounds 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 const.i.tutional 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 const.i.tute 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 const.i.tutional 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 Blennerha.s.sett'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, b.u.t.ter, 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." * Little wonder that such goings-on are said to have "filled the measure of Jefferson's disgust."

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

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 const.i.tutional 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 Was.h.i.+ngton 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 Const.i.tution.

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 a.s.serted their belief in the treasonable character of Burr's designs. Finally a series of witnesses, the majority of them servants of Blennerha.s.sett, testified that on the evening of December 10, 1806, Burr's forces had a.s.sembled on the island.

This line of testimony concluded, the prosecution next indicated its intention of introducing evidence to show Burr's connection with the a.s.semblage 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 Const.i.tution, the a.s.semblage on Blennerha.s.sett'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 const.i.tutional provision regarding treason was to be interpreted in the light of the Common Law doctrine that "in treason all are princ.i.p.als." For if it were to be so interpreted and if Burr's connection with the general conspiracy culminating in the a.s.semblage was demonstrable by any sort of legal evidence, then the a.s.semblage was his act, his overt act, proved moreover by thrice the two witnesses const.i.tutionally 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 const.i.tutional 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 pa.s.sage in which he contrasted Burr and the pathetic victim of his conspiracy:

"Who [he asked] is Blennerha.s.sett? 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 comes... to change this paradise into a h.e.l.l .... By degrees he infuses [into the heart of Blennerha.s.sett] 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 s.h.i.+vering 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 princ.i.p.al 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!"