If this were not so, then a man levying war in one part of the country might be construed to be present at and taking part in hostilities at the most distant point of the Republic--a partic.i.p.ator 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. "He may be proved to be guilty of an overt act laid in the indictment in which he had no personal partic.i.p.ation, by proving that he advised it, or that he committed other acts."[1269]
If Burr were guilty of treason in connection with the a.s.semblage on Blennerha.s.sett"s island, it was only because Burr procured the men to meet for the purpose of levying war against the United States. But the fact that he did procure the treasonable a.s.semblage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence--since the procuring of the a.s.semblage takes the place of presence at it. "If in one case," declared Marshall, "the presence of the individual make the guilt of the a.s.semblage his guilt, and in the other case the procurement by the individual make the guilt of the a.s.semblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses."[1270]
Neither presence nor procurement could, therefore, be proved by collateral testimony: "No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the const.i.tution and the law." And "if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured, or inferred, can satisfy the const.i.tution and the law.
"The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses," as required by the Const.i.tution.
"Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the a.s.sembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses."[1271]
To the objection that this could "scarcely ever" be done, since "the advising or procurement of treason is a secret transaction," the answer was, said Marshall, "that the difficulty of proving a fact 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 const.i.tution requires two." The true inference from "this circ.u.mstance" was "that the advising of the fact is not within the const.i.tutional definition of the crime. To advise or procure a treason ... is not treason in itself."[1272]
The testimony which the Government now proposed to offer was to "prove--what? the overt act laid in the indictment? that the prisoner was one of those who a.s.sembled at Blennerha.s.sett"s island? No!" 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 in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury."[1273]
Before closing, Marshall answered the threats of Hay and Wirt that, if he decided in favor of Burr, he would be impeached: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true.... No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pa.s.s from him without self reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace."[1274]
Let the jury apply the law as announced to the facts as proved and "find a verdict of guilty or not guilty as their own consciences shall direct."
The next morning the pet.i.t jury retired, but quickly returned.
Marshall"s brother-in-law, Colonel Edward Carrington, foreman, rose and informed the court that the jury had agreed upon a verdict.
"Let it be read," gravely ordered Marshall.
And Colonel Carrington read the words of that peculiar verdict:
"We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty."[1275]
Instantly Burr, Martin, Wickham, and Botts were on their feet protesting. This was no verdict, according to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure.
Discussion followed. Hay insisted that the verdict be received and recorded as returned. "It was like the whole play," exclaimed Martin, "Much Ado About Nothing." Of course the verdict must be corrected. Did the jury mean to "censure ... the court for suppressing irrelevant testimony?" Unthinkable! And if not, they ought to answer simply "Guilty" or "Not Guilty."[1276]
Colonel Carrington informed the court that, among themselves, the jury had said that "they would alter the verdict if it was informal--it was in fact 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 adopted it. Parker was "a violent Jeffersonian partisan," and Burr"s friends had reproved him for accepting such a man as a member of the jury.[1277]
Soothingly Marshall directed that the verdict "stand on the bill" as the jury wished it; but, since it was "in effect a verdict of acquittal,"
let "an entry be made on the record of "Not Guilty.""
The Chief Justice "politely thanked the jury for their patient attention during the whole course of this long trial, and then discharged them."[1278]
A week before Marshall delivered his opinion, an attempt was made to induce Blennerha.s.sett to betray Burr. On August 23 William Duane, editor of the _Aurora_, and an intimate friend, supporter, and agent of Jefferson, approached Blennerha.s.sett for that purpose, and offered to go to Washington, "now or at any time hereafter," in his behalf. Duane a.s.sured him that the Administration would refuse him (Duane) "nothing he should ask." But Blennerha.s.sett repulsed Duane"s advances.[1279]
Hay, angry and discomfited, entered a _nolle prosequi_ to the indictments of Dayton, Blennerha.s.sett, and the others for the same crime; but, in obedience to Jefferson"s orders, demanded that 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, after enduring another long argument, gently put the application aside because all the conspirators were now to be tried upon the charge of misdemeanor under the second indictment.[1281]
Marshall"s motives were clearer than ever to Jefferson. "The event has been what was evidently intended from the beginning of the trial; ...
not only to clear Burr, but 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 to depart until his testimony has been committed to writing.... These whole proceedings will be laid before Congress, that they may ... provide the proper remedy."[1282]
Jefferson ordered Hay to press for trial on the indictment for misdemeanor, not with the expectation of convicting Burr, but in the hope that some sort of testimony would be brought out that would convict 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 hearing testimony intended for use not against Burr, but against himself."[1283]
It was for this reason that Marshall, when the trial for misdemeanor began, threw open wide the doors to testimony.[1284]
Burr"s counsel, made unwise by victory, insisted that he should not be required to give bail, and Marshall, although the point had been decided and was not open to dispute, permitted and actually encouraged exasperatingly extended argument upon it.[1285] Burr had submitted to give bail at the beginning, said Botts, not because it was "demandable of right," but because he and his counsel "had reason to apprehend danger ... from the violence and turbulence of the mob."[1286]
Marshall was careful to deliver another long and, except for the political effect, wholly unnecessary opinion; nor was it directly on the matter at issue. Counsel floundered through a tangle of questions, Marshall exhibiting apparent indecision by manifesting great concern, even on the simplest points.
[Ill.u.s.tration: _John Marshall_ _From the portrait by Robert Matthew Sully, in the Corcoran Gallery of Art, Washington, D.C._]
Finally, he ordered that Burr "be acquitted and discharged" as to the indictment for treason, but to be held in five thousand dollars bail under the indictment for misdemeanor. Jonathan Dayton and William Langbourne offered themselves and were accepted as sureties; and on September 3, after nearly nine weeks of imprisonment, Burr walked out of court unhindered, no longer to be under lock and bar and armed guard.[1287]
Merry were the scenes in the houses of Richmond society that night; hilarious the rejoicing about the flowing board of Luther Martin; and, confused and afflicted with a blurred anger, the patriotic mult.i.tude talked resentfully of Marshall"s decision. On one side it was said that justice had prevailed and persecution had been defeated; on the other, that justice had been mocked and treason protected. Hay, Wirt, and MacRae were bitter and despondent; Edmund Randolph, Botts, Martin, and Burr, jubilant and aggressive.
Many conflicting stories sprang up concerning Marshall--his majestic bearing on the bench, his servility, his courage, his timidity. One of these has survived: "Why 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 would as soon have gone to Herschel, and told him that the people of America insisted that the moon had horns as a reason why he should draw her with them."[1288]
The captain of the "conspiracy" had never lost heart, and, save when angered by Marshall"s seeming inconsistency and indecision, had continued to be cheery and buoyant. Steadily he had a.s.sured his friends that, when acquitted, he would again take up and put through his plans.
This thought now dominated him. Blennerha.s.sett, upon visiting his chief, found Burr "as gay as usual, and as busy in speculations on reorganizing his projects for action as if he had never suffered the least interruption," with better prospects for success than ever.[1289]
Quick to press his advantage, Burr the next morning demanded the production of the letters called for in the subpoena _duces tec.u.m_ to Jefferson. These had not been forthcoming, and Burr a.s.serted 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 one of the letters; that it had not "the most distant bearing on the subject," and that he might prefer "to be put in prison" rather than disclose its contents.[1291]
Jefferson had become very nervous about Marshall"s order and plainly feared that the Chief Justice might attempt to enforce it. The thought frightened him; he had no stomach for a direct 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 attorney to tell the United States Marshal to obey no order of the court and to intimate to the Chief Justice the wisdom of deferring the vexed question until the next session of Congress.
He wrote, said Jefferson, "in a spirit of conciliation and with the desire to avoid conflicts of authority between the high branches of the government which would discredit equally at home and abroad." Naturally Burr and his counsel would like "to convert this trial into a contest between the judiciary & Exve Authorities"; but he had not "expected ...
that the Ch. Justice would lend himself to it." Surely Marshall"s "prudence and good sense" would not "permit him to press it."
But if Marshall was determined to attack Jefferson and "issue any process which [would] involve any act of force to be committed 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 be done quicker than by post; and ... moreover ... advise the marshal on his conduct as he will be critically placed between us."
The "safest way" for that officer to pursue "will be to take no part in the exercise of any act of force ordered in this case. The powers given the Exve by the constn are sufficient to protect the other branches from judiciary usurpation of pre-eminence, & every individual also from judiciary vengeance, and the marshal may be a.s.sured of it"s effective exercise to cover him."
Such was Jefferson"s threat to use force against the execution of the process of the National courts. But the President went on: "I hope however that the discretion of the C. J. will suffer this 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 functionaries in proper cases, without breaking up the government. _Will not the a.s.sociate judge_ [Cyrus Griffin] _a.s.sume to divide his court and procure a truce at least in so critical a conjuncture?_"[1292]
When Hay acknowledged that he had one of the letters from Wilkinson to Jefferson, a subpoena _duces tec.u.m_ was served on the District Attorney, notwithstanding his gallant 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 "material for the purposes of justice," declining to give those pa.s.sages which Jefferson deemed "confidential."[1293] Burr insisted on the production of the entire letter.
Botts moved that the trial be postponed "till the letter shall be produced." Another of that unending series of arguments followed,[1294]
and still another of Marshall"s cautious but convincing opinions came forth. Jefferson, he said, had not forbidden the production of the letter--the President, in response to the subpoena upon him, had sent the doc.u.ment 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, Jefferson had declined to produce the letter, his "motives may [have been] such as to restrain the court" from compelling him to do so.[1295] At least Burr might see the letter now; consideration of the other features of the controversy would be deferred.[1296]
The distracted Hay, his sour temper made more acid by a "greatly aggravated influenza," wrote Jefferson of the Government"s predicament; 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 could foresee what will be the state of his nerves. Wirt, who has. .h.i.therto advocated the _integrity_ of the Chief Justice, now abandons him."
The District Attorney dolefully tells the President that he is "very decidedly of the opinion, that these prosecutions will terminate in nothing." He thinks the Government 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 Burr, Blennerha.s.sett, and Smith to be transferred to some spot where their crime might be proved. "Instruct me," he begs Jefferson, "specially on this point."[1297]
Jefferson, now on his vacation at Monticello, directed Hay to press at Richmond the trial of Burr for misdemeanor. "If defeated it will heap coals of fire on the head of the judge; if convicted, it will give them time to see whether a prosecution for treason can be inst.i.tuted against him in any, and what court." A second subpoena _duces tec.u.m_ seems to have been issued against Jefferson,[1298] and he defiantly refused to "sanction a proceeding so preposterous," by "any notice" of it.[1299]
And there this heated and dangerous controversy appears to have ended.[1300]
Finally, the hearing of evidence began on the indictment against Burr for misdemeanor--for having conducted an attack upon Mexico. For seven weeks the struggle went on. The Government"s attorneys showed the effects of the long and 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 to his enemies."[1301] Only Wirt, with his fine gallantry of spirit, bore himself manfully.
Motions, arguments, opinions continued. One of Marshall"s rulings on the admissibility of evidence moved Blennerha.s.sett to ecstasies.[1302]
More than fifty witnesses were examined, the heavy preponderance of the evidence clearly showing that Burr"s purpose and expectations had been to settle the Was.h.i.ta lands and, in case the United States went to war with 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 between America and Spain, except that of Wilkinson, Eaton, Taylor, Allbright, and the Morgans, as already set out. One witness also told of a wild and fanciful talk by the eccentric and imaginative Blennerha.s.sett.[1303]
The credibility of Dunbaugh was destroyed. Wilkinson was exposed in a despicable light,[1304] and Eaton appeared more fantastic than ever; but both these heroes put on looks of lofty defiance. The warrior-diplomat of Algerian fame had now fallen so low in the public esteem that one disgusted Virginian had threatened to kick him out of a room.[1305]
On September 15, 1807, the District Attorney, by attempting to enter a _nolle prosequi_ on the indictment of Burr for misdemeanor, tried to prevent the jury from rendering a verdict.[1306] One member of the jury wanted that body to return a special finding; but his a.s.sociates would have none of it, and in half an hour they reported a straight verdict of "Not Guilty."[1307]
Hay dismissed further proceedings against Smith and Blennerha.s.sett on the indictments for misdemeanor, and then moved to commit Burr and his a.s.sociates upon the charge of treason by "levying war" within the jurisdiction of the United States Court for the District of Ohio.[1308]
On this motion, Marshall, as an examining magistrate, gave the Government wide scope in the introduction of testimony, to the immense disgust of the triply accused men. Blennerha.s.sett 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 ... and should in future be put right by strong language." So angered was he with Marshall"s "wavering," that at times "Burr ... would not trust himself to rise up to sum up and condense the forces displayed by his counsel, into compact columns, after the engagement, toward the close of the day, as is generally his practice."[1310]