Marshall had carefully written his opinion. At the close of court on the preceding day, he had announced that he would do this in order "to prevent any misrepresentations of expressions that might fall on him."
He had also a.s.sured Hay that, in case he decided to commit Burr, the District Attorney should be heard at any length he desired on the question of bail.
Thus, at the very beginning, Marshall showed that patience, consideration, and prudence so characteristic of him, and so indispensable to the conduct of this trial, if dangerous collisions with the prevailing mob spirit were to be avoided. He had in mind, too, the haughty and peremptory conduct of Chase, Addison, and other judges which had given Jefferson his excuse for attacking the Judiciary, and which had all but placed that branch of the Government in the absolute control of that great practical genius of political manipulation. By the gentleness of his voice and manner, Marshall lessened the excuse which Jefferson was eagerly seeking in order again to inflame the pa.s.sions of the people against the Judiciary.
Proof strong enough to convict "on a trial in chief," or even to convince the judge himself of Burr"s guilt, was not, said Marshall, necessary to justify the court in holding him for the action of the grand jury; but there must be enough testimony "to furnish good reason to believe" that Burr had actually committed the crimes with which he stood charged.
Marshall quoted Blackstone to the effect that a prisoner could be discharged only when it appeared that the suspicion against him was "wholly groundless," but this did not mean that "the hand of malignity may grasp any individual against whom its hate may be directed or whom it may capriciously seize, charge him with some secret crime and put him on the proof of his innocence."
Precisely that "hand of malignity," however, Burr was feeling by orders of Jefferson. The partisans of the President instantly took alarm at this pa.s.sage of Marshall"s opinion. Here was this insolent Federalist Chief Justice, at the very outset of the investigation, presuming to reflect upon their idol. Such was the indignant comment that ran among the Republicans who packed the hall; and reflect upon the President, Marshall certainly did, and intended to do.
The softly spoken but biting words of the Chief Justice were unnecessary to the decision of the question before him; they accurately described the conduct of the Administration, and they could have been uttered only as a rebuke to Jefferson or as an attempt to cool the public rage that the President had aroused. Perhaps both motives inspired Marshall"s pen when he wrote that statesmanlike sentence.[988]
On the whole, said Marshall, probable cause to suspect Burr guilty of an attempt to attack the Spanish possessions appeared from Wilkinson"s affidavit; but the charge of treason was quite another matter. "As this is the most atrocious offence which can be committed against the political body, so it is the charge which is most capable of being employed as the instrument of those malignant and vindictive pa.s.sions which may rage in the bosoms of contending parties struggling for power." Treason is the only crime specifically mentioned in the Const.i.tution--the definition of all others is left to Congress. But the Const.i.tution itself carefully and plainly describes treason and prescribes just how it must be proved.
Did the testimony show probable grounds for believing that Burr had committed treason? Marshall a.n.a.lyzed the affidavits of Eaton and Wilkinson, which const.i.tuted all of the "evidence" against Burr; and although the whole matter had been examined by the Supreme Court in the case of Bollmann and Swartwout, he nevertheless went over the same ground again. No impatience, no hasty or autocratic action, no rudeness of manner, no harshness of speech on his part should give politicians a weapon with which once more to strike at judges and courts.
Where, asked Marshall, was the evidence that Burr had a.s.sembled an army to levy war on the United States? Not before the court, certainly. Mere "suspicion" was not to be ignored when means of proving the suspected facts were not yet secured; but where the truth could easily have been established, if it existed, and yet no proof of it had been brought forward, everybody "must admit that the ministers of justice at least ought not officially to entertain" unsupported conjectures or a.s.sertions.
"The fact to be proved ... is an act of public notoriety. It must exist in the view of the world, or it cannot exist at all.... Months have elapsed since the fact did occur, if it ever occurred. More than five weeks have elapsed since the ... supreme court has declared the necessity of proving the fact, if it exists. Why is it not proved?" It is, said Marshall, the duty of the Executive Department to prosecute crimes. "It would be easy" for the Government "to procure affidavits"
that Burr had a.s.sembled troops five months ago. Certainly the court "ought not to believe that there had been any remissness" on the part of the Administration; and since no evidence had been presented that Burr had gathered soldiers, "the suspicion, which in the first instance might have been created, ought not to be continued, unless this want of proof can be in some manner accounted for."
Marshall would, therefore, commit Burr for high misdemeanor, but not for treason, and must, of consequence, admit the prisoner to bail. The Chief Justice suggested the sum of ten thousand dollars as being "about right."[989] Hay protested that the amount was too small. Burr "is here among strangers," replied Wickham. He has fewer acquaintances in Richmond than anywhere in the country. To be sure, two humane men had saved the prisoner "from the horrors of the dungeon" when he arrived; but the first bail was only for two days, while the present bail was for an indefinite period. "Besides," a.s.serted Wickham, "I have heard several gentlemen of great respectability, who did not doubt that colonel Burr would keep his recognisance, express an unwillingness to appear as bail for him, lest it might be supposed they were enemies to their country."[990]
Thus were cleverly brought into public and official view the conditions under which this trial, so vital to American liberty, was to be held.
Burr was a "traitor," a.s.serted Jefferson. "Burr a traitor!" echoed the general voice. That all who befriended Burr were, therefore, also "traitors at heart," was the conclusion of popular logic. Who dared brave the wrath of that blind and merciless G.o.d, Public Prejudice? From the very beginning the prosecution invoked the power of this avenging and remorseless deity, while the defense sought to break that despotic spell and arouse the spirit of opposition to the tyranny of it. These facts explain the legal strategy of the famous controversy--a controversy that continued throughout the sweltering months of the summer and far into the autumn of 1807.
Hay declared that he had been "well informed that Colonel Burr could give bail in the sum of one hundred thousand dollars." Gravely Burr answered that there was serious doubt whether bail in any sum could be procured; "gentlemen are unwilling to expose themselves to animadversions" which would be the result of their giving bail for him.
He averred that he had no financial resources. "It is pretty well known that the government has ordered my property seized, and that the order has been executed." He had thus lost "upwards of forty thousand dollars," and his "credit had consequently been much impaired."[991]
Marshall, unmoved by the appeals of either side, fixed the bail at ten thousand dollars and adjourned court until three o"clock to enable Burr to procure sureties for that amount. At the appointed hour the prisoner came into court with five men of property who gave their bond for his appearance at the next term of the United States Circuit Court, to be held at Richmond on May 22.
For three precious weeks at least Aaron Burr was free. He made the best of his time, although he could do little more than perfect the plans for his defense. His adored Theodosia was in alternate rage and despair, and Burr strove to cheer and steady her as best he might. Some of "your letters," he writes, "indicate a sort of stupor"; in others "you rise into phrenzy." He bids her come "back to reason.... Such things happen in all democratic governments." Consider the "vindictive and unrelenting persecution" of men of "virtue, ... independence and ... talents in Greece and Rome." Let Theodosia "amuse" herself by collecting instances of the kind and writing an essay on the subject "with reflections, comments and applications." The perusal of it, he says, will give him "great pleasure" if he gets it by the time court opens in May.[992]
Burr learned the names of those who were to compose the grand jury that was to investigate his misdeeds. Among them were "twenty democrats and four federalists," he informs his daughter. One of "the former is W. C.
Nicholas my vindictive ... personal enemy--the most so that could be found in this state. The most indefatigable industry is used by the agents of government, and they have money at command without stint. If I were possessed of the same means, I could not only foil the prosecutors, but render them ridiculous and infamous. The democratic papers teem with abuse of me and my counsel, and even against the chief justice. Nothing is left undone or unsaid which can tend to prejudice the public mind, and produce a conviction without evidence. The machinations of this description which were used against Moreau in France were treated in this country with indignation. They are practiced against me in a still more impudent degree, not only with impunity, but with applause; and the authors and abettors suppose, with reason, that they are acquiring favour with the administration."[993]
Every word of this was true. The Republican press blazed with denunciation of "the traitor." The people, who had been led to believe that the destruction of their "liberties" had been the object at which Burr ultimately aimed, were intent on the death of their would-be despoiler. Republican politicians were nervously apprehensive lest, through Marshall"s application of the law, Burr might escape and the Administration and the entire Republican Party thereby be convicted of persecuting an innocent man. They feared, even more, the effect on their political fortunes of being made ridiculous.
Giles was characteristically alert to the danger. Soon after Marshall had declined to commit Burr for treason and had released him under bail to appear on the charge of misdemeanor only, the Republican leader of the Senate, then in Virginia, wrote Jefferson of the situation.
The preliminary hearing of Burr had, Giles stated, greatly excited the people of Virginia and probably would "have the same effect in all parts of the United States." He urged the President to take "all measures necessary for effecting ... a full and fair judicial investigation." The enemies of the Administration had gone so far as to "suggest doubts" as to the "measures heretofore pursued in relation to Burr," and had dared to "intimate that the executive are not possessed of evidence to justify those measures"--or, if there was such evidence, that the prosecution had been "extremely delinquent in not producing it at the examination."
Nay, more! "It is even said that General Wilkinson will not be ordered to attend the trial." That would never do; the absence of that militant patriot "would implicate the character of the administration, more than they can be apprised of."[994]
But Jefferson was sufficiently alarmed without any sounding of the tocsin by his Senatorial agent. "He had so frightened the country ...
that to escape being overwhelmed by ridicule, he must get his prisoner convicted of the fell designs which he had publically attributed to him."[995] It is true that Jefferson did not believe Burr had committed treason;[996] but he had formally declared to Congress and the country that Burr"s "guilt is placed beyond question," and, at any cost, he must now make good that charge.[997]
From the moment that he received the news of Marshall"s decision to hold Burr for misdemeanor and to accept bail upon that charge, the prosecution of his former a.s.sociate became Jefferson"s ruling thought and purpose. It occupied his mind even more than the Nation"s foreign affairs, which were then in the most dangerous state.[998] Champion though he was of equal rights for all men, yet any opposition to his personal or political desires or interests appeared to madden him.[999]
A personal antagonism, once formed, became with Thomas Jefferson a public policy.
He could see neither merit nor honesty in any act or word that appeared to him to favor Burr. Anybody who intimated doubt of his guilt did so, in Jefferson"s opinion, for partisan or equally unworthy reasons. "The fact is that the Federalists make Burr"s cause their own, and exert their whole influence to shield him," he a.s.serted two days after Marshall had admitted Burr to bail.[1000] His hatred of the National Judiciary was rekindled if, indeed, its fires ever had died down. "It is unfortunate that federalism is still predominant in our judiciary department, which is consequently in opposition to the legislative & Executive branches & is able to baffle their measures often," he averred at the same time, and with reference to Marshall"s rulings thus far in the Burr case.
He pours out his feelings with true Jeffersonian bitterness and pa.s.sion in his answer to Giles"s letter. No wonder, he writes, that "anxiety and doubt" had arisen "in the public mind in the present defective state of the proof." This tendency had "been sedulously encouraged by the tricks of the judges to force trials before it is possible to collect the evidence dispersed through a line of two thousand miles from Maine to Orleans."
The Federalists too were helping Burr! These miscreants were "mortified only that he did not separate the Union and overturn the government."
The truth was, declares Jefferson, that the Federalists would have joined Burr in order to establish "their favorite monarchy" and rid themselves of "this hated republic," if only the traitor had had "a little dawn of success." Consider the inconsistent att.i.tude of these Federalists. Their first "complaint was the supine inattention of the administration to a treason stalking through the land in the open light of day; the present one, that they [the Administration] have crushed it before it was ripe for execution, so that no overt acts can be proved."
Jefferson confides to Giles that the Government may not be able to establish the commission of overt acts; in fact, he says, "we do not know of a certainty yet what will be proved." But the Administration is already doing its very best: "We have set on foot an inquiry through the whole of the country which has been the scene of these transactions to be able to prove to the courts, if they will give time, or to the public by way of communication to Congress, what the real facts have been"--this three months after Jefferson had a.s.serted, in his Special Message on the conspiracy, that Burr"s "guilt is placed beyond question."
In this universal quest for "the facts," the Government had no help from the National courts, complains the President: "Aided by no process or facilities from Federal Courts,[1001] but frowned on by their new-born zeal for the liberty of those whom we would not permit to overthrow the liberties of their country, we can expect no revealments from the accomplices of the chief offender." But witnesses would be produced who would "satisfy the world if not the judges" of Burr"s treason. Jefferson enumerates the "overt acts" which the Administration expected to prove.[1002]
Marshall, of course, stood in the way, for it was plain that "the evidence cannot be collected under 4 months, probably 5." Jefferson had directed his Attorney-General, "unofficially," but "expressly," to "inform the Chief Justice of this." With what result? "Mr. Marshall says, "more than 5 weeks have elapsed since the opinion of the Supreme Court has declared the necessity of proving the overt acts if they exist. Why are they not proved?" In what terms of decency," growls Jefferson, "can we speak of this? As if an express could go to Natchez or the mouth of the c.u.mberland and return in 5 weeks, to do which has never taken less than twelve."
Jefferson cannot sufficiently criticize Marshall"s opinion: "If, in Nov.
or Dec. last, a body of troops had a.s.sembled on the Ohio, it is impossible to suppose the affidavits establishing the fact could not have been obtained by the last of March," he quotes from Marshall"s ruling. "I ask the judge where they [the affidavits] should have been lodged? At Frankfort? at Cincinnati? at Nashville? St. Louis?... New Orleans?... Where? At Richmond he certainly meant, or meant only to throw dust in the eyes of his audience."[1003]
As his pen flew over the burning page, Jefferson"s anger grew.
Marshall"s love of monarchy was at the bottom of his decision: "All the principles of law are to be perverted which would bear on the favorite offenders who endeavor to overrun this odious Republic."
Marshall"s refinements as to proof required to establish probable cause to believe Burr guilty, particularly irritated Jefferson. "As to the overt acts, were not the bundle of letters of information in Mr.
Rodney"s hands, the letters and facts published in the local newspapers, Burr"s flight, & the universal belief or rumor of his guilt, probable ground for presuming the facts ... so as to put him on trial? Is there a candid man in the U S who does not believe some one, if not all, of these overt acts to have taken place?"
How dare Marshall require legal evidence when "letters, newspapers and rumors" condemned Burr! How dare he, as a judge, not heed "the universal belief," especially when that general public opinion had been crystallized by Jefferson himself!
That Marshall was influenced by politics and was of a kidney with the whole breed of National judges up to that time, Jefferson had not the slightest doubt. "If there ever had been an instance in this or the preceding administrations, of federal judges so applying principles of law as to condemn a federal or acquit a republican offender, I should have judged them in the present case with more charity."
But the conduct of the Chief Justice will be the final outrage which will compel a great reform. "The nation will judge both the offender & judges for themselves ... the people ... will see ... & amend the error in our Const.i.tution, which makes any branch independent of the nation.... One of the great co-ordinate branches of the government, setting itself in opposition to the other two, and to the common sense of the nation, proclaims impunity to that cla.s.s of offenders which endeavors to overturn the Const.i.tution, and are themselves protected in it by the Const.i.tution itself; for impeachment is a farce which will not be tried again."
Thus Jefferson extracts some comfort from Marshall"s refusal to obey popular clamor and condemn on "rumor." If Marshall"s "protection of Burr produces this amendment,[1004] it will do more good than his condemnation would have done. Against Burr, personally," audaciously adds Jefferson, "I never had one hostile sentiment."[1005]
Such was the state of the President"s mind when he learned of Marshall"s ruling on the Government"s motion to commit Burr to jail upon the charges of treason and high misdemeanor. Jefferson felt that he himself was on trial; he knew that he must make good his charges or suffer a decline in the popularity which he prized above all else in life. He proposed that, at the very least, the public should be on his side, and he resolved to exert the utmost efforts of the National Government to bend Marshall to his will.
Thus the President of the United States became the leading counsel in the prosecution of Aaron Burr, as well as the director-general of a propaganda planned to confirm public opinion of Burr"s treason, and to discredit Marshall should his decisions from the bench result in the prisoner"s escape from the gallows.[1006] Jefferson ordered his Attorney-General, Caesar A. Rodney, to direct justices of the peace throughout the country to examine everybody supposed to have any knowledge of Burr, his plans, movements, or conversations. Long lists of questions, designed to elicit replies that would convict Burr, were sent to these officials on printed forms. A vast drag-net was spread over almost the whole of the United States and drawn swiftly and remorselessly to Washington.
The programme for the prosecution became the subject of anxious Cabinet meetings, and the resources of every department of the Executive branch of the Government were employed to overwhelm the accused man. Jefferson directed Madison as Secretary of State "to take the necessary measures,"
including the advance of money for their expenses, to bring to Richmond witnesses "from great distances."
Five thousand dollars, in a single warrant, was given to the Attorney-General for use in supporting the Administration"s case.[1007]
The total amount of the public money expended by Jefferson"s orders to secure Burr"s conviction was $11,721.11, not a dollar of which had been appropriated for that purpose. "All lawful expenses in the prosecution of Burr were audited, and paid in full," under a law which provided for the conduct of criminal cases; the sums spent by direction of the President were in addition to the money dispensed by authority of that law.[1008]
When Bollmann had been brought to Washington, he had read with rage and amazement the newspaper accounts that Burr had led two thousand armed men in a violent and treasonable attack upon the United States.
Accordingly, after Marshall released him from imprisonment, he hastened to Jefferson and tried to correct what he declared to be "false impressions" concerning Burr"s treason. Bollmann also wished to convince the President that war with Spain was desirable, and to get his support of Burr"s expedition. Jefferson, having taken the precaution to have the Secretary of State present at the interview, listened with apparent sympathy. The following day he requested Bollmann to write out and deliver to him his verbal statements, "Thomas Jefferson giving him _his word of honour_ that they should never be used against himself [Bollmann] and _that the paper shall never go out of his_ [Jefferson"s]
_hand_."[1009]
The confiding Bollmann did as the President requested, his whole paper going "to disprove treason, and to show the expediency of war." Because of unfamiliarity with the English language "one or two expressions" may have been "improperly used."[1010] Bollmann"s statement Jefferson now transmitted to the District Attorney at Richmond, in order, said the President, "that you may know how to examine him and draw everything from him."
Jefferson ordered Hay to show the paper only to his a.s.sociate counsel; but, if Bollmann "should prevaricate," the President adds, "ask him whether he did not say so and so to Mr. Madison and myself." The President a.s.sures Hay that "in order to let him [Bollmann] see that his prevarication will be marked, Mr. Madison will forward [Hay] a pardon for him, which we mean should be delivered previously." Jefferson fears that Bollmann may not appear as a witness and directs Hay to "take effectual measures to have him immediately taken into custody."
Nor was this all. Three months earlier, Wilkinson had suggested to Jefferson the base expedient of offering pardons to Burr"s a.s.sociates, in order to induce them to betray him and thus make certain his conviction.[1011] Apparently this crafty and sinister advice now recurred to Jefferson"s mind--at least he followed it. He enclosed a sheaf of pardons and directed Hay to fill them out "at [his] discretion, if [he] should find a defect of evidence, & believe that this would supply it, by avoiding to give them to the gross offenders, unless it be visible that the princ.i.p.al will otherwise escape."[1012]