and yet, even now, the Government was not ready. Nevertheless, the court was again asked to imprison him for an alleged offense for which the prosecution admitted it had not so much as the slight evidence required to secure his indictment by the grand jury.
Were the Government and he "on equal terms?" Far from it. "The United States [could] have compulsory process" to obtain affidavits against him but he had "no such advantage." So the prosecution demanded his imprisonment on _ex parte_ evidence which would be contradicted by his own evidence if he could adduce it. Worse still! The Government affidavits against him "are put into the newspapers, and they fall into the hands of the grand jury." Meanwhile, he was helpless. And now the opinion of the court was also to be added to the forces working to undo him.
Wirt and Hay had charged his counsel "with declamation against the government." Certainly n.o.body could attribute "declamation" to him; but, said Burr, his restrained voice tense with suppressed emotion, "no government is so high as to be beyond the reach of criticism"--that was a fundamental principle of liberty. This was especially true when the Government prosecuted a citizen, because of "the vast disproportion of means which exists between it and the accused." And "if ever there was a case which justified this vigilance, it is certainly the present one"; let Marshall consider the "uncommon activity" of the Administration.
Burr would, he said, "merely state a few" of the instances of "harra.s.sing, ... contrary to law" to which he had been subjected. His "friends had been every where seized by the military authority," dragged before "particular tribunals," and forced to give testimony; his papers taken; orders to kill him issued; post-offices broken open and robbed--"nothing seemed too extravagant to be forgiven by the amiable morality of this government." Yet it was for milder conduct that Americans rightly condemned "European despotisms."
The President was a great lawyer; surely "he ought to know what const.i.tutes war. Six months ago he proclaimed that there was a civil war. And yet, for six months they have been hunting for it and cannot find one spot where it existed. There was, to be sure, a most terrible war in the newspapers; but no where else." He had been haled before the court in Kentucky--and no proof; in Mississippi--and no proof. The Spaniards actually invaded American territory--even then there was no war.
Thus early the record itself discloses the dramatic, and, for Marshall, perilous, conditions under which this peculiar trial was to be conducted. The record makes clear, also, the plan of defense which Burr and his counsel were forced to adopt. They must dull the edge of public opinion sharpened to a biting keenness by Jefferson. They must appeal to the people"s hatred of oppression, fear of military rule, love of justice. To do this they must attack, attack, always attack.
They must also utilize every technical weapon of the law. At another time and place they could have waived, to Burr"s advantage, all legal rights, insisted upon his indictment, and gone to trial, relying only upon the evidence. But not in the Virginia of 1807, with the mob spirit striving to overawe jury and court, and ready to break out in violent action--not at the moment when the reign of Thomas Jefferson had reached the highest degree of popular idolatry.
Just as Hay, Wirt, and MacRae generally spoke to the spectators far more than to the Bench, so did Wickham, Randolph, Botts, and Martin.[1063]
Both sides so addressed the audience that their hearers were able to repeat to the thousands who could not get into the hall what had been said by the advocates. From the very first the celebrated trial of Aaron Burr was a contest for the momentary favor of public opinion; and, in addition, on the part of Burr, an invoking of the law to shield him from that popular wrath which the best efforts of his defenders could not wholly appease.
Marshall faced a problem of uncommon difficulty. It was no small matter to come between the populace and its prey--no light adventure to brave the vengeance of Thomas Jefferson. Not only his public repute[1064]--perhaps even his personal safety[1065] and his official life[1066]--but also the now increasing influence and prestige of the National Judiciary were in peril. However, he must do justice no matter what befell--he must, at all hazards, p.r.o.nounce the law truly and enforce it bravely, but with elastic method. He must be not only a just, but also an understanding, judge.
When court opened next morning, Marshall was ready with a written opinion. Concisely he stated the questions to be decided: Had the court the power to commit Burr, and, if so, ought the circ.u.mstances to restrain the exercise of it? Neither side had made the first point, and Marshall mentioned it only "to show that it [had] been considered."
Briefly he demonstrated that the court was clothed with authority to grant Hay"s motion. Should that power, then, be exerted? Marshall thought that it should. The Government had the right to ask Burr"s incarceration at any time, and it was the duty of the court to hear such a motion.
Thus far spoke Marshall the judge. In the closing sentences the voice of the politician was heard: "The court perceives and regrets that the result of this motion may be publications unfavourable to the justice, and to the right decision of the case"; but this must be remedied "by other means than by refusing to hear the motion." Every honest and intelligent man extremely deplored "any attempt ... to prejudice the public judgment, and to try any person," not by the law and the evidence, but "by public feelings which may be and often are artificially excited against the innocent, as well as the guilty, ... a practice not less dangerous than it is criminal." Nevertheless he could not "suppress motions, which either party may have a legal right to make." So, if Hay persisted, he might "open his testimony."[1067]
While Marshall, in Richmond, was reading this opinion, Jefferson, in Washington, was writing directions to Hay. He was furious at "the criminal and voluntary retirement" of Giles and Nicholas from the grand jury "with the permission of the court." The opening of the prosecution had certainly begun "under very inauspicious circ.u.mstances." One thing was clear: "It becomes our duty to provide that full testimony shall be laid before the Legislature, and through them the public."
If the grand jury should indict Burr, then Hay must furnish Jefferson with all the evidence, "taken as verbatim as possible." Should Burr not be indicted, and no trial held and no witnesses questioned in court, then Hay must "have every man privately examined by way of affidavit,"
and send Jefferson "the whole testimony" in that form. "This should be done before they receive their compensation, that they may not evade examination. Go into any expense necessary for this purpose,[1068] & meet it from the funds provided to the Attorney general for the other expenses."[1069]
Marshall"s decision perplexed Hay. It interfered with his campaign of publicity. If only Marshall had denied his motion, how effectively could that incident have been used on public sentiment! But now the Republican press could not exclaim against Marshall"s "leniency" to "traitors" as it had done. The people were deprived of fresh fuel for their patriotic indignation. Jefferson would be at a loss for a new pretext to arouse them against the encroachments of the courts upon their "liberties."
Hay strove to retrieve the Government from this disheartening situation.
He was "struck," he said, with Marshall"s reference to "publications."
To avoid such newspaper notoriety, he would try to arrange with Burr"s counsel for the prisoner"s appearance under additional bail, thus avoiding insistence upon the Government"s request for the imprisonment of the accused. Would Marshall adjourn court that this amicable arrangement might be brought about? Marshall would and did.
But next day found Hay unrelieved; Burr"s counsel had refused, in writing, to furnish a single dollar of additional bail. To his intense regret, Hay lamented that he was thus forced to examine his witnesses.
Driven to this unpleasant duty, he would follow the "chronological order--first the depositions of the witnesses who were absent, and afterwards those who were present."[1070]
The alert Wickham demanded "strict legal order." The Government must establish two points: the perpetration of an overt act, and "that colonel Burr was concerned in it."[1071] Hay floundered--there was one great plot, he said, the two parts of it "intimately blended"; the projected attack on Spain and the plot to divide the Union were inseparable--he must have a free hand if he were to prove this wedded iniquity. Was Burr afraid to trust the court?
Far from it, cried Wickham, "but we do fear to prejudicate the mind of the grand jury.... All propriety and decorum have been set at naught; every idle tale which is set afloat has been eagerly caught at. The people here are interested by them; and they circulate all over the country."[1072] Marshall interrupted: "No evidence certainly has any bearing ... unless the overt act be proved." Hay might, however, "pursue his own course."
A long altercation followed. Botts made an extended speech, in the course of which he discredited the Government"s witnesses before they were introduced. They were from all over the country, he said, their "names, faces and characters, are alike unknown to colonel Burr." To what were they to testify? Burr did not know--could not possibly ascertain. "His character has long been upon public torture; and wherever that happens ... the impulses to false testimony are numerous.
Sometimes men emerge from the sinks of vice and obscurity into patronage and distinction by circulating interesting tales, as all those of the marvelous kind are. Others, from expectation of office and reward, volunteer; while timidity, in a third cla.s.s, seeks to guard against the apprehended danger, by magnifying trifling stories of alarm.... When they are afterwards called to give testimony, perjury will not appal them, if it be necessary to save their reputations." Therefore, reasoned Botts--and most justly--strict rules of evidence were necessary.[1073]
Hay insisted that Wilkinson"s affidavit demonstrated Burr"s intentions.
That "goes for nothing," said Marshall, "if there was no other evidence to prove the overt act." Therefore, "no part of it [was] admissible at this time."[1074] Thrice Marshall patiently reminded Government counsel that they charged an overt act of treason and must prove it.[1075]
Hay called Peter Taylor, Blennerha.s.sett"s former gardener, and Jacob Allbright, once a laborer on the eccentric Irishman"s now famous island.
Both were illiterate and in utter terror of the Government. Allbright was a Dutchman who spoke English poorly; Taylor was an Englishman; and they told stories equally fantastic. Taylor related that Mrs.
Blennerha.s.sett had sent him to Kentucky with a letter to Burr warning him not to return to the island; that Burr was surprised at the people"s hostility; that Blennerha.s.sett, who was also in Kentucky, confided they were going to take Mexico and make Burr king, and Theodosia queen when her father died; also that Burr, Blennerha.s.sett, and their friends had bought "eight hundred thousand acres of land" and "wanted young men to settle it," and that any of these who should prove refractory, he [Blennerha.s.sett] said, "by G.o.d, ... I will stab"; that Blennerha.s.sett had also said it would be a fine thing to divide the Union, but Burr and himself could not do it alone.
Taylor further testified that Blennerha.s.sett once sent him with a letter to a Dr. Bennett, who lived in Ohio, proposing to buy arms in his charge belonging to the United States--if Bennett could not sell, he was to tell where they were, and Blennerha.s.sett "would steal them away in the night"; that his employer charged him "to get [the letter] back and burn it, for it contained high treason"; and that the faithful Taylor had done this in Bennett"s presence.
Taylor narrated the scene on the island when Blennerha.s.sett and thirty men in four boats fled in the night: some of the men had guns and there was some powder and lead.[1076]
Jacob Allbright told a tale still more marvelous. Soon after his employment, Mrs. Blennerha.s.sett had come to this dull and ignorant laborer, while he was working on a kiln for drying corn, and confided to him that Burr and her husband "were going to lay in provisions for an army for a year"; that Blennerha.s.sett himself had asked Allbright to join the expedition which was going "to settle a new country." Two men whom the Dutch laborer met in the woods hunting had revealed to him that they were "Burr"s men," and had disclosed that "they were going to take a silver mine from the Spanish"; that when the party was ready to leave the island, General Tupper of Ohio had "laid his hands upon Blennerha.s.sett and said, "your body is in my hands in the name of the commonwealth,"" whereupon "seven or eight muskets [were] levelled" at the General; that Tupper then observed he hoped they would not shoot, and one of the desperadoes replied, "I"d as lieve as not"; and that Tupper then "changed his speech," wished them "to escape safe," and bade them G.o.dspeed.
Allbright and Taylor were two of the hundreds to whom the Government"s printed questions had been previously put by agents of the Administration. In his answers to these, Allbright had said that the muskets were pointed at Tupper as a joke.[1077] Both Taylor and he swore that Burr was not on the island when Blennerha.s.sett"s men a.s.sembled there and stealthily departed in hasty flight.
To the reading of the deposition of Jacob Dunbaugh, Burr"s counsel strenuously objected. It was not shown that Dunbaugh himself could not be produced; the certification of the justice of the peace, before whom the deposition was taken, was defective. For the remainder of the day the opposing lawyers wrangled over these points. Marshall adjourned court and "took time to consider the subject till the next day"; when, in a long and painfully technical opinion, he ruled that Dunbaugh"s affidavit could not be admitted because it was not properly authenticated.[1078]
May 28, when the court again convened, was made notable by an event other than the reading of the unnecessarily long opinion which Marshall had written during the night: the crimson-faced, bellicose superman of the law, Luther Martin, appeared as one of Burr"s counsel.[1079] The great lawyer had formed an ardent admiration and warm friendship for Burr during the trial of the Chase impeachment,[1080] and this had been intensified when he met Theodosia, with whom he became infatuated.[1081]
He had voluntarily come to his friend"s a.s.sistance, and soon threw himself into the defense of Burr with all the pa.s.sion of his tempestuous nature and all the power and learning of his phenomenal intellect.
[Ill.u.s.tration: LUTHER MARTIN]
After vexatious contendings by counsel as to whether Burr should give additional bail,[1082] Marshall declared that "as very improper effects on the public mind [might] be produced," he wished that no opinion would be required of him previous to the action of the grand jury; and that the "appearance of colonel Burr could be secured without ...
proceeding in this inquiry." Burr denied the right of the court to hold him on bail, but said that if Marshall was "embarra.s.sed," he voluntarily would furnish additional bail, "provided it should be understood that no opinion on the question even of probable cause was p.r.o.nounced by the court."[1083] Marshall agreed; and Burr with four sureties, among whom was Luther Martin, gave bond for ten thousand dollars more.[1084]
Day after day, court, grand jury, counsel, and spectators awaited the coming of Wilkinson. The Government refused to present any testimony to the grand jury until he arrived, although scores of witnesses were present. Andrew Jackson was very much in town, as we have seen. So was Commodore Truxtun. And "General" William Eaton was also on hand, spending his time, when court was not in session, in the bar-rooms of Richmond.
Wearing a "tremendous hat," clad in gay colored coat and trousers, with a flaming Turkish belt around his waist, Eaton was already beginning to weaken the local hatred of Burr by his loud bl.u.s.tering against the quiet, courteous, dignified prisoner.[1085] Also, at gambling-tables, and by bets that Burr would be convicted, the African hero was making free with the ten thousand dollars paid him by the Government soon after he made the bloodcurdling affidavit[1086] with which Jefferson had so startled Congress and the country.
While proceedings lagged, Marshall enjoyed the dinners and parties that, more than ever, were given by Richmond society. On one of these occasions that eminent and ardent Republican jurist, St. George Tucker, was present, and between him and Marshall an animated discussion grew out of the charge that Burr had plotted to cause the secession of the Western States; it was a forecast of the tremendous debate that was to end only at Appomattox. "Judge Tucker, though a violent Democrat,"
records Blennerha.s.sett, "seriously contended ... with Judge Marshall ...
that any State in the Union is at any time competent to recede from the same, though Marshall strongly opposed this doctrine."[1087]
Hay wrote Jefferson of the slow progress of the case, and the President "hastened" to instruct his district attorney: If the grand jury should refuse to indict Burr, Hay must not deliver the pardon to Bollmann; otherwise, "his evidence is deemed entirely essential, & ... his pardon is to be produced before he goes to the book." Jefferson had become more severe as he thought of Bollmann, and now actually directed Hay to show, in open court, to this new object of Presidential displeasure, the "sacredly confidential" statement given Jefferson under pledge of the latter"s "word of honor" that it should never leave his hand. Hay was directed to ask Bollmann whether "it was not his handwriting."[1088]
With the same ink on his pen the President wrote his son-in-law that he had heard only of the first day of the trial, but was convinced that Marshall meant to do all he could for Burr. Marshall"s partiality showed, insisted Jefferson, "the original error of establishing a judiciary independent of the nation, and which, from the citadel of the law can turn it"s guns on those they were meant to defend, & controul & fashion their proceedings to it"s own will."[1089]
Hay quickly answered Jefferson: The trial had "indeed commenced under inauspicious circ.u.mstances," and doubtless these would continue to be unfavorable. n.o.body could predict the outcome. Hay was so exhausted and in such a state of mind that he could not describe "the very extraordinary occurrences in this very extraordinary examination."
Burr"s "partizans" were gloating over the failure of Wilkinson to arrive. Bollmann would neither accept nor reject the pardon; he was "as unprincipled as his leader." Marshall"s refusal to admit Dunbaugh"s affidavit was plainly illegal--"his eyes [were] almost closed" to justice.[1090]
Jefferson now showered Hay with orders. The reference in argument to Marshall"s opinion in Marbury _vs._ Madison greatly angered him: "Stop ... citing that case as authority, and have it denied to be law,"
he directed Hay, and gave him the arguments to be used against it. An entire letter is devoted to this one subject: "I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public, & denounced as not law; & I think the present a fortunate one, because it occupies such a place in the public attention."
Hay was openly to declare that the President rejected Marshall"s opinion in that case as having been "given extra-judicially & against law," and that the reverse of it would be Jefferson"s "rule of action." If necessary, Hay might state that the President himself had said this.[1091]
Back and forth went letters from Hay to Jefferson and from Jefferson to Hay,[1092] the one asking for instructions and the other eagerly supplying them. To others, however, the President explained that he could take no part in any judicial proceeding, since to do so would subject him to "just censure."[1093]
In spite of the abundance of Government witnesses available, the prosecution refused to go on until the redoubtable savior of his country had arrived from New Orleans. Twice the grand jury had to be dismissed for several days, in order, merrily wrote Washington Irving, "that they might go home, see their wives, get their clothes washed, and flog their negroes."[1094] A crowd of men ready to testify was held. The swarms of spectators waited with angry impatience. "If the great hero of the South does not arrive, it is a chance if we have any trial this term,"[1095]
commented Irving.
During this period of inaction and suspense, suddenly arose one of the most important and exciting questions of the entire trial. On June 9, while counsel and court were aimlessly discussing Wilkinson"s journey to Richmond, Burr arose and said that he had a "proposition to submit" to the court. The President in his Message to Congress had made mention of the letter and other papers dated October 21, which he had received from Wilkinson. It had now become material that this letter should be produced in court.
Moreover, since the Government had "attempted to infer certain intentions on [his] part, from certain transactions," such as his flight from Mississippi, it had become necessary to prove the conditions that forced him to attempt that escape. Vital among these were orders of the Government to the army and navy "to destroy" Burr"s "person and property." He had seen these orders in print,[1096] and an officer had a.s.sured him that such instructions had actually been issued. It was indispensable that this be established. The Secretary of the Navy had refused to allow him or his counsel to inspect these orders. "Hence,"
maintained Burr, "I feel it necessary ... to call upon [the court] to issue a subpoena to the President of the United States, with a clause, requiring him to produce certain papers; or in other words, to issue the subpoena _duces tec.u.m_." If Hay would agree to produce these doc.u.ments, the motion would not be made.[1097]