The immediate effect of Marshall"s ruling was the one Jefferson most dreaded. For the first time, most Republicans approved of the opinion of John Marshall. In the fanatical politics of the time there was enough of honest adherence to the American ideal, that all men are equal in the eyes of the law, to justify the calling of a President, even Thomas Jefferson, before a court of justice.
Such a militant Republican and devotee of Jefferson as Thomas Ritchie, editor of the Richmond _Enquirer_, the party organ in Virginia, did not criticize Marshall, nor did a single adverse comment on Marshall appear in that paper during the remainder of the trial. Not till the final verdict was rendered did Ritchie condemn him.[1120]
Before he learned of Marshall"s ruling, Jefferson had once more written the District Attorney giving him well-stated arguments against the issuance of the dreaded subpoena.[1121] When he did receive the doleful tidings, Jefferson"s anger blazed--but this time chiefly at Luther Martin, who was, he wrote, an "unprincipled & impudent federal bull-dog." But there was a way open to dispose of him: Martin had known all about Burr"s criminal enterprise. Jefferson had received a letter from Baltimore stating that this had been believed generally in that city "for more than a twelve-month." Let Hay subpoena as a witness the writer of this letter--one Greybell.
Something must be done to "put down" the troublesome "bull-dog": "Shall L M be summoned as a witness against Burr?" Or "shall we move to commit L M as _particeps criminis_ with Burr? Greybell will fix upon him misprision of treason at least ... and add another proof that the most clamorous defenders of Burr are all his accomplices."
As for Bollmann! "If [he] finally rejects his pardon, & the Judge decides it to have no effect ... move to commit him immediately for treason or misdemeanor."[1122] But Bollmann, in open court, had refused Jefferson"s pardon six days before the President"s vindictively emotional letter was written.
After Marshall delivered his opinion on the question of the subpoena to Jefferson, Burr insisted, in an argument as convincing as it was brief, that the Chief Justice should now deliver the supplementary charge to the grand jury as to what evidence it could legally consider.
Marshall announced that he would do so on the following Monday.[1123]
Several witnesses for the Government were sworn, among them Commodore Thomas Truxtun, Commodore Stephen Decatur, and "General" William Eaton.
When Dr. Erich Bollmann was called to the book, Hay stopped the administration of the oath. Bollmann had told the Government all about Burr"s "plans, designs and views," said the District Attorney; "as these communications might criminate doctor Bollman before the grand jury, the president has communicated to me this pardon"--and Hay held out the shameful doc.u.ment. He had already offered it to Bollmann, he informed Marshall, but that incomprehensible person would neither accept nor reject it. His evidence was "extremely material"; the pardon would "completely exonerate him from all the penalties of the law." And so, exclaimed Hay, "in the presence of this court, I offer this pardon to him, and if he refuses, I shall deposit it with the clerk for his use."
Then turning to Bollmann, Hay dramatically asked:
"Will you accept this pardon?"
"No, I will not, sir," firmly answered Bollmann.
Then, said Hay, the witness must be sent to the grand jury "with an intimation, that he has been pardoned."
"It has always been doctor Bollman"s intention to refuse this pardon,"
broke in Luther Martin. He had not done so before only "because he wished to have this opportunity of publicly rejecting it."
Witness after witness was sworn and sent to the grand jury, Hay and Martin quarreling over the effect of Jefferson"s pardon of Bollmann.
Marshall said that it would be better "to settle ... the validity of the pardon before he was sent to the grand jury." Again Hay offered Bollmann the offensive guarantee of immunity; again it was refused; again Martin protested.
"Are you then willing to hear doctor Bollman indicted?" asked Hay, white with anger. "Take care," he theatrically cried to Martin, "in what an awful condition you are placing this gentleman."
Bollmann could not be frightened, retorted Martin: "He is a man of too much honour to trust his reputation to the course which you prescribe for him."
Marshall "would perceive," volunteered the nonplussed and exasperated Hay, "that doctor Bollman now possessed so much zeal, as even to encounter the risk of an indictment for treason."
The Chief Justice announced that he could not, "at present, declare, whether he be really pardoned or not." He must, he said, "take time to deliberate."
Hay persisted: "Categorically then I ask you, Mr. Bollman, do you accept your pardon?"
"I have already answered that question several times. I say no,"
responded Bollmann. "I repeat, that I would have refused it before, but that I wished this opportunity of publicly declaring it."[1124]
Bollmann was represented by an attorney of his own, a Mr. Williams, who now cited an immense array of authorities on the various questions involved. Counsel on both sides entered into the discussion. One "reason why doctor Bollman has refused this pardon" was, said Martin, "that it would be considered as an admission of guilt." But "doctor Bollman does not admit that he has been guilty. He does not consider a pardon as necessary for an innocent man. Doctor Bollman, sir, knows what he has to fear from the persecution of an angry government; but he will brave it all."
Yes! cried Martin, with immense effect on the excited spectators, "the man, who did so much to rescue the marquis la Fayette from his imprisonment, and who has been known at so many courts, bears too great a regard for his reputation, to wish to have it sounded throughout Europe, that he was compelled to abandon his honour through a fear of unjust persecution." Finally the true-hearted and defiant Bollmann was sent to the grand jury without having accepted the pardon, and without the legal effect of its offer having been decided.[1125]
When the Richmond _Enquirer_, containing Marshall"s opinion on the issuance of the subpoena _duces tec.u.m_, reached Washington, the President wrote to Hay an answer of great ability, in which Jefferson the lawyer shines brilliantly forth: "As is usual where an opinion is to be supported, right or wrong, he [Marshall] dwells much on smaller objections, and pa.s.ses over those which are solid.... He admits no exception" to the rule "that all persons owe obedience to subpoenas ... unless it can be produced in his law books."
"But," argues Jefferson, "if the Const.i.tution enjoins on a particular officer to be always engaged in a particular set of duties imposed on him, does not this supersede the general law, subjecting him to minor duties inconsistent with these? The Const.i.tution enjoins his [the President"s] constant agency in the concerns of 6. millions of people.
Is the law paramount to this, which calls on him on behalf of a single one?"
Let Marshall smoke his own tobacco: suppose the Sheriff of Henrico County should summon the Chief Justice to help "quell a riot"? Under the "general law" he is "a part of the _posse_ of the State sheriff"; yet, "would the Judge abandon major duties to perform lesser ones?" Or, imagine that a court in the most distant territory of the United States "commands, by subpoenas, the attendance of all the judges of the Supreme Court. Would they abandon their posts as judges, and the interests of millions committed to them, to serve the purposes of a single individual?"
The Judiciary was incessantly proclaiming its "independence," and a.s.serting that "the leading principle of our Const.i.tution is the independence of the Legislature, executive and judiciary of each other."
But where would be such independence, if the President "were subject to the _commands_ of the latter, & to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south & east to west, and withdraw him entirely from his const.i.tutional duties?"
Jefferson vigorously resented Marshall"s personal reference to him. "If he alludes to our annual retirement from the seat of government, during the sickly season," Hay ought to tell Marshall that Jefferson carried on his Executive duties at Monticello.[1126]
Crowded with sensations as the proceedings had been from the first, they now reached a stage of thrilling movement and high color. The long-awaited and much-discussed Wilkinson had at last arrived "with ten witnesses, eight of them Burr"s select men," as Hay gleefully reported to Jefferson.[1127] Fully attired in the showy uniform of the period, to the last item of martial decoration, the fat, pompous Commanding General of the American armies strode through the crowded streets of Richmond and made his way among the awed and gaping throng to his seat by the side of the Government"s attorneys.
Washington Irving reports that "Wilkinson strutted into the Court, and ... stood for a moment swelling like a turkey c.o.c.k." Burr ignored him until Marshall "directed the clerk to swear General Wilkinson; at the mention of the name Burr turned his head, looked him full in the face with one of his piercing regards, swept his eye over his whole person from head to foot, as if to scan its dimensions, and then coolly ... went on conversing with his counsel as tranquilly as ever."[1128]
Wilkinson delighted Jefferson with a different description: "I saluted the Bench & in spite of myself my Eyes darted a flash of indignation at the little Traitor, on whom they continued fixed until I was called to the Book--here Sir I found my expectations verified--This Lyon hearted Eagle Eyed Hero, sinking under the weight of conscious guilt, with haggard Eye, made an Effort to meet the indignant salutation of outraged Honor, but it was in vain, his audacity failed Him, He averted his face, grew pale & affected pa.s.sion to conceal his perturbation."[1129]
But the countenance of a thin, long-faced, roughly garbed man sitting among the waiting witnesses was not composed when Wilkinson appeared.
For three weeks Andrew Jackson to all whom he met had been expressing his opinion of Wilkinson in the unrestrained language of the fighting frontiersman;[1130] and he now fiercely gazed upon the creature whom he regarded as a triple traitor, his own face furious with scorn and loathing.
Within the bar also sat that brave and n.o.ble man whose career of unbroken victories had made the most brilliant and honorable page thus far in the record of the American Navy--Commodore Thomas Truxtun. He was dressed in civilian attire.[1131] By his side, clad as a man of business, sat a brother naval hero of the old days, Commodore Stephen Decatur.[1132] A third of the group was Benjamin Stoddert, the Secretary of the Navy under President Adams.[1133]
In striking contrast with the dignified appearance and modest deportment of these gray-haired friends was the gaudily appareled, aggressive mannered Eaton, his restlessness and his complexion advertising those excesses which were already disgusting even the hard-drinking men then gathered in Richmond. Dozens of inconspicuous witnesses found humbler places in the audience, among them Sergeant Jacob Dunbaugh, bearing himself with mingled bravado, insolence, and humility, the stripes on the sleeve of his uniform designating the position to which Wilkinson had restored him.
Dunbaugh had gone before the grand jury on Sat.u.r.day, as had Bollmann; and now, one by one, Truxtun, Decatur, Eaton, and others were sent to testify before that body.
Eaton told the grand jury the same tale related in his now famous affidavit.[1134]
Commodore Truxtun testified to facts as different from the statements made by "the hero of Derne"[1135] as though Burr had been two utterly contrasted persons. During the same period that Burr had seen Eaton, he had also conversed with him, said Truxtun. Burr mentioned a great Western land speculation, the digging of a ca.n.a.l, and the building of a bridge. Later on Burr had told him that "in the event of a war with Spain, which he thought inevitable, ... he contemplated an expedition to Mexico," and had asked Truxtun "if the Havanna could be easily taken ...
and what would be the best mode of attacking Carthagena and La Vera Cruz by land and sea." The Commodore had given Burr his opinion "very freely," part of it being that "it would require a naval force." Burr had answered that "_that_ might be obtained," and had frankly asked Truxtun if he "would take the command of a naval expedition."
"I asked him," testified Truxtun, "if the executive of the United States were privy to, or concerned in the project? He answered _emphatically_ that he was not: ... I told Mr. Burr that I would have nothing to do with it.... He observed to me, that in the event of a war [with Spain], he intended to establish an independent government in Mexico; that Wilkinson, the army, and many officers of the navy would join....
Wilkinson had projected the expedition, and he had matured it; that many greater men than Wilkinson would join, and that thousands to the westward would join."
In some of the conversations "Burr mentioned to me that the government was weak," testified Truxtun, "and he wished me to get the navy of the United States out of my head;[1136] ... and not to think more of those men at Washington; that he wished to _see_ or _make_ me, (I do not recollect which of those two terms he used) an Admiral."
Burr wished Truxtun to write to Wilkinson, to whom he was about to dispatch couriers, but Truxtun declined, as he "had no subject to write about." Again Burr urged Truxtun to join the enterprise--"several officers would be pleased at being put under my command.... The expedition could not fail--the Mexicans were ripe for revolt." Burr "was sanguine there would be war," but "if he was disappointed as to the event of war, he was about to complete a contract for a large quant.i.ty of land on the Was.h.i.ta; that he intended to invite his friends to settle it; that in one year he would have a thousand families of respectable and fashionable people, and some of them of considerable property; that it was a fine country, and that they would have a charming society, and in two years he would have doubled the number of settlers; and being on the frontier, he would be ready to move whenever a war took place....
"All his conversations respecting military and naval subjects, and the Mexican expedition, were in the event of a war with Spain." Truxtun testified that he and Burr were "very intimate"; that Burr talked to him with "no reserve"; and that he "never heard [Burr] speak of a division of the union."
Burr had shown Truxtun the plan of a "kind of boat that plies between Paulus-Hook and New-York," and had asked whether such craft would do for the Mississippi River and its tributaries, especially on voyages upstream. Truxtun had said they would. Burr had asked him to give the plans to "a naval constructor to make several copies," and Truxtun had done so. Burr explained that "he intended those boats for the conveyance of agricultural products to market at New-Orleans, and in the event of war [with Spain], for transports."
The Commodore testified that Burr made no proposition to invade Mexico "whether there was war [with Spain] or not." He was so sure that Burr meant to settle the Was.h.i.ta lands that he was "astonished" at the newspaper accounts of Burr"s treasonable designs after he had gone to the Western country for the second time.
Truxtun had freely complained of what amounted to his discharge from the Navy, being "pretty full" himself of "resentment against the Government," and Burr "joined [him] in opinion" on the Administration.[1137]
Jacob Dunbaugh told a weird tale. At Fort Ma.s.sac he had been under Captain Bissel and in touch with Burr. His superior officer had granted him a furlough to accompany Burr for twenty days. Before leaving, Captain Bissel had "sent for [Dunbaugh] to his quarters," told him to keep "any secrets" Burr had confided to him, and "advised" him "never to forsake Col. Burr"; and "at the same time he made [Dunbaugh] a present of a silver breast plate."
After Dunbaugh had joined the expedition, Burr had tried to persuade him to get "ten or twelve of the best men" among his nineteen fellow soldiers then at Chickasaw Bluffs to desert and join the expedition; but the virtuous sergeant had refused. Then Burr had asked him to "steal from the garrison arms such as muskets, fusees and rifles," but Dunbaugh had also declined this reasonable request. As soon as Burr learned of Wilkinson"s action, he told Dunbaugh to come ash.o.r.e with him armed "with a rifle," and to "conceal a bayonet under [his] clothes.... He told me he was going to tell me something I must never relate again, ... that General Wilkinson had betrayed him ... that he had played the devil with him, and had proved the greatest traitor on the earth."
Just before the militia broke up the expedition, Burr and Wylie, his secretary, got "an axe, auger and saw," and "went into Colonel Burr"s private room and began to chop," Burr first having "ordered no person to go out." Dunbaugh did go out, however, and "got on the top of the boat."
When the chopping ceased, he saw that "a Mr. Pryor and a Mr. Tooly got out of the window," and "saw two bundles of arms tied up with cords, and sunk by cords going through the holes at the gunwales of Colonel Burr"s boat." The vigilant Dunbaugh also saw "about forty or forty-three stands [of arms], besides pistols, swords, blunderbusses, fusees, and tomahawks"; and there were bayonets too.[1138]