[1286] _Ib._ 480. This statement of Botts is of first importance. The whole proceeding on the part of the Government was conspicuously marked by a reliance upon public sentiment to influence court and jury through unceasing efforts to keep burning the fires of popular fear and hatred of Burr, first lighted by Jefferson"s Proclamation and Message. Much repet.i.tion of this fact is essential, since the nature and meaning of the Burr trial rests upon it.
[1287] _Burr Trials_, II, 481-503.
[1288] Van Santvoord: _Sketches of the Lives and Judicial Services of the Chief-Justices of the United States_, 379. Yet popular sentiment was the burden of many of the speeches of Government counsel throughout the trial.
[1289] _Blennerha.s.sett Papers_: Safford, 402.
[1290] _Burr Trials_, II, 504.
[1291] _Ib._ 511.
[1292] Jefferson to Hay, no date; but Paul Leicester Ford fixes it between August 7 and 20, 1807. It is, says Ford, "the mere draft of a letter ... which may never have been sent, but which is of the utmost importance." (_Works_: Ford, X, 406-07.) It would seem that Jefferson wrote either to Marshall or Judge Griffin personally, for the first words of his astounding letter to Hay were: "The _enclosed letter_ is written in a spirit of conciliation," etc., etc. Whether or not the President actually posted the letter to Hay, the draft quoted in the text shows the impression which Marshall"s order made on Jefferson.
(Italics the author"s.)
[1293] _Burr Trials_, II, 513-14.
[1294] _Ib._ 514-33.
[1295] This remark of Marshall would seem to indicate that Hay had tried to patch up "a truce" between the President and the Chief Justice, as Jefferson desired him to do. If so, it soon expired.
[1296] _Burr Trials_, II, 533-37.
[1297] Hay to Jefferson, Sept. 5, 1807, Jefferson MSS. Lib. Cong.
[1298] The printed record does not show this, but Jefferson, in his letter to Hay, September 7, says: "I received, late last night, your favor of the day before, and now re-enclose you the subpoena."
[1299] Jefferson to Hay, Sept. 7, 1807, _Works_: Ford, X, 408.
[1300] For some reason the matter was not again pressed. Perhaps the favorable progress of the case relieved Burr"s anxiety. It is possible that the "truce" so earnestly desired by Jefferson was arranged.
[1301] _Blennerha.s.sett Papers_: Safford, 394.
[1302] "Today, the Chief Justice has delivered an able, full, and luminous opinion as ever did honor to a judge, which has put an end to the present prosecution." (_Blennerha.s.sett Papers_: Safford, 403.)
[1303] _Annals_, 10th Cong. 1st Sess. 416-19.
[1304] This appears from the record itself. (See Wilkinson"s testimony, _ib._ 512-44; also testimony of Major James Bruff, _ib._ 589-90.) Blennerha.s.sett, who usually reported faithfully the general impression, notes in his diary: "The General exhibited the manner of a sergeant under a courtmartial, rather than the demeanor of an accusing officer confronted with his culprit." (_Blennerha.s.sett Papers_: Safford, 422.)
[1305] _Ib._ 418.
[1306] Record, MSS. Archives U.S. Circuit Court, Richmond, Va.
[1307] _Blennerha.s.sett Papers_: Safford, 404.
[1308] _Ib._ 409-10.
[1309] _Ib._ 416.
[1310] _Ib._ 412-13.
[1311] Daveiss: "A View of the President"s Conduct Concerning the Conspiracy of 1806."
[1312] _Blennerha.s.sett Papers_: Safford, 465-66.
[1313] _Ib._ 502.
[1314] The brother of John Thompson, author of "The Letters of Curtius"
which attacked Marshall in 1798. (See vol. II, 395-96, of this work.)
[1315] Thompson"s "view" was published as a series of letters to Marshall immediately after the trial closed. (See _infra_, 533-35.)
[1316] Jefferson to Thompson, September 26, 1807, _Works_: Ford, X, 501-02.
[1317] Plumer, Aug. 15, 1807, "Diary," Plumer MSS. Lib. Cong.
[1318] Hay to Jefferson, Oct. 15, 1807, Jefferson MSS. Lib. Cong.
[1319] This statement is lucid, conspicuously fair, and, in the public mind, would have cleared Burr of any taint of treason, had not Jefferson already crystallized public sentiment into an irrevocable conviction that he was a traitor. (See _Annals_, 10th Cong. 1st Sess. 766-78.)
[1320] _Ib._
[1321] Burr to his daughter, Oct. 23, 1807, Davis, II, 411-12.
[1322] Hay to Jefferson, Oct. 21, 1807, Jefferson MSS. Lib. Cong.
[1323] _Blennerha.s.sett Papers_: Safford, 301. If this were only the personal opinion of Burr"s gifted but untrustworthy a.s.sociate, it would not be weighty. But Blennerha.s.sett"s views while at Richmond, as recorded in his diary, were those of all of Burr"s counsel and of the Richmond Federalists.
[1324] No wonder the Government abandoned the case. Nearly all the depositions procured by Hay under Jefferson"s orders demonstrated that Burr had not the faintest intention of separating the Western States from the Union, or even of attacking Mexico unless war broke out between Spain and the United States. See particularly deposition of Benjamin Stoddert of Maryland, October 9, 1807 (_Quarterly Pub. Hist. and Phil.
Soc. Ohio_, IX, nos. 1 and 2, 7-9); of General Edward Tupper of Ohio, September 7, 1807 (_ib._ 13-27); and of Paul H. M. Prevost of New Jersey, September 28, 1807 (_ib._ 28-30).
[1325] See _infra_, 536.
[1326] Marshall to Peters, Nov. 23, 1807, Peters MSS. Pa. Hist. Soc.
[1327] Hay, for the moment mollified by Marshall"s award of two thousand dollars as his fee, had made no further complaint for several days.
[1328] See _supra_, chap. I, 35-36; also vol. II, 429-30, of this work.
[1329] Jefferson"s Seventh Annual Message, first draft, _Works_: Ford, X, 523-24.
[1330] See notes of Gallatin and Rodney, _Works_: Ford, X, footnotes to 503-10.
[1331] Jefferson"s Seventh Annual Message, second draft, _Works_: Ford, X, 517. Blennerha.s.sett, and probably Burr, would not have grieved had Marshall been impeached. It would be "penance for that timidity of conduct, which was probably as instrumental in keeping him from imbruing his hands in our blood as it was operative in inducing him to continue my vexations [the commitment of the conspirators to be tried in Ohio], to pacify the menaces and clamorous yells of the cerberus of Democracy with a sop which he would moisten, at least, with the tears of my family." (_Blennerha.s.sett Papers_: Safford, 465.)
[1332] See vol. II, 464-71, of this work.
[1333] "Portrait of the Chief Justice," in the Richmond _Enquirer_, Nov.
6, 1807. This article fills more than two closely printed columns. It discusses, and not without ability, the supposed errors in Marshall"s opinions.