Volume III Part 49 (1/2)

[Ill.u.s.tration: _The Old State House. Richmond, Va._ _Where Marshall presided at the Burr trial._]

In the concourse thus drawn to Richmond, few there were who were not certain that Burr had planned and attempted to a.s.sa.s.sinate Jefferson, overthrow the Government, shatter the Nation, and destroy American ”liberty”; and so vocal and belligerent was this patriotic majority that men who at first held opinions contrary to the prevailing sentiment, or who entertained doubts of Burr's guilt, kept discreetly silent. So aggressively hostile was public feeling that, weeks later, when the bearing and manners of Burr, and the devotion, skill, and boldness of his counsel had softened popular asperity, Marshall declared that, even then, ”it would be difficult or dangerous for a jury to venture to acquit Burr, however innocent they might think him.”[1021] The prosecution of Aaron Burr occurred when a tempest of popular prejudice and intolerance was blowing its hardest.

The provision concerning treason had been written into the American Const.i.tution ”to protect the people against that horrible and dangerous doctrine of constructive treason which had stained the English records with blood and filled the English valleys with innocent graves.”[1022]

The punishment for treason in all countries had been brutal and savage in the extreme. In England, that crime had not perhaps been treated with such severity as elsewhere. Yet, even in England, so harsh had been the rulings of the courts against those charged with treason, so inhuman the execution of judgments upon persons found guilty under these rulings, so slight the pretexts that sent innocent men and women to their death,[1023] that the framers of our fundamental law had been careful to define treason with utmost clearness, and to declare that proof of it could only be made by two witnesses to the same overt act or by confession of the accused in open court.[1024]

That was one subject upon which the quarreling members of the Const.i.tutional Convention of 1787 had been in accord, and their solution of the question had been the one and the only provision of which no complaint had been made during the struggle over ratification.

Every member of that Convention--every officer and soldier of the Revolution from Was.h.i.+ngton down to private, every man or woman who had given succor or supplies to a member of the patriot army, everybody who had advocated American independence--all such persons could have been prosecuted and might have been convicted as ”traitors” under the British law of constructive treason.[1025] ”None,” said Justice James Iredell in 1792, ”can so highly ... prize these provisions [of the Const.i.tution] as those who are best acquainted with the abuses which have been practised in other countries in prosecutions for this offence.... We ... hope that the page of American history will never be stained with prosecutions for treason, begun without cause, conducted without decency, and ending in iniquitous convictions, without the slightest feelings of remorse.”[1026]

Yet, six years later, Iredell avowed his belief in the doctrine of constructive treason.[1027] And in less than seventeen years from the time our National Government was established, the reasons for writing into the Const.i.tution the rigid provision concerning treason were forgotten by the now thoroughly partisanized mult.i.tude, if, indeed, the people ever knew those reasons.

Moreover, every National judge who had pa.s.sed upon the subject, with the exception of John Marshall, had a.s.serted the British doctrine of constructive treason. Most of the small number who realized the cause and real meaning of the American Const.i.tutional provision as to treason were overawed by the public frenzy; and brave indeed was he who defied the popular pa.s.sion of the hour or questioned the opinion of Thomas Jefferson, then at the summit of his popularity.[1028]

One such dauntless man, however, there was among the surging throng that filled the Capitol Square at Richmond after the adjournment of court on May 22, and he was a vigorous Republican, too. ”A tall, lank, uncouth-looking personage, with long locks of hair hanging over his face, and a queue down his back tied in an eel-skin, his dress singular, his manners and deportment that of a rough backwoodsman,”[1029] mounted the steps of a corner grocery and harangued the glowering a.s.semblage that gathered in front of him.[1030] His daring, and an unmistakable air that advertised danger to any who disputed him, prevented that violent interruption certain to have been visited upon one less bold and formidable. He praised Burr as a brave man and a patriot who would have led Americans against the hated Spanish; he denounced Jefferson as a persecutor who sought the ruin of one he hated. Thus Andrew Jackson of Tennessee braved and cowed the hostile mob that was demanding and impatiently awaiting the condemnation and execution of the one who, for the moment, had been made the object of the country's execration.[1031]

Jackson had recovered from his brief distrust of Burr, and the reaction had carried his tempestuous nature into extreme champions.h.i.+p of his friend. ”I am more convinced than ever,” he wrote during the trial, ”that treason was never intended by Burr.”[1032] Throughout the extended and acrimonious contest, Jackson's conviction grew stronger that Burr was a wronged man, hounded by betrayers, and the victim of a political conspiracy to take his life and destroy his reputation. And Jackson firmly believed that the leader of this cabal was Thomas Jefferson. ”I am sorry to say,” he wrote, ”that this thing [the Burr trial] has ...

a.s.sumed the shape of a political persecution.”[1033]

The Administration retaliated by branding Andrew Jackson a ”malcontent”; and Madison, because of Jackson's att.i.tude, prevented as long as possible the military advancement of the refractory Tennesseean during the War of 1812.[1034] On the other hand, Burr never ceased to be grateful to his frontiersman adherent, and years later was one of those who set in motion the forces which made Andrew Jackson President of the United States.[1035]

Nor was Jackson the only Republican who considered Jefferson as the contriving and energizing hand of the scheme to convict Burr. Almost riotous were the efforts to get into the hall where the trial was held, though it was situated on a steep hill and ”the ascent to the building was painfully laborious.”[1036] Old and eminent lawyers of Richmond could not reach the bar of the court, so dense was the throng.

One youthful attorney, tall and powerful, ”the most magnificent youth in Virginia,” determined to witness the proceedings, shouldered his way within and ”stood on the ma.s.sive lock of the great door” of the chamber.[1037] Thus Winfield Scott got his first view of that striking scene, and beheld the man whose plans to invade Mexico he himself, more than a generation afterward, was to carry out as Commander of the American Army. Scott, there and then, arrived at conclusions which a lifetime of thought and experiences confirmed. ”It was President Jefferson who directed and animated the prosecution,” he declares in his ”Memoirs.” Scott records the political alignment that resulted: ”Hence every Republican clamored for execution. Of course, the Federalists ...

compacted themselves on the other side.”[1038]

Of all within the Hall of Delegates, and, indeed, among the thousands then in Richmond, only two persons appeared to be perfectly at ease. One of them was John Marshall, the other was Aaron Burr. Winfield Scott tells us of the manner of the imperiled man as he appeared in court on that sultry midday of May: ”There he stood, in the hands of power, on the brink of danger, as composed, as immovable, as one of Canova's living marbles.” But, says Scott, ”Marshall was the master spirit of the scene.”[1039]

Gathered about Burr were four of his counsel, the fifth and most powerful of his defenders, Luther Martin, not yet having arrived. The now elderly Edmund Randolph, bearing himself with ”overawing dignity”; John Wickham, whose commanding presence corresponded well with his distinguished talents and extensive learning; Benjamin Botts, a very young lawyer, but of conceded ability and noted for a courage, physical and moral, that nothing could shake; and another young attorney, John Baker, a cripple, as well known for his wit as Botts for his fearlessness--this was the group of men that appeared for the defense.

For the prosecution came Jefferson's United States District Attorney, George Hay--eager, nervous, and not supremely equipped either in mind or attainments; William Wirt--as handsome and attractive as he was eloquent and accomplished, his extreme dissipation[1040] now abandoned, and who, by his brilliant gifts of intellect and character, was beginning to lay the solid foundations of his notable career; and Alexander MacRae, then Lieutenant-Governor of Virginia--a sour-tempered, aggressive, well-informed, and alert old Scotchman, pitiless in his use of sarcasm, caring not the least whom he offended if he thought that his affronts might help the cause for which he fought. David Robertson, the stenographer who reported the trial, was a scholar speaking five or six languages.[1041]

With all these men Marshall was intimately acquainted, and he was well a.s.sured that, in making up his mind in any question which arose, he would have that a.s.sistance upon which he so much relied--exhaustive argument and complete exposition of all the learning on the subject to be decided.

Marshall was liked and admired by the lawyers on both sides, except George Hay, who took Jefferson's view of the Chief Justice. Indeed, the ardent young Republican District Attorney pa.s.sionately espoused any opinion the President expressed. The whole bar understood the strength and limitations of the Chief Justice, the power of his intellect no less than his unfamiliarity with precedents and the learning of the law. From these circ.u.mstances, and from Marshall's political wisdom in giving the lawyers a free hand, resulted a series of forensic encounters seldom witnessed or even tolerated in a court of justice.

The first step in the proceedings was the examination by the grand jury of the Government's witnesses, and its return, or refusal to return, bills of indictment against Burr. When the clerk had called the names of those summoned on the grand jury, Burr arose and addressed the court.

Clad in black silk, hair powdered and queue tied in perfect fas.h.i.+on, the extreme pallor of his face in striking contrast to his large black eyes, he made a rare picture of elegance and distinction in the uncouth surroundings of that democratic a.s.semblage.

The accused man spoke with a quiet dignity and an ”impressive distinctness” which, throughout the trial, so wrought upon the minds of the auditors that, fifty years afterward, some of those who heard him could repeat sentences spoken by him.[1042] Burr now objected to the panel of the grand jury. The law, he said, required the marshal to summon twenty-four freeholders; if any of these had been struck off and others summoned, the act was illegal, and he demanded to know whether this had been done.[1043]

For an hour or more the opposing counsel wrangled over this point.

Randolph hints at the strategy of the defense: ”There never was such a torrent of prejudice excited against any man, before a court of justice, as against colonel Burr, and by means which we shall presently unfold.”

Marshall sustained Burr's exception: undoubtedly the marshal had acted ”with the most scrupulous regard to what he believed to be the law,”

but, if he had changed the original panel, he had transcended his authority.[1044] It was then developed that the panel had been changed, and the persons thus illegally placed on the grand jury were dismissed.[1045]

”With regret,” Burr demanded the right to challenge the remainder of the grand jury ”for favour.”[1046] Hay conceded the point, and Burr challenged Senator William Branch Giles. Merely upon the doc.u.ments in Jefferson's Special Message to Congress, Giles had advocated that the writ of habeas corpus be suspended, and this, argued Burr, he could have done only if he supposed ”that there was a rebellion or insurrection, and a public danger, of no common kind.” This action of Giles was a matter of record; moreover, he had publicly made statements to the same effect.[1047]

Senator Giles admitted that he had acted and spoken as Burr charged; and while denying that he held any ”personal resentments against the accused,” and a.s.serting that he could act fairly as a grand juror, he graciously offered to withdraw. Marshall mildly observed that ”if any gentleman has made up and declared his mind, it would be best for him to withdraw.” With superb courtesy, Burr disavowed any reflection on Giles; it was merely above ”human nature” that he should not be prejudiced. ”So far from having any animosity against him, he would have been one of those whom I should have ranked among my personal friends.”

Burr then challenged Colonel Wilson Cary Nicholas,[1048] who spiritedly demanded the objections to him. Nicholas ”entertained a bitterly personal animosity” against him, replied Burr. He would not, however, insist upon ”further inquiry” if Nicholas would withdraw as Giles had done. Nicholas then addressed the court. He had been a member of the National House, he said, ”when the attempt was made to elect colonel Burr president,” and everybody knew how he felt about that incident. He had been in the Senate for three years ”while colonel Burr was president of that body,” and had done all he could to nominate Clinton in Burr's stead.