Volume III Part 50 (1/2)

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 s.h.i.+eld 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 Was.h.i.+ngton, 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.