Volume III Part 59 (1/2)
If this were not so, then a man levying war in one part of the country might be construed to be present at and taking part in hostilities at the most distant point of the Republic--a partic.i.p.ator in ”every overt act performed anywhere”; and he would be liable to trial and conviction ”in any state on the continent where any overt act has been committed”
by anybody. ”He may be proved to be guilty of an overt act laid in the indictment in which he had no personal partic.i.p.ation, by proving that he advised it, or that he committed other acts.”[1269]
If Burr were guilty of treason in connection with the a.s.semblage on Blennerha.s.sett's island, it was only because Burr procured the men to meet for the purpose of levying war against the United States. But the fact that he did procure the treasonable a.s.semblage must be charged in the indictment and proved by two witnesses, precisely as must actual physical presence--since the procuring of the a.s.semblage takes the place of presence at it. ”If in one case,” declared Marshall, ”the presence of the individual make the guilt of the a.s.semblage his guilt, and in the other case the procurement by the individual make the guilt of the a.s.semblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses.”[1270]
Neither presence nor procurement could, therefore, be proved by collateral testimony: ”No presumptive evidence, no facts from which presence may be conjectured or inferred will satisfy the const.i.tution and the law.” And ”if procurement take the place of presence and become part of the overt act, then no presumptive evidence, no facts from which the procurement may be conjectured, or inferred, can satisfy the const.i.tution and the law.
”The mind is not to be led to the conclusion that the individual was present by a train of conjectures, of inferences, or of reasoning; the fact must be proved by two witnesses,” as required by the Const.i.tution.
”Neither, where procurement supplies the want of presence, is the mind to be conducted to the conclusion that the accused procured the a.s.sembly, by a train of conjectures or inferences or of reasoning; the fact itself must be proved by two witnesses.”[1271]
To the objection that this could ”scarcely ever” be done, since ”the advising or procurement of treason is a secret transaction,” the answer was, said Marshall, ”that the difficulty of proving a fact will not justify conviction without proof.” And most ”certainly it will not justify conviction without [one] direct and positive witness in a case where the const.i.tution requires two.” The true inference from ”this circ.u.mstance” was ”that the advising of the fact is not within the const.i.tutional definition of the crime. To advise or procure a treason ... is not treason in itself.”[1272]
The testimony which the Government now proposed to offer was to ”prove--what? the overt act laid in the indictment? that the prisoner was one of those who a.s.sembled at Blennerha.s.sett's island? No!” But, instead, ”evidence [of] subsequent transactions at a different place and in a different state.” But such ”testimony was not relevant.” If it could be introduced at all, it would be ”only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such a manner that the question of fact ought to be left with the jury.”[1273]
Before closing, Marshall answered the threats of Hay and Wirt that, if he decided in favor of Burr, he would be impeached: ”That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true.... No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pa.s.s from him without self reproach, would drain it to the bottom. But if he have no choice in the case, if there be no alternative presented to him but a dereliction of duty or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country who can hesitate which to embrace.”[1274]
Let the jury apply the law as announced to the facts as proved and ”find a verdict of guilty or not guilty as their own consciences shall direct.”
The next morning the pet.i.t jury retired, but quickly returned.
Marshall's brother-in-law, Colonel Edward Carrington, foreman, rose and informed the court that the jury had agreed upon a verdict.
”Let it be read,” gravely ordered Marshall.
And Colonel Carrington read the words of that peculiar verdict:
”We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty.”[1275]
Instantly Burr, Martin, Wickham, and Botts were on their feet protesting. This was no verdict, according to law. It was informal, irregular. In such cases, said Burr, the jury always was sent back to alter it or else the court itself corrected it; and he accurately stated the proper procedure.
Discussion followed. Hay insisted that the verdict be received and recorded as returned. ”It was like the whole play,” exclaimed Martin, ”Much Ado About Nothing.” Of course the verdict must be corrected. Did the jury mean to ”censure ... the court for suppressing irrelevant testimony?” Unthinkable! And if not, they ought to answer simply ”Guilty” or ”Not Guilty.”[1276]
Colonel Carrington informed the court that, among themselves, the jury had said that ”they would alter the verdict if it was informal--it was in fact a verdict of acquittal.” Richard E. Parker, also of the jury, said he never would agree to change the form--they knew what they were about when they adopted it. Parker was ”a violent Jeffersonian partisan,” and Burr's friends had reproved him for accepting such a man as a member of the jury.[1277]
Soothingly Marshall directed that the verdict ”stand on the bill” as the jury wished it; but, since it was ”in effect a verdict of acquittal,”
let ”an entry be made on the record of 'Not Guilty.'”
The Chief Justice ”politely thanked the jury for their patient attention during the whole course of this long trial, and then discharged them.”[1278]
A week before Marshall delivered his opinion, an attempt was made to induce Blennerha.s.sett to betray Burr. On August 23 William Duane, editor of the _Aurora_, and an intimate friend, supporter, and agent of Jefferson, approached Blennerha.s.sett for that purpose, and offered to go to Was.h.i.+ngton, ”now or at any time hereafter,” in his behalf. Duane a.s.sured him that the Administration would refuse him (Duane) ”nothing he should ask.” But Blennerha.s.sett repulsed Duane's advances.[1279]
Hay, angry and discomfited, entered a _nolle prosequi_ to the indictments of Dayton, Blennerha.s.sett, and the others for the same crime; but, in obedience to Jefferson's orders, demanded that all of them, Burr included, be still held under the charge of treason, that they might be sent for trial to some place where an overt act might have been committed.[1280] Marshall, after enduring another long argument, gently put the application aside because all the conspirators were now to be tried upon the charge of misdemeanor under the second indictment.[1281]
Marshall's motives were clearer than ever to Jefferson. ”The event has been what was evidently intended from the beginning of the trial; ...
not only to clear Burr, but to prevent the evidence from ever going before the world. But this latter case must not take place.” Hay must see to it that ”not a single witness be paid or permitted to depart until his testimony has been committed to writing.... These whole proceedings will be laid before Congress, that they may ... provide the proper remedy.”[1282]
Jefferson ordered Hay to press for trial on the indictment for misdemeanor, not with the expectation of convicting Burr, but in the hope that some sort of testimony would be brought out that would convict Marshall in the court of public opinion, and perhaps serve as a pretext for impeaching him. Thus, in the second trial of which we are now to be spectators, ”the chief-justice was occupied in hearing testimony intended for use not against Burr, but against himself.”[1283]
It was for this reason that Marshall, when the trial for misdemeanor began, threw open wide the doors to testimony.[1284]
Burr's counsel, made unwise by victory, insisted that he should not be required to give bail, and Marshall, although the point had been decided and was not open to dispute, permitted and actually encouraged exasperatingly extended argument upon it.[1285] Burr had submitted to give bail at the beginning, said Botts, not because it was ”demandable of right,” but because he and his counsel ”had reason to apprehend danger ... from the violence and turbulence of the mob.”[1286]
Marshall was careful to deliver another long and, except for the political effect, wholly unnecessary opinion; nor was it directly on the matter at issue. Counsel floundered through a tangle of questions, Marshall exhibiting apparent indecision by manifesting great concern, even on the simplest points.